SHOULD THE WORKS CREATED BY ARTIFICIAL INTELLIGENCE MACHINE

BE PROTECTED UNDER THE COPYRIGHT LAW?

BY – YASHIK SAHNI

INTRODUCTION

The introduction or coming into being of artificial intelligence and its development has
formed challenges in the world of Intellectual Property law; especially copyright law. It is
now similar to the situation when computers were introduced and at that time what was seen
that whether the work that was made or generated by computer was protected under the wide
amid of copyright law or not? The result which was logical that came out of this question or
the answer to this very question was that computer might have produced the work but the
work was created because of human touch or human influence by giving the computer
commands to create the work. The computers were used merely as a tool to produce works
where creator saved himself time and labor to create such works. The computers cannot
function on its own, it needs a human to operate.

Then came the artificial intelligence systems that brought about a storm in the world of
intellectual property law. Since the year 2010 artificial intelligence has developed by
tremendous speed. For example – Google’s Deepmind, what it does is that it is based on the
concept of machine learning. Now first of all what do we mean by machine learning, well
machine learning is a process where the machine on its own develops itself or improves itself
by accessing data and use it to learn by themselves. This deepmind learns to play videogames
similar to that how human beings play. What it does is that it creates a neural network or as I
would like to call it a mini brain of itself and learn itself by accessing data from various
sources. Obviously, the work that an artificial intelligence creates is no match to the work
what a genius person creates but it may be better than what you and I can create that is it can
be better than what an ordinary human being creates. The intelligence that is used in the
works that is created by the artificial intelligence system itself is not that of a human being
but of the artificial intelligence system itself. The works created by artificial intelligence is on
par with that of human beings. Artificial intelligence generated work or created work satisfy
the human needs as in what the humans demand for therefore in my opinion they should be
protected under the copyright law as they satisfy the interests of the public at large.
The laws that are prevalent in today’s world or as you can say the position of current
copyright laws in many countries is that they protect only works generated by human beings,
they do not protect works created or generated by machines. The works generated or created
by artificial intelligence systems are not regarded as works therefore not subject to copyright.
Now the big question that has arose or raised is that should artificial intelligence generated
works be protected or not? This question itself gives a view that the laws related to copyright
law should be amended in order to include works created or generated by machines or
Artificial Intelligence machines be protected under copyright law.

WHAT MAKES AI CREATIVE?

Artificial intelligent systems have grown in a tremendous speed from being a laboratory tech.
to now being of some practical usage. In today’s time the artificial intelligence machines
have come so far that now they are designed in such a way so as to produce useful work on
its own. Some of its features are provided below:-

1. Creativity

Artificial intelligence system not only copy stuff from sources that are accessible but also
they create work that are original and new. They work as creative devices. This
characteristic of artificial intelligence machine is very important in the world of
intellectual property especially when copyrightable work is in question.

2. Autonomous

If a device can make or do a high level task on its own without any external help then it is
said to be autonomous in nature. They are able to work independently without or with
minimum human influence. Artificial intelligence machines also make works
autonomously and without any human intervention.

3. Unpredictable

Artificial intelligence system can create a new work without copying the original one as
they are capable of creating unpredictable routes to optimal solutions. What it does is that
 it breaks up the data and then recomposes them to make a completely different work
altogether.
4. Learning Capability

Artificial intelligence system receives data and then it continues to process data because
of the use of feedbacks it gets and keeps on improving the results with the help of those
feedbacks.

5. Efficiency

Artificial intelligent systems are accurate and can process large amounts of data
accurately and efficiently than a human being is capable of. They are more efficient and
accurate than humans itself.

6. Free Choice

Artificial intelligent systems have a free choice mechanism that means that if they have
alternatives then they will choose the best alternative and arrive at a solution that is the
best outcome.

7. Goal Oriented

The artificial intelligence systems are goal oriented in the sense that they work according
to the goals that they are set for. E.g.- story writing, drawings, etc.

CAN ARTIFICIAL INTELLIGENCE GENERATED WORKS BE PROTECTED

UNDER CURRENT STATUTES?

JAPAN

Under the Copyright Law of Japan, copyrightable works are “production or works in which
thoughts or sentiments are expressed in a creative way and which falls within the literary,
scientific, artistic or musical domain.”1

The term creativity here means that the personality of the author is expressed in any way this
can be inferred by various court cases or legal precedent. Therefore, only works created by
1
The Copyright law of Japan, 1970, art. 2(1)(i)
humans can be protected under copyright law. Therefore, The Copyright Law of Japan thus
does not protect works created by artificial intelligent machines.

GERMANY

Under the Copyright Law of Germany, it says that “works in this law are only individuals’
intellectual creations”2 (section 2, paragraph 2)

This means that works created by only individuals are protectable and therefore the works
created by artificial intelligent machines are not protectable under the Copyright Law of
Germany.

UNITED KINGDOM

Under the Copyright, Designs and Patents Act of UK it is provided under the section 9
paragraph 3 of the act says about author of the work: -

“In case of literary, dramatic, musical or artistic work which is computer generated, the
author shall be taken to be the person by whom the arrangements necessary for the creation
of the work are undertaken”3

So, under the Copyright, Designs and Patents Act of UK the works generated or created by
artificial intelligent machine is protected.

