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Can copyright accommodate artificial intelligence?

April 18, 2019

Whether and to what extent humans should and could be replaced by machines has become somewhat of a hot topic of late. Self-driving vehicles are practically on the verge of becoming mainstream and a painting created entirely by artificial intelligence (AI) was recently the first to go under the hammer at a major art auction (for nearly half a million dollars no less!).

Putting aside the more practical and ethical questions surrounding this topic, the interplay between copyright and AI makes very interesting food for thought. Namely, legally-speaking, can such artwork be protected by copyright in the first place and, if so, who should be credited as the owner?


Edmond de Belamy

The painting mentioned above (if indeed it can be called a painting) appears not dissimilar to a Renaissance work, showing a blurry portrait of a man of noble appearance whose gaze is directed towards the camera. The end result appears to have been painted by standard brush strokes and is indistinguishable (at least to my untrained eye) from a human-created painting.

According to the website of the company which created the work, the team undergoes an intensive data selection process and then generates new images by using machine learning algorithms (which were invented in 2014 by Ian Goodfellow) to mimic the characteristics of the image feed dataset.


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Is an AI work fit for copyright protection?

The U.S. courts famously denied copyright protection last year to a selfie picture taken by a monkey, confirming that a work must be created by a human being to be protected by copyright. On the other hand, if copyright protects the expression of an idea, then clearly the AI output is an expression by some stretch of the imagination.

Works are generally protected by copyright if they are original, being the author’s “own intellectual creation”. This begs the question of whether a non-human created work can be protected by copyright in the first place.

EU case law has elaborated on the originality requirements to indicate that it involves making “free and creative choices” and stamping the work with a “personal touch”. Whilst clearly a natural person is capable of this vision, whether the same could be said to be true of an AI machine is debatable, since it lacks autonomy and its operation lies in being fed specific information.

That said, section 9(3) of the UK Copyright, Designs and Patents Act 1988 states that the author of a computer-generated work shall be taken to be “the person by whom the arrangements necessary for the creation of the work are undertaken.” This would seem to imply that the concept of authorship is not necessarily reserved solely to humans.


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If AI works are protectable, who owns the copyright?

In the case of human-created works, this is generally fairly straightforward, the answer being the author (i.e. the creator) of the work.

When it comes to computational creativity, however, ownership is potentially up for grabs by a number of parties. Arguably it could be the machine (being the creator of the image). It could be the party who wrote the AI software/algorithms. Could it potentially also be the person who chooses the dataset from which the new images take their impressions? Maybe even one or more of these parties together own the work, collectively as joint owners.

If, ultimately, copyright protection is not compatible with AI-generated works they would fall into the public domain. This legal uncertainty doesn’t seem a likely answer. Just as it has done recently with the taste of cheese, the scope of protection of copyright law may be further challenged, this time by the increasing advent of modern technology. Once again, we are likely to see the courts grappling increasingly with the ever more complex notions involving machine learning.


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Laura SymonsLaura Symons is an English qualified solicitor with experience working in both private practice and in-house. She has advised a wide range of businesses, with a particular focus on start-ups and the media and entertainment sector. Her work involved advising clients on a broad spectrum of commercial matters, as well as brand protection issues such as copyright, infringement disputes and trade mark registration and opposition.

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