Research Paper – 2019
Intellectual Property (IP) law is an umbrella term for the legal framework that governs the ownership and rights associated with creations of the mind. IP Law could be divided into two categories: copyright and industrial property. While some rights are granted automatically to its author, such as copyright, others might need to be registered for its author to be considered the rightful owner; this is the case for patents or trademarks. Generally, ownership rights are restricted to either natural or legal persons. The Japanese government in 2016 was considering introducing a new system for protecting intellectual property generated by a non-human entity.
With the development of artificial intelligence’s (AI) autonomy, multiple fields of law are being challenged and legal questions are emerging. The exponential increase of independence in AI leads to think their creator will soon have little control over their actions. Granting personhood to AI finds more and more supporters in the literature, scholars are thinking of a new liability regime but the question of AI’s creative works also is being discussed. Most national and international regulation grants rights to legal or natural persons, but the primary reason is the idea of protecting human’s creation. Behind a legal person, there are individual humans who are the actual author of the protected matter, ingenuity has always been considered to be exclusively the provenance of mankind. However, in the case of AI, the original creator could primarily be the AI instead of the human.
The law has already implemented a regime for protecting copyrights, patents, trade marks and many more. At first, the regulator or court could try to use this existing framework to protect AI’s creation. Nonetheless, a new set of rules will most likely be required not only IP law protect creation from being misused, it also give economic rights.
- What is Artificial intelligence (AI)?
The perception of Artificial intelligence is constantly changing. Originally perceived only as a tool, AI capacities have been extended over the past decades. AI programs can perform tasks requiring intelligence, and have the ability to learn. Thus, the question could be if AI would also have the ability to “create”.
Softwares are considered as literary works, their author being the programmer. Nonetheless, it could be argued that some AI, which has the ability to alter their own program in response to external and internal stimuli, could be also the author of the software. For now, any piece of work created by a computer could fall into the notion of computer generated work. AI generated works are considered as computer generated work. According to the UK Copyrights Designs and Patent Act, a computer generated work is defined as a work that is generated by a computer such that there is no human author, ownership of such a work is given to the person by “whom the arrangements necessary for the creation of the works are undertaken”. Authorship of Computer generated work is a question which has been considered by the Whitford Committee as early as 1977. Nevertheless, computer and AI has tremendously evolved since the late 70’s, but the framework regulating computer generated work still does not reflect the reality.
- Requirement for protecting a piece of work produced by AI
- Rules regarding the creation of a piece of work
Intellectual property protected works are regarded as products of the mind. According to the definition of the World Intellectual Property Organisation, Intellectual property refers “to products of the mind inventions, literary and artistic works, any symbols, name, images and designs used in commerce.” Intellectual property was designed to compensate the author and avoid the issue of free-rider. Rewarding the author for the hard work and the effort put into the creation by granting an exclusive right on the creation prevents the infringement of property and encourages innovation.
In general, to be the owner of a copyrights, unlike patent law, no formal registration is required. Nonetheless, the piece of work which is a product of the mind should meet certain requirements. In French civil law, the definition of product of the mind is not defined, the Code of Intellectual Property gives a negative definition, stating what not a product of the mind is. The conditions qualifying for a product of the mind were set by case law. The product of the mind should be original (in a sense of uniqueness) and should be materialised in a concrete way (exterior form). However, the criterion of uniqueness and originality has been explicitly implemented by European Law and the European Union Court of Justice. In the United Kingdom, the Copyrights, Design and Patent Act requires the product to be a “work” which should be “original” and its author must be a “qualifying person”. There is no requirement in the case law nor in the statute a requirement for the work to be through human endeavour. The United States however required in copyrights registration the work to be the product of human authors.
- AI are the author but Human are the fictional owner of the right
Nowadays, contrary to companies, AI programs by themselves are capable of actually producing creative literary works but are also utilised in the production of protectable designs. The reality is AI has already produced works independently of any human’s intervention such as four pieces of classical music composed by Iamus. If such a work was created by a human, its author will be granted rights over the creation. In the case of “computer generated works” who could be considered as the author? Multiple conditions should be met to claim authorship. Taking again the example of an AI creating a piece of music. The person who instructed the AI the command to create the piece of work could not satisfy all the conditions of the originality. This person does not satisfy the criterion of originality. If also the AI could not qualify as well as the owner of the IP rights how could those works be regulated and protected.