UNITED STATES OF AMERICA

United states constitution has the power to make congress enact copyright laws which says
“the congress shall have power to promote the progress of science and useful arts for limited
times to author …. the exclusive right to their respective writing...”4 (Article 1, Section 8,
Clause 8)

The United States supreme court said that in a case5 that “writings are founded in the creative
powers of the mind”. There has been no case related to the artificial intelligent machine
2
Act on Copyright and Related Rights, 1965, s. 2(2) (Germany)
3
The Copyright, Designs and Patents Act, 1988, s.9(3)
4
The Constitution of United States of America, 1787, art. I sec.8(8)
5
Trademark Cases 100 U.S. 82 (1879)
works and also the United States Copyright Office has expressly declared that the works
created by artificial intelligent machines may not be protected. (The Compendium of US
Copyright Office Practices)

THEORETICAL JUSTIFICATIONS

The next big question is that whether the theories of copyright allows for protection of works
generated or created by artificial intelligent machines? To answer this question there are
some theories laid down below: -

The Labor Theory

This theory was given by John Locke in his work “Second Treatise of Government” as

follows:

“Though the earth, and all inferior creatures, be common to all men, yet every man has a
property in his own person: this nobody has any right to but himself. The labour of his body,
and the work of his hands, we may say, are properly his. Whatsoever then he removes out of
the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to
it something that is his own, and thereby makes it his property.”6

What this theory actually tries to explain is that when labour is done then value is created and
the person who has given birth to that thing should also have the right to enjoy it because of
labour being put into by him. But this theory only talks about labour of human beings and not
of machines therefore it does not justify if the works created by artificial intelligent machines
should be protected under copyright law or not.

The Personality Theory

This theory was given by Georg Wilhelm Friedrich Hegel in his work “philosophy of right”
as follows: -

6
John Locke, “The Second Treatise of Civil Government”, University of Colorado website, available at
https://rintintin.colorado.edu/~vancecd/phil215/Locke.pdf (last accessed on 19th October, 2019)
“A person has as his substantive end the right of putting his will into any and every thing and
thereby making it his, because it has no such end in itself and derives its destiny and soul
from his will. This is the absolute right of appropriation which man has over all things.”7

What this theory tries to explain is that if a person has created a thing by putting his
expression into that thing then then he has a right to have that thing as his property. Here the
works created by the artificial intelligent machine is not derived from its own will. Therefore,
the works created by the artificial intelligent machines cannot be considered as work
protected under copyright law.

The Incentive Theory

The United States Constitution states that the purpose of copyright or aim of copyright is to
promote development of science and arts and not to protect personality or labour of the
creator or author. The United States Supreme Court laid down the incentive theory in a case
Sony Corp. v. Universal City Studios, Inc.8, where it said that:-

“The monopoly privileges that Congress may authorize are neither unlimited nor primarily
designed to provide a special private benefit. Rather, the limited grant is a means by which
an important public purpose may be achieved. It is intended to motivate the creative activity
of authors and inventors by the provision of a special reward, and to allow the public access
to the products of their genius after the limited period of exclusive control has expired.”9

This theory basically tries to say that copyright is used to protect creation of the work for
public’s benefit and gives an incentive to authors, motivates them to create more and more
creative works. So if work is created by artificial intelligence machine then it should be
protected to promote creations of works like that. This theory actually justifies why works
created by artificial intelligence machine should be protected under the copyright.

7
John Carlin, Culture Ventures: Artistic Appropriation and Intellectual Property Law, Heinonline website,
available at https://heinonline.org/HOL/LandingPage?handle=hein.journals/cjla13&div=10&id=&page=, (last
accessed on 19th October, 2019)
8
464 U.S. 417 (1984)
9
Jeffrey Helewitz and Leah K. Edwards, Entertainment Law, Delmar Cengage Learning Publishers, United
Kingdom, 2017
PROBLEMS OF APPLYING TRADITIONAL COPYRIGHT FRAMEWORK

There comes a lot of obstacles in applying tradition copyright frameworks to works that are

created by artificial intelligent machines.

Machine as Author

There is this possibility or proposal that we give authorship to the artificial intelligence
machine or software. By giving allocation or authorship rights to the machine itself we will
be in consonance with the courts approach of awarding the person who is responsible for the
creation of the copyrightable work. As the machine is responsible for the end product there
comes a little difficulty that software’s and machines are not legal entity. It is logical to grant
authorship rights to the machine itself but the courts will not grant an entity the authorship
rights which is not even a legal person or entity.

If we turn machines into authors then the only benefit that comes out of it is that it is based
upon the very core idea of intellectual property rights that creator is the author itself. This
will also be beneficial because then the complex legal solutions to assign the authorship to
the persons who have not actually contributed in the process that is creative will be solved.

