The concept of artificial intelligence (AI), where an object is capable of human thinking, has been around for centuries, where classical philosophers have attempted to describe human thinking as a mechanical manipulation of symbols and numbers. However, in the present era, AI can be understood as a computer system that can perform tasks that normally require human intelligence. Today’s AI software is capable of producing works that were never been created by computers before such as artistic works like producing music in various genres, writing poems, and even news stories. These works however need protection under the law, hence copyright should be granted to these works. However, the real issues to be considered are whether an AI can be granted authorship ownership of copyright or whether the non-human AI can infringe the copyrights of other creators. Below I will break down these and other issues and further understand the implementation of the present copyright law and the hardships in the implication of new copyright laws in the present rocketing technological growth.
Copyright Under Traditional Law
The idea of copyright has been in existence since the 18th century when the first legislation, the Copyright Act of 1710, was passed by the Parliament of Great Britain. Ever since, copyright law has developed in consistence with the technological changes and advances in sciences, such as photography, films, sound recording and broadcasting. Traditionally, the authorship of copyright was granted if the works were done with great skill, judgment and labor which has failed to stand the test of time. However, the Copyrights, Designs and Patents Act (1988) has been enacted as an excellent effort to keep abreast with technological developments. The Act in Section 1(1)(a) lists the works in which copyright can subsist as “original literary, dramatic, musical or artistic works”. Over time, the courts have attempted to define the word ‘original’. Originality, in this context, does not adhere to the dictionary meaning. Peterson J. opined that “the originality which is required relates to the expression of thought”. The Court of Justice of the European Union (CJEU) in its landmark Infopaq decision stated that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation”. It is stressed enough that the originality in the work should reflect the personality of the author. Another essential element for a work to be copyrighted is the creation of the mind and human effort. In general, originality in copyright is operated in two levels. One is for general artistic and literary works and the other is for computer programs and databases.
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Computer-Generated Works
Computer programs and databases have been included in the WIPO Copyright Treaty under the Berne Convention enacted in the year 1996. The copyright treaty has made sure to include computer programs under copyright protection as they were essential to the growth of software and technology. In the same way, has also found it necessary that there is a need for computer-generated works in the statute. Hence, the CDPA Act defines computer-generated works in Section 178 as “in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work”. It is given in Section 9(3) of the CDPA Act that “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”. These are literary, dramatic, musical, or artistic works that have no human author. For example, in weather forecasting there is often little human skill or input is required. The forecast is generated by a computer that is in direct communication with a weather satellite. In no way does the operator influence the form or content of the output. In ‘Nova Productions Ltd v Mazooma Games Ltd & Ors’ (2006), it was held that frames appear on a screen when playing a computer game where 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, not having contributed any artistic skill or labor. However, there are several computer software that facilitates the production of literary or artistic works. For example, the creation of music or films. Some of these applications are open source which will reach the end user for free. In such a case where the end-user uses the software to create an artistic work, for example, a pop song, the author of the copyright will be the end-user and not the creator of the software. It can be understood in such a way that the end-user has used the software to his convenience as a tool. Having said this, the question arising is whether an AI can be an author of copyright.
AI as the Author of Copyright
Computer-generated works are different from AI works which created their own rules and logic by machine learning. In order to understand whether an AI can become an author of copyright, the basic issue of whether there can be a non-human author must be resolved. In ‘Naruto’, where a monkey has taken several pictures from the camera of David Salter, the question arose whether a monkey can be the owner of the copyright of these pictures. It was held by the court that the statutory provisions do not allow a non-human to be the author of the copyright. It was reiterated in the DABUS patent case that the AI software itself cannot be the inventor of the work created by the AI. Under the present statutory provisions, only a human can become an inventor of a patent as well as the author in copyright. however, the technology in AI is rapidly developing which may give rise to a novel perception of AI which in turn may tend to change the current legal position. The current legal position is that if there is no human interference, then there is no copyright. If an AI creates a work entirely on its own and then if the copyright cannot be granted to anyone, the work will ultimately end up in the public domain. This is bad for society because if there is no copyright protection for work then it will allow anyone to use and distribute the work. this will in turn affect the growth of AI technology. While AI on its own has no interest in owning the work it creates, the AI producers and end-users want copyright protection for the fruits of their AI-created work. Just like the author’s motivation to create work will be diminished if he or she knew anyone could use and exploit their artwork, writing, or song once completed, AI producers’ and end-users’ motivations will be diminished if their AI’s work simply entered the public domain.
