Artificial Intelligence will have a great impact on many aspects of our life, including IP protection. Investments on AI development are increasing and strong competition amongst various countries already started, with USA and China leading the path. EU is also planning investments and study researches, including a call for tender relating to “Trends and Developments in Artificial Intelligence - Challenges to the Intellectual Property Rights Framework” launched on March 2019. As we will see, current copyright laws in EU are probably not covering AI results. The question is whether protection is needed; and in this case what kind of protection would be more advisable, taking into consideration the effects - and the possible counter-effects - on human authors’ protection and the economy.
1. Results produced by AI
Examples of works of art created by AI are now numerous. One case concerns the Collective “Obvious”, based in Paris, that used the IT system GAN (Generative Adversarial Network) to produce a portrait in a pictorial style between the 14th and 20th centuries. The goal was to produce a portrait that could not be distinguished by a work created by a human author, with reference to style and subject, and at the same time “original” (in the sense that it was not identical to prior paintings). The result was a work of art named “Compte de Bellamy”, that went to auction at Christies in October 2018. Similar examples relate to the songs realized by the “Creativity Machine” of Dr. Thaler, that in one single weekend produced 11,000 new music tracks. In these cases, the natural person/s collect the data input and expose the IT systems to such data, choosing the goal of the activity, however without making any decision as to the actual expressive form of the final work of art. It is the IT system that through a generator elaborates various results; such results are then selected by a second device (the discriminator) based on their indistinguishability from a work of human creation and on the basis of their "originality".
2. Creation in Copyright
Works of art are protected since they are the author’s own intellectual creation, i.e. the result of the choice, sequence and combination realized by the author (see ECJ 16th July 2009, C-5/08 – Infopaq). As indicated above, AI works cannot be distinguished by human creations, is so far as they look like them. Therefore, in judging from the features of the work, there should be no difference between AI and human creations, also considering that the threshold for the protection of the latter is generally considered to be rather low. However, there is a key question here to be answered, i.e. whether creation as such implies conscience and will. If this is the case, AI works could not qualify for the protection, as the IT systems could hardly be said to exercise conscience and will for the creation.
3. Author as a natural person
Another issue concerns the possibility for a non-human entity to acquire the copyright on a work of art. According to the vast majority of copyright laws in the world, only natural persons can be authors, and acquire both economic as well as moral rights. The latter can hardly be conferred to a device. In this respect one could make reference to the debate originated in the USA in relation to the famous “Naruto” portrait, that was a photograph taken by a macaque, using the camera let on purpose unattended by the owner, the photographer David Slater, to allow spontaneous activities by the group of monkeys that he was observing in 2011. The photographer claimed to be the owner of the photograph, however the United States Court of Appeals of the Ninth Circuit found differently with its decision of April 23, 2018. In 2014 the US Copyright Office expressly established that copyright can only protect original works of authorship, i.e. created by a human being, excluding works created by “nature, animals, or plants”. Therefore, it would seem that AI works autonomously produced by the IT system could not qualify for copyright protection. In other words, protection could be granted only when there is human intervention in the process carried out by the AI. After all, one has to bear in mind that the approach toward AI should be based on the key principle according to which the center and focus of the protection is and remain the human being. Therefore, AI is a tool and should not be the goal or the focus of the protection.
4. If AI cannot be protected by copyright, is there a need for another form of protection?
If AI cannot be protected by copyright, as indicated above, the fear exists that this will result in decrease of investments in AI, thus limiting the possibility of quickly reaching all the positive effects that AI seems to promise. For this reason, some countries are going far and debating the possibility and opportunity to even granting legal subjectivity to AI (for instance, Saudi Arabia would have granted citizenship to a robot named Sophie, while Tokyo would have granted residence to another robot called Shibuya Mirai). Setting aside these extreme positions, that would require careful examination of many issues (first of all, ethical and philosophic issues), it would seem that there are a number of options available to try and protect AI’s results. For instance, one could reconsider the notion of creativity, and extend it to comprehend works created by AI, enhancing human intervention consisting of selecting the data collected and entered into the machine and choosing the parameters that define the objective of the machine's activity. It is also possible to think of attributing a kind of sui generis right to AI (rather than copyright), also given the circumstance that the value behind AI seems to concern more the investments than the creativity.
5. “Killing” human authors?
Finally, it has to be considered that AI produces (and will increasingly produce) high amounts of works that will not be distinguishable from works created by human beings, as indicated above. One certainly shares the view that AI should be used to improve wellbeing for human beings, rather than the other way around. Therefore, it would seem rather reasonable to try and maintain high protection for human beings when they create works of art, and exclude any protection, or grant minor protection, to the results of AI activities. However, it is necessary to also think to possible countereffects of this approach. Works created by human beings, albeit substantially similar to those created by AI, will present higher barriers to exploitation than the latter, that would be in public domain, or subject to a shorter deadline for the protection, or in any event probably cheaper. Would this benefit and promote human creativity, or will there be an opposite effect? In this scenario, a possibility is that the notion of creation (and the relating copyright protection) is limited to those works of art realized by a human being, which are the result of an intuitive creative act, not reproducible by a machine. However, since creativity and its nature has been quite a complex issue to define (and still is), one wonders whether it is actually possible to draw the line above indicated. Also, it should be carefully consider how this conclusion will impact to the job market in the creative industries (setting aside the circumstance that AI will probably dramatically change the way through which such industries will operate).