It is also possible to assign authorship rights to the artificial intelligence system in

circumstances stated below: -
 That artificial intelligence machine create works that are random or can’t be anticipated.
 The algorithm on which the artificial intelligence machine works should be devoid of any
human intervention to ensure it acts independently.
 The artificial intelligence machine on its own to decide when to actually create the work.

Machines can be allocated authorship rights only when they act as humans and the
characteristic of self-awareness develops into them. The machine should be capable of
deciding when and how the work is to be produced only then they will act autonomously. The
European union commission is actually trying to amend laws in order to provide rights to
machine or robots. Now the core idea behind intellectual property rights is to provide
incentive to the authors but in case of machines being author they do not need any incentive
to create works. If we provide authorship to the machines then the other people who are
involved in the creative process such as programmer and end user will be deprived of their
rights and they have also invested their time, money and labour in the creative process as
well. In this case a solution is there that we shall provide joint authorship to the programmer
and the algorithm. But the problem here arises that the both the authors work are to be
distinguishable but in a complex mechanism such as machine learning it is next to impossible
to determine what was the authors contribution in the creation of the work. So this solution of
providing joint authorship also is not applicable because it is very difficult to determine who
contributed how much in a complex mechanism involved in the works created by the
artificial intelligence machines.

Programmer as Author

Programmer is the one person who has poured out his heart and soul. They are the ones who
understand the algorithm and are also very close to the creative process and in fact are the
biggest contributor in the creative process itself. They can also explain the algorithm better
than anyone else because basically it is their brainchild that is the algorithm. They have
invested their labour and time into making such algorithm that they should be rewarded for it
by giving them the authorship rights to the works created by the artificial intelligence
machine. Without programmer into the equation and its creativity the final product would
have not been made possible at all.

By giving authorship rights to the programmer the core idea of the intellectual property rights
get highlighted which is that it will give incentives to them to further improve the artificial
intelligence machine and also will increase the number of artificial intelligence works.

The proof of such argument can be seen in cases such as Nova Productions Ltd v Mazooma
Games Ltd.,10 in this case the parties were electronic pool game creators. Here the court that
is the UK Royal Court gave the authorship rights to the programmer as he was the creator of
infringed element of the video game. Another example of a similar case like that can be of the
Atari Inc. v. North American Philips Consumer Elec. Corp., 11 in this case also the authorship
was given to the programmer who was the creator of in game images and display which were
disputed.

10
[2007] EWCA Civ 219; [2007] EMLR 427; [2007]
11
459 U.S. 880 (1982);
If the copyright is provided or granted to the programmer of the algorithm then it would be
injustice to the programme or the machine itself as the machine on its own actually created
the work and not the programmer. The machine acted autonomously and not the programmer
directly contributed into the making of the work possible. Also the programmers will be
rewarded twice if we give authorship rights to the artificial intelligence created work i.e., one
for the creation of artificial intelligence machine and other for the outputs that come out of
the artificial intelligence machine.

User as Author

User should be the one who should get the authorship rights because he is the one who uses
the artificial intelligence machine as a tool to express his own creative side. It is based upon
the fact that the tool would have never been existed if it wasn’t for the user in the first place.
But this position would be difficult to anticipate when the users contribution is to a single
touch of a button. If we give authorship rights to the user or the end user of the programme
then that will diminish any incentives for the programmers to create or improve the artificial
intelligence machine. This position cannot be defended because it will be seen as free riding
on the efforts and labour of the programmer which is totally unfair in my opinion. It will have
a negative impact on the programmers skill as they will not get any incentives to make new
works and therefore innovation will get kicked off from the world of artificial development
and the artificial intelligence will not grow far or will not develop as it should have been.

In my opinion as a law student it should be given in the public domain so that every person
should be benefitted out of it. It will solve the problem of authorship because then the user of
the programme that is the person who has taken up the open license of the programme will
have to use his creativity and develop or make change to the open sourced programme and
this way the user and the programmer will be the same person and this will ultimately solve
the problem of the authorship as well. Work generated by the artificial intelligence machine
should be open licensed.

PROTECTION PROPOSAL DESIGNED FOR MACHINE AUTHORED WORKS

Immediate Entry into the Public Domain

The most plausible or effective solution for all of this is that the work generated by the
artificial intelligence machine should be provided to the public domain. This solution is
practical and has very minor drawbacks or few drawbacks. This means that the author is the
machine itself here. It is software that is not a legal entity and so no rights will be deprived
off of it because there were no rights at all to begin with. Also the programmer will get his
code copyrighted and because of that it will receive adequate protection and will also be
compensated for. Well the end user was deprived of copyrighting the work generated by the
artificial intelligence machine still he can actually do modification to that and can create a
work of his own and in that derivative work he can get copyright in it. By providing the
works generated by the artificial intelligence machine into the public domain the public will
be benefitted because of the access to creative work without compromising or providing
injustice to the content producers.

If this kind of framework is adopted then the infringers or the alleged infringers have to prove
with evidence that the work was authored by the artificial intelligence machine and the
protection of copyright that has been provided to it is not valid at all. In that case this public
domain framework will have a difficulty of enforcing false copyrights.