ARTIFICIAL INTELLIGENCE AND COPYRIGHTS

Anupriya Shyam

4th year, University Institute of Legal Studies, P.U., Chandigarh

“The rise of machines is here, but they do not come as conquerors, they come as creators.”

The past century has witnessed things beyond imagination being contrived and pioneered.
Contemporary phenomenon like self-driven cars, Internet of things (IOT), cloud computing and
robots to name a few have reinstated the gospel truth that innovation is unbounded and capable of
endless augmentation. One such marvel of the erudite world of innovation is Artificial Intelligence
(AI). Where at one time, computer programs were mere tools in the hands of humans, this concept
has undergone a 360 degree turn, with the advancing of ‘artificial intelligence’ i.e., the machine
displayed intelligence. AI has been defined by Stuart Russell and Peter Norvig1 as “the designing
and building of intelligent agents that receive percepts from the environment and take actions that
affect that environment.” To quote Jensen Huang, the CEO of Nvidia, “Software is eating the
world, but AI is going to eat Software.” AI has essentially become a ‘creator’ of works worth
protecting by Copyrights. For instance, the Next Remebrant, a computer generated 3D artwork,
which analyzed 346 paintings by a 17th century Dutch artist, and worked on facial recognition
algorithm; is an epitome of creative AI work2. Other such works include a novel written by a
Japanese Computer Program which qualified for the second round of a national literary prize3 and
a Google owned artificial intelligence company ‘Deep Mind’ that has created software that
can generate music by listening to recordings4. If such innovative works are not protected by
copyright, they will fall into the public domain, thus discouraging the creators of such AI’s from
further innovation. Technology has become advanced and matters of Intellectual Property

1
3 STUART RUSSELL & PETER NORVIG, ARTIFICIAL INTELLIGENCE: A MODERN APPROACH, (3RD ED. 2015).
2
J WALTER THOMPSON AMSTERDAM, https://www.jwt.com/en/work/thenextrembrandt.
3
Chloe Olewitz, A Japanese AI program just wrote a short novel, and it almost won a literary prize, DIGITAL TRENDS,
(Mar. 23, 2016, 4:52 PM), https://www.digitaltrends.com/cool-tech/japanese-ai-writes-novel-passes-first-round-
nationanl-literary-prize/.
4
Davin Coldewey, Google’s WaveNet uses neural nets to generate eerily convincing speech and music, TECH
CRUNCH, ( Sep. 10, 2016), https://techcrunch.com/2016/09/09/googles-wavenet-uses-neural-nets-to-generate-eerily-
convincing-speech-and-music/.
ambiguous. Such innovative works undoubtedly need to be protected, but in whom shall the
copyright lie, the creator of the program or the program itself?

Implications for copyright law

Whether a program can be awarded rights is a matter of sizzling debate and the prima facie answer
is a conspicuous no, the obvious explanation being that a computer program is not a legal person.
The works created using AI are essentially computer-generated works, which are works created in
circumstances such that there is no human author of the work.5Copyright protection is awarded to
the author of the work which, in relation to any literary, dramatic, musical or artistic work which
is computer-generated, the person who causes the work to be created6.

The authorship rests in the person who causes the work to be created, and to determine that, the
proximity of the person in creating the work has to be seen. Also, there exists no legal framework
that stipulates that a machine or program can be an infringing party. The fastidious inference is
that robots cannot be held liable for acts or omission that cause damage to third parties, and thus
do not hold any IPR’s. In an English case7, the judge regarded the computer as a tool in much the
same way as a pen is a tool. Later in 1998, section 9(3)8 did away with any ambiguities by stating
that in relation to computer generated works, the author shall be taken to be the person by whom
the arrangements necessary for the creation of the work are undertaken.”

Problem with this approach

The present approach follows the Incentive theory9 by granting ownership rights to the creator of
the computer program and not the program itself, as Computers cannot be encouraged or
incentivized to create more, and thus the main purpose behind granting the IP protection flounders.
On one hand, granting authorship to the human creator of the AI for works produced by it, appears
to be the most realistic approach; however the following issues are raised:

5
Section 178, Copyrights, Designs and Patents Act, 1988, United Kingdom.
6
Section 2(d), The Copyright Act, 1957, India.
7
Express Newspapers plc v Liverpool Daily Post & Echo 3 All ER 680.
8
Copyrights, Designs and Patents Act, 1988.
9
WILLIAM D. NORDHAUS, INVENTION, GROWTH, AND WELFARE: A THEORETICAL TREATMENT OF TECHNOLOGICAL
CHANGE, (Cambridge: M.I.T. Press, 1969).
  Firstly, this approach negates the basic tenet of copyright protection, i.e., the requirement
of ‘creativity’10. The creator of the AI, is no doubt the creative inventor of that device,
however, when a work is autonomously created by an AI, with zero human intervention, it
is the result of the AI’s creativity and would be unjust to grants its copyright to its creator.
“No one derives rules for the computer to control its creativity; rather, using its learning
algorithm and based on the training examples it is given, it develops rules on its own”11
Therefore, all originality comes from the machine, instead of the developer or the user.
 Secondly, this approach can inevitably entangle ownerships especially if multiple
developers are involved in the creation of an AI system12. Moreover, with the
commercialization of such programs, though created by one person, it will be in the hands
of countless purchasers and users. The end user may just be pressing a button, however, it
would have taken the developer a lot of efforts to create that program. Thus any work
created by such AI, or any infringement done by it could be attributed to the purchaser/
owner, the holder or the actual creator of it. In the English case of Nova Productions Ltd v
Mazooma Games Ltd13, it was held that individual frames shown on a screen when playing
a computer game were computer-generated artistic works. The author of these frames was
the person who had devised the rules and logic used to create them. The player of the game
was not the author, because they had not contributed any artistic skill or labor. This
precedent also is not the elixir to the multifarious and complex issues raised by AI.

