Artificial intelligence is becoming more and more common and its development makes it able to perform tasks practically replacing humans. Due to such wide use of it, it has been started to wonder whether machines can be given rights, so far granted only to humans.
The AI is increasingly used in artistic activity – it creates poems, articles, music, as well as paintings. In this context, it is worth considering the issue of copyright and try to answer the question – do these rights belong to the machine that created the work or can be granted e.g. to the creators of the algorithm.
Discussions should begin with a presentation of the events of 2011. It was then, in one of Indonesian nature reserves, that the monkey Naruto, using a camera belonging to a wildlife photographer – David John Slatter, took a series of photographs of himself and his surroundings. Slatter licensed the press agency to publish the photos taken by the animal, and then the British media published the history of the monkey along with the photos taken by it. In the same year, the editor of Wikimedia Commons published the photos, which he received from one of the British magazines. The Daily Mail sent the pictures taken by the monkey, claiming that they belonged to the public domain – since they were taken by an animal, no one has the copyright on them. Slatter discovered the published photos and ordered their removal. Eventually, in August 2014, the U.S. Copyright Office ruled that the photos cannot be copyrighted, because under U.S. law, only man-made works can be subject to copyright. Works made by machines, plants or animals are not subject to copyright.
The photographs taken by the monkey were published in 2014 in the book Wildlife Personalities, where the copyrights to the photos were granted to D.J. Slatter. The publication was responded to by PETA (People for the Ethical Treatment of Animals) animal rights organization and, acting on behalf of Naruto, sued Slatter and the publishing house for copyright infringement. In 2016, District Court Judge William Orrick stated that although it is necessary and important to protect animal rights, they cannot be granted copyright. In the next instance, the United States Court of Appeals for the Ninth Circuit upheld the District Court ruling. In its opinion to the verdict, the court concluded that the monkey has no legal interest in the law, so there are no grounds for claiming that its copyrights have been infringed.
It is worth considering whether to deny protection to works of art not created by humans at all. It seems that the right solution would be to consider who should be considered as the creator and thus grant him/her legal protection. In the light of the development of artificial intelligence, it is particularly important to regulate legal issues concerning it. Due to the increasing number of examples of the creative activity of machines, the legal situation of works created by them remains unclear.
The recent event in October 2018 may be a good example of the creative activity of machines. For the first time in history, Christie’s auction house in New York sold a painting entirely created by artificial intelligence. Particular interest may be aroused by the fact that instead of the author’s signature we can see the algorithm. This marketing trick also drew attention to the issue of authorship and rights to the painting. Will the creator remain human?
Artificial Intelligence has more and more applications. It is used to write poems, make music, and even musicals. Despite the many examples of its use, it is still difficult to determine who should be entitled to copyright on the works it creates – whether a software developer or a machine or maybe they should not be protected at all.
To support the theory – that the owner of AI will be eligible – we can refer to the CONTU report, which states that a computer, like a typewriter or a camera, is an instrument that can only function if it is activated by a human being. The courts are of the opinion that it is thanks to the element of human creativity that it is possible to create a work. By choosing other solutions – granting the right to the work only to AI or depriving the work of its protection at all – we may endanger the further development of technology.
So far, machines, unlike people, have no legal capacity – so it is difficult for them to become subjects of rights. For this reason, it is the human who should be treated as the author even if he/she does not play an active role in creating the work. It seems that it may be appropriate to consider a machine as a tool: just like a pen, brush or pen that serves to create a work. Such an approach seems understandable, because one should not take into account the difference which tool a person uses to consider something in terms of a work. This approach is also confirmed by Polish legislation, which directly indicates that the subject of copyright, that is, the creator of a work, can only be a person. Thus, on the basis of the current law, it is excluded that AI could be considered as the author.
According to the Polish copyright law, a work is any manifestation of creative activity of an individual character, established in any form, regardless of value, purpose and manner of expression. The concept is therefore quite broad and it seems that it could also cover AI products, which often do not differ from those created by human. However, on the basis of the current regulations, AI cannot be considered as the author. Article 8 of the copyright law clearly states that the creator is the person, that is, the human being.
EU law is also trying to adapt to the upcoming technological changes. For the time being, the judiciary is granting copyright only to people, as can be seen in the Infopaq case, where protection of original works is granted and originality is the result of the author’s creative thinking. This means that the work reflects his/her personality.
However, early this year in China, the Shenzhen Court ruled that an article generated by artificial intelligence is covered by copyright. The technology company Tencent uses a system called Dreamwriter