The Future of Copyright law in the Age of Artificial Intelligence

Artificial Intelligence (‘AI’) has become incredibly sophisticated and is fast becoming part of our everyday lives, changing how we transact and interact with each other, and we are still discovering the many ways in which it will have an impact on – and indeed challenge – law, business, society and culture.

Originality Requirement

Both the UK’s Copyright, Designs and Patents Act 1998 (‘CDPA 1998’) and Trinidad’s Copyright Act Ch 82:80 characterize copyright as a property right. According to the Berne Convention, copyright laws are categorised to protect literary, dramatic, musical and artistic works. In order for a piece of work to come within the scope of these categories, such work has to satisfy the originality requirement since only ‘original’ works will attract copyright.

Unlike under patent laws, the originality requirement of copyright does not require novelty or innovation. It does not require a new idea because ideas are not covered by copyright laws. The starting point is the work is not copied and originates from the author. It is worth noting, however, that the originality requirement will vary from jurisdiction to jurisdiction as the Berne Convention does not define originality.

Enter Artificial Intelligence

AI raises complex questions about computer programs and protection of works solely generated by computer programs. The law generally recognises the existence of and protects computer-generated works. Section 9 (3) of the UK’s CDPA 1998, for instance, provides that the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken’. Case law also provides that such computer-generated literary works still require human intervention or the author’s own intellectual creation’ for the creation to have been said to have taken place. In this respect, human programmers and companies who own AI are thus considered natural and legal persons, and are fully responsible under the law and enjoy all the privileges and liabilities associated with it.

What about Autonomous AI?

At present, AI is still at a point which needs human involvement in some way. However, AI is and has been growing incredibly sophisticated, and rather than being limited to ‘operation functions’ and ‘machine learning’, it has evolved to teaching, adapting and applying itself autonomously. This potentially presents a vacuum between the current legal framework and the developments in AI because as computer-generated works expand, the laws at the time of legislation are more than likely incapable to accommodate present-day computer-generated works. Therefore, with lesser human intervention a growing number of AI works are without any form of copyright protection because AI creations would fall into the public domain.

In Canada, Canadian copyright policy tries to separate computer-generated authorship from ownership. The argument is that an AI system is not prohibited explicitly from being an author and could potentially gain authorship rights on original works, however, a lack of ‘intentionality and consciousness’ on the AI’s part may be a barrier to the granting of copyright ownership rights to AI. In any event, the Canadian position holds that since AI lacks consciousness then it (i) cannot enforce infringements against its ‘rights’ and (ii) it is incapable of assigning rights to 3rd parties thus giving rise to commercially unworkable situations.

Moving forward, much will depend on what the courts interpret the work “arrangement” between the AI and the human author to mean in circumstances when applying the use of AI. In 2011, an Australian court denied copyright protection on the basis that the compilation and production of the works was almost entirely automated. It was held that any human contribution was either too anterior or too incidental or ministerial in nature (e.g. changes, corrections, etc.) In other words, unless AI-generated works can directly be attributed to a human author, they would theoretically not be copyrightable and would fall into the public domain upon their creation.

Conclusion

Limiting the protection offered by copyright to a human author leaves works created by AI unprotected and free to be used and reused by anyone. This goes against the original idea and value concept behind copyright protection. Without copyright protection, developers and owners of AI hence lack the incentive to create and improve new technologies due to a lack of financial impetus.

It is, therefore, important to consider; if the work is of a sufficient quality so that it should be protected if a human created it, (meets all the criteria of copyrightable work) then why should it not be protected if AI created it? Subsequently, regulators should modify and restructure current IP laws in order to avoid playing catch up with technology and to prevent the law from getting static.

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The Author is an Attorney-at-Law (Trinidad and Tobago) and a Qualified Barrister (England and Wales). LLM Dissertation with Distinction on the Protective Nature of Trademarks and Passing Off.

Disclaimer: The information provided on this blog does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this blog are for general informational purposes only. Information on this blog may not constitute the most up-to-date legal or other information. Readers of this blog should contact their barrister/attorney to obtain advice with respect to any particular legal matter.

Images Courtesy of Google

Sources

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5. Infopaq case – C-5/08 Infopaq International A/S v Danke Dagbaldes Forening

6. Nova Productions Ltd v Mazooma Games Ltd [2006] EWHC 24 (Ch)

7. Clayden Law, Are Intellectual Property Laws Ready for AI in the UK?<https://www.claydenlaw.co.uk/site/library/clayden-law-news/are-intellectual-property-laws-ready-for-ai-in-the-uk>

8. Dr Paul Lambert, Computer Generated Works and Copyright: Selfies, Traps, Robots, AI and Machine Learning

9. S. Ricketson “The Need for Human Authorship – Australian Developments: Telstra Corp Ltd v Phone Directories Co Pty Ltd (Case Comment)” E.I.P.R. 2012, 34(1), 54. Telstra Corp Ltd v Phone Directories Co Pty Ltd (2011) 90 I.P.R. 1 (Fed Ct (Aus) (Full Ct)).

10. Rex M Shoyama, Intelligent Agents: Authors, Makers, and Owners of Computer Generated Works in Canadian Copyright Law

11. Pratap Devarapalli, ‘Machine learning to machine owning: redefining the copyright ownership from the perspective of Australian, US, UK and EU law’, EIPR [2018] 40(11), 722-728

12. Lee Curtis and Rachel Platts, ‘AI is Coming and it will Change Trade Mark law’ [2017]

13. Andres Guadamuz, ‘ Do Androids Dream of Electric Copyright? Comparative Analysis of Originality in Artificial Intelligence Generated Works’ [2017] I.P.Q. 2017, 2, 169-186

14. Andres Guadamuz, Artificial intelligence and Copyright, WIPO Magazine, October 2017.

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