Non humans as authors

Some experts14 have postulated that “computers should be allowed to patent their inventions”
otherwise innovation will decline and individuals will claim credit for inventions that are not
genuinely theirs, rather the creation of an AI system. “In absence of any litigation on non-humans
as authors, the only precedent is that of the “monkey selfie case”15, where a sulawesi crested

10
Eastern Book Company and Ors v DB Modak and Ors (2008) 1 SCC 1 (India).
11
Paul Drawing Patrick, Autonomous Creation – Creation by Robots: Who owns the IP Rights?, MASTRICHT
UNIVERSITY, (Mar. 5, 2015), https://law.maastrichtuniversity.nl/ipkm/autonomous-creation-creation-by-robots-who-
owns-the-ip-rights/#_ftn5.
12
J. Lohr, Artificial intelligence drives new thinking on patent rights, LIMEGREEN IP NEWS, (July 15, 2016),
http://www.limegreenipnews.com/2016/07/artificial-intelligence-drives-new-thinking-on-patent-rights/.
13
Nova Productions Ltd v Mazooma Games Ltd , [2007] EMLR 427.
14
R. Abbott, I Think, Therefore I Invent: Creative Computers and the Future of Patent Law, 57 Boston College Law
Review, (2016).
15
Naruto v David John Slater.
macaque monkey accidently took a series of photographs by the equipment left on the forest floor
by a photographer. PETA (People for the Ethical Treatment of Animals) argued that the monkey
who took the photographs should be the legal owner of their copyright. In 2016, the judge
dismissed the case stating that since an animal (non-human) does not have legal standing in the
court, it may not sue or pursue copyright in the court.

Later, the US Copyright Office released a guidance16, whereby it noted that works "produced by
nature, animals, or plants" cannot be granted copyright protection.

The road ahead

More recently, a European Parliament Resolution17 by the Committee on Legal Affairs of the
European Parliament has emphasized that there needs to be an extension of criteria for “own
intellectual” creation for copyrightable works produced by computers or robots. This resolution
followed from Mady Delvaux’s report on robotics and AI where the draft motion called for the
European Commission to consider that “at least the most sophisticated autonomous robots could
be established as having the status of electronic persons having specific rights and obligations.”
This puts us in a situation to rejig our Intellectual Property laws due to the plethora of questions
that arise. For instance, Questions such as how to provide incentives and protection of investment
for artists and the industries that work with such systems18, but also what kind of ownership results
from works (partially) created by AI machines19. To solve some of the issues the Committee calls
for ‘common Union definitions’ and a ‘comprehensive Union system for registration’ with criteria
for classification of robots.

Conclusion

The gap in the Copyright laws needs to be filled to protect the valuable artistic works from rolling
into the public domain. It is dangerous, if not impossible to grant rights to computer programs.
The concept of ‘Deemed electronic persons’ as annotated by Mady Delvaux be followed in this

16
U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § 101 (3d ed. 2017).
17
A8-0005/2017 (of January 27th, 2017)
18
B. Schafer et al, A Fourth Law of Robotics? Copyright and the law and ethics of machine co- production, Artificial
Intelligence and Law [Vol. 23, Issue 3] (September 2015) pp. 217-240; B. Schafer, Editorial: The Future of IP Law
in an Age of Artificial Intelligence, SCRIPTed [Vol. 13, Issue 3] (December 2016), via: https://script-ed.org/wp-
content/uploads/2016/12/13-3-schafer.pdf. Accessed 18 March 2017.
19
B. Schafer, Editorial: The Future of IP Law in an Age of Artificial Intelligence, SCRIPTed [Vol. 13, Issue 3]
(December 2016), via: https://script-ed.org/wp-content/uploads/2016/12/13-3-schafer.pdf. Accessed 18 March 2017.
situation20. Such deemed person be entitled to the copyright protection, and make good any
damage caused, however provisions can be made for both the holder and creator of the AI to be
entitled to a certain fixed percentage of share in the profits generated by the creative work of the
AI. This drops in as an incentive to the creator. A separate body of individuals can be designated
to deal with the rights and liabilities of AI, along with performing the task of classifying them on
the degree of their autonomy and thus acting as the custodian to the beeswax of the intelligent
computer programs.

20
A8-0005/2017 (of January 27th, 2017).