Indeed, no human can truly claim to be the exclusive author of the work produced by an autonomous AI program. Therefore, allowing humans to register a piece of work generated by an AI means implementing a fiction which creates uncertainty and inconsistency as it will be difficult to claim ownership.
- Granting personhood to AI
The statute of a legal person allows companies to enjoy rights and be held liable. Although it is widely admitted that companies are not the actual author of a work, ownership of copyrights are regularly granted to legal persons. In the case of an AI machine, different individuals are involved in the process such as the original programmer, the data operator and/or the owner for the time being of the program. As different legal and natural persons could potentially have rights from a computer generated work, this uncertainty is most likely to produce litigation. According to Davies, legal personality should be granted to AI, which will allow them to be entitled to copyrights.
There are also alternatives, animals are protected and have rights, such as not being tortured, sometimes legal personality is not necessary to enjoy basic rights. Granting legal personality to non-human is not an innovation as mentioned as earlier for the example of the legal person, however, it involved multiple components.
Conclusion: Some author has offered possible alternative solutions to the Intellectual property law. Instead of granting legal personality to the AI, the work generated by the AI could have a shared ownership, with all legal persons or natural persons involved in its creation. Some others also suggested the possibility for AI generated work to fall into the public domain. Such a solution could however have a negative effect on innovation.
Resources:
- Drahos, P. “The universality of intellectual property rights: Origins and development”
- Komatani, T. « IP of AI – New type of intellectual property? How TRIPS Agreement is involved?” AIPPI E-News, n° 47, (accessed on 23/03/2019) http://aippi.org/ip-of-ai/.
- Editorial, « Artificial intelligence and IP », World Patent Information 46 (2016) A1 – A3.
- Burt, R., and Davies C. “Software: intellectual property and artificial intelligence”, Research Handbook on Intellectual Property and Creative Industries.
- World Intellectual Property Organisation, “What is Intellectual Property”, WPO Publication n° 450(E), accessed on 23/03/2019 <https://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf >
- Cubert, J.A., and Bone, R.G.A., “The law of intellectual property created by artificial intelligence”, Research Handbook on the Law of Artificial Intelligence.
- Davies, C.R., “An evolutionary step in intellectual property rights – Artificial intelligence and intellectual property”, Computer Law & Security Review 27 (2011) 601-619 pp. , 606 p. SciVerse ScienceDirect.
- Lucas, A., Lucas, H.-J., Lucas-Schloetter, A. « Traité de la propriété litteraire et artistique », 4th Edition, Paris, LexisNexis, 2012, p.33
- Article 1.3 of the Directive 2009/24/CE, Article 6 of the Directive 93/98/CEE and Article 3 of the Directive 96/9/CE.
- CJUE, 01/12/2011, n° C-145/10, Case Eva-Maria Painer v. Standard VerlagsGmbH and Others.
- CDPA s.1(1)(a).
- Davies, C. R., Computer Law &Security Review 27 (2017) p. 607.
- Church, T. “How artificial intelligence will take work away from design studios and what you can do about it” – Digital Art online (https://www.digitalartsonline.co.uk/news/interactive-design/how-artificial-intelligence-will-take-work-away-from-design-studios-what-you-can-do-about-it/ ) accessed 23/03/2019.
- “Can Machines be creatives?” (https://www.youtube.com/watch?v=JOkslCT8DZU&feature=youtu.be Universidad de Malaga).
- ThinkH+, “Enjeux juridique de l’intelligence artificielle”, Propriété intellectuelle et données personelles, Esquisse du rapport final, à destination de la Mission Villani, 17/12/2017, accessed 23/03/2019 http://thplus.org/landing/wp-content/uploads/2018/04/ThinkH-Enjeux-juridiques-de-lIA.pdf