AI and Open License Products
Any work either literary, artistic or even educational, they are automatically copyrighted. Copyright does not require to be registered. Copyright is granted to the author since the minute the expression of the idea has been put into a tangible form. For example, when a book is written by an author, it is copyrighted even though it has not been registered, published or circulated. However, when the author gives the license to a particular person, then that person may have the right to use the book within the terms as mentioned in the license agreement. However, an open license is when the same product is been made free for use by the larger public. In the present era of the Internet, it is very common to come across open-source work. Mostly, the products or tools are made free to the public and the users are only required to give proper attribution to the author of the copyright. The AI software may be copyrighted and the author of the copyright is the person who has contributed to the code of the AI. However, the software of the AI itself is different from the work created by the AI because the product given by the AI is entirely different from the codes which govern the AI. As it has already been established, the author of the code and algorithms are the owner of the copyright of the AI as well as the works done by the AI. In a slightly different scenario, if the AI has been licensed to a user and the user comes up with his own idea to create a literary work, then the owner of the copyright of the product produced by the AI will be the end-user. Here the AI can be understood to be merely a tool helping to create the work, such as a pen and paper in writing a novel. Again, the concept of originality, skill, and labor will come into play. If the end-user has not been able to show his expression of an original idea, then the copyright will belong to the creator of the AI.
Coming back to the open license, there are two scenarios to be dealt with here. They are that the AI is using several copyrighted and open-sourced works to analyze and compute to get the final result of the work and the AI itself is been open-licensed for the use of the public. Firstly, when the AI is fed with a plethora of copyrighted products to analyze, does the AI infringe the copyrights? This issue can be simply answered by making an analogy of the human mind. When the AI is fed with the works to analyze the data, there is no copyright infringement until the output given by the AI infringes the original works. When the AI is given access to the copyrighted works, it can be compared to a person who thinks of such a work, for instance, a song. The person may sing the song in his mind as long as he wishes and there is no copyright infringement. Likewise, the AI also does not infringe the copyright unless the output has a resemblance to the original source. The second scenario is that when AI tools and interfaces are available for the public under various open licenses. For example, Microsoft and Google have many of their AI systems which are made available under an open license. Here, it is necessary to understand that the owner of the copyright has permitted the end-user to use the product without any repercussions. Hence, the question of infringement does not arise. Businesses are free to license AI tools like any other software under their own conditions whichever suits their business. In the above said Google and Microsoft AI tools, the AI is given to large public and in return, they get inputs of data from all over the world and they may also use this extensive usage to promote for advertisements. Thus, as of now, there have been no legal issues regarding open-licensing AI tools and interfaces. However, it is necessary to look into new possibilities in the near future where AI itself may infringe copyrights by using open licenses and may decide to go against its own code transforming into a sentient being.
AI and Sentient Beings
Generally, when talking about AI, the first references that pop into the mind are from sci-fi movies such as ‘Terminator’. The general idea of AI that has been fed into the mind is that of a robot that can make its own choices like humans. AI is different from sentient beings by just one point. An AI software is programmed with a source code and then the AI system is given a huge number of data and the AI will run through the data and give its end result by either supervised or unsupervised machine learning. The user of the AI may have a particular output in mind or he may not, but the AI does not go against the source code. The AI will do everything if the source code commands it. However, sentient beings are a currently fictional concept, where the being can choose to whether obey or disobey the source code. In simple words, the AI is been given a choice of free will. This is a concept which we have only seen in movies, it can also be noted that soon we will be able to see the development of AI into sentient beings as huge funds are being invested in research and development. The question of whether these sentient beings can be granted copyright is awaiting in the near future.
Conclusion
To sum up, artificial intelligence is making its way into day-to-day human lives and growing at an unstoppable pace. The introduction of AI into cultural and artistic works enables the machine to learn the nuances and interpretations of art in a human way but also teaches us, humans as what the machines and technology are capable of. It is necessary to understand the law is not static and it is very dynamic to the working of the human environment. As we have developed through ages so will law and it is no news to copyright law. Until now the traditional copyright law has stood the test of time and it will so persist be. The concept of AI being granted a copyright may be distant for us to understand as there are no precedents. However, it is high time to understand that changes or remuneration of laws are indeed essential for the smooth functioning of society. Although, the present law dictates that non-humans cannot be granted copyright, AI tools and interfaces will soon need a sui-generis law for the art and literary works created without any human intervention. However, law is only placed in action after the pieces are set in motion, i.e., only after recognizing that AI can make works, the law will be made. But it is very essential that we need to know and be prepared for what is about to come. Hence, this issue can be discussed with people with experience in relevant fields and thereby find a solution.
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