Authors, Art and Algorithms Presented by: Dr Noam Shemtov, Reader in IP & Tech' Law (Deputy Head-Centre for Commercial Law Studies) From Literary Poetry To Literary Property - Contrary to the modern perception of the author as the sole creator of (literary) art, the historical figure of the author produced creative works through traditional connectivity - In Ancient Greece, creations of the mind were to be understood as already being in the public domain • Authors were merely acting as artisans • E.g. Plato and Aristotle regarded themselves as mere vessels receiving gifts of arts and literature from the muses - Similarly in ancient Asian culture, no individual authorship existed • Authors were claimed to be editors and explainers for transmitting ancient knowledge passed by the ancestors, e.g. Confucius - Early modern Europe carried on the medieval conception of learning as a gift from God - Authors were regarded as transmitters of a divine gift; books were thus regarded as special objects, in which God himself might be understood to have some rights - However, economic and social changes in European societies during the 18th century radically reshaped the understanding of the notion of the author - Book printing industry in the UK • Miller v Taylor, per Aston J who wrote that a literary work belonged to the individual that created it, because it constitutes an imprinting of the author's personality, therewith constituting a "work of original authorship" • The right of ownership was attributed to the author, rather than the book printer/publisher - • This notion was eventually merged with the Lockean reward theory • Author's rights were ultimately protected by the Statute of Anne Enlightenment movement & literary Romanticism in Europe • Kant & Hegel's personality theory, establishing a moral connection between work and author • The author is seen as individual creative genius Human Authors In Common Law - S.9(1) CDPA "In this Part 'author, in relation to a work, means the person who creates it • The maxim that an individual 'person' was his own property is key to Lockean theory, thereby enabling through labor the transformation of raw material into private property - Community for Creative Non-Violence v Reid, 490 U.S. 730 (1989) Human Authors In Civil Law - Human authorship is generally assumed - S. 7 URHG "The author is the creator of the work" - Art. L. 111-1 Code de la propriété intellectuelle - C-5/08 INFOPAQ International A/S v Dankse Dagblades Forening "the author's own intellectual creation" Non-Human Authors - Some more recent economical developments, encouraged legislators and policy makers to introduce a new kind of authorship • Computer generated works in the UK (s. 9(3) CDPA, also found in jurisdictions like NZ, HK, SA & India) • - Work for hire doctrine, i.e. corporate authorship So, will a new industrial revolution change the copyright system once again? Industry 4.0 In The Industrial Landscape - 1st Industrial Revolution (1784) - - • Steam energy, coal, transport • Geography: UK • Investments: railways 2nd Industrial Revolution (1870) • Electricity, oil, mass production • Geography: Germany & Continental Europe • Investments: electricity and road infrastructure 3rd Industrial Revolution (1960s) • Electronics and IT, flight, nuclear energy • Geography: USA • Investments: universities, technological centers, e.g. Silicon Valley, the internet infrastructure - 4th Industrial Revolution (Today) • Connectivity, software, artificial intelligence, Big Data • Geography: Global/ Far East? Investments: cloud/digital infrastructure, e.g. large capacity data centers, high speed data transfers Artificial Intelligence Definitions - Artificial Intelligence (Al) - capable of performing predefined tasks - Artificial General Intelligence (AGI) - performing intellectual tasks on par with humans; cognitive computation - Artificial Super Intelligence (ASI) - "any intellect that greatly exceeds the cognitive performance of humans in virtually all domains of interest" (Nick Bostrom in Superintelligence: Paths, Dangers and Strategies) Creative Industries 4.0 - Al transforming the creative industries, in art, literature and beyond - Artworks created by Al are likely to change the legal landscape, particularly in copyright law - Main questions that arise concerns the concept of authorship Edmond Belamy - Portrait de Edmond Belamy 2018 by French art collective OBVIOUS - Sold at Christie's Auction in October 2018 for $432,000 (estimated price $9000) - Created by Generative Adversarial Network (GAN) - GAN was given a set of data in form of paintings from various epochs and with a variety of styles (oil paintings, watercolor etc.) AARON - AARON was the first creative Al - Developed by British artist Harold Cohen - AARON is an algorithm that autonomously creates art works - Cohen trained AARON by firstly providing data of abstract forms (circles, triangles), and added step by step, data on the use of color, human forms, plants etc. - In order to materialize AARON's artworks, physical machinery was connected to the computer Literature - The Nikkei Hoshi Shinichi Literary Award in Japan allows non-human authors to present their work without the judges knowing the nature of the competitors. - 11 out of 1,450 applications were partially written by a machine. - "The Day a computer writes a Novel" made it past the first round of the contest. - The Chinese publishing house Cheers Publishing, published a collection of 139 poems, with the title "Sunshine Misses Windows" signed by Microsoft Little Ice. - The algorithm memorized more than 500 sonnets, from which it created 10,000 poems. AIVA Composer - Aiva is an Al capable of composing emotional soundtracks for films, video games, commercials and any type of entertainment content - The algorithm has been learning the art of music composition by reading through a large collection of music partitions, written by Mozart, Beethoven, Bach and other composers, to create mathematical model representation of what music is. - This model is then used by AVIA to write completely unique music - Recently, Aiva became the first virtual artist to have her creations registered with an author's rights society (SACEM) First Cognitive Movie Trailer By IBM's Watson - After Watson watched the movie, it identified 10 moments that would be the best candidates for a trailer - The IBM & Fox team did not know which scenes the system would pick to create a complete trailer - While Watson could select the moments, it is not an editor - The sequences were arranged and edited by an IBM filmmaker into a comprehensive trailer - According to IBM "the System allowed us to look at moment in the movie in different ways- moments that might not have traditionally made the cut, were now short-listed candidates. [...] when we reviews all the scenes that the system selected, one didn't seem to fit with the bigger story we were trying to tell - so we decided not to take it MARCHESA & IBM'S WATSON COGNITIVE DRESS - The dress' cognitive creation relies on a mix of Watson APIs, cognitive tools from IBM Research, solutions from Watson developer partner Inno360 and the creative vision from the Marchesa design team. - Marchesa selected five key human emotions curiosity - that they wanted the dress to convey joy, passion, excitement, encouragement & - IBM Research then fed data into the cognitive color design tool, that understands the psychological effects of colors, the interrelationships between emotions and image aesthetics; - As well as hundreds of images associated with Marchesa dresses in order to understand and learn the brand's color palette - The final cognitive thread in the collaboration weaves technology into the fabric of the dress - Using Watson Tone Analyzer the dress will tap into social sentiment from Twitter users on the dress, extracting context around the tone of their messages For Consideration - Does Al generated/created art count as copyrightable works? - Are Al artworks original for copyright law purposes? - What is the difference in the creative process? Does it matter? - Does copyright law need a notion of some kind of authorship for Al? - What about electronic personhood? Who Is The Author? Computer-Generated Works - S.9(3) CDPA "In the case of a 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." - Often claimed to be a legal fiction that derogates from the general rule as the author being the one who creates the work - - However, who is responsible for the necessary arrangements? • Programmer • User • Person who sells/produces software • Person instructing or training the programmer • Person customizing the software • A combination? Presumption of human intervention at some point Who Is The Author? Work For Hire Doctrine - Another legal fiction? - Status of author is attributed to an employer or a commissioning party • - Control- agency issue Problem of personhood under the law • Can Al be an employee in the widest sense? • What about separate legal personality for companies? Who Is The Author? The Author's Own Intellectual Creation The European Perspective - INFOPAQ: works that are original in the sense that they are the author's own intellectual creation shall be protected. [...] No other criteria shall be applied to determine their eligibility for protection. - In, C-604/10 Football Dataco, the notion of the author's own intellectual creation was further developed stating developed starting that originality is satisfied when through t the selection or arrangement, its author expresses his or her creative ability in an original manner by making free and creative choices, and thus, stamps his or her 'personal touch' on the work (C-145/10 Painer) - The Court held further that there would be no room for free and creative choices where the work was dictated by "technical considerations, rules or constraints" (Football Dataco) - EU law has a strong emphasis on the personality of the author, leaning on the civil law tradition • The essential function copyright is to protect the moral rights in the work and ensure a reward for creative effort.'(GC in Case T-76/89 ITP) • Human authorship is not only assumed, but required the assumption here is that personality is a human trait - This is in stark contrast with the traditional 'skill, labor, judgement' requirement under UK law Some Thoughts - If these works were created by human beings, they would be granted copyright protection - Is Al merely an enabling tool, like a camera? - Economic value, as well as investment in creative Al technology may be stifled, if there is no adequate legal protection - Could Japan be a leading example? • Japanese copyright law reform is currently addressing authorship/ownership issues for Al generated artworks • Japan Times reports that "Legislative changes are thought necessary to protect Al-created works from unauthorized use, and to enable the developer of the Al system to be fairly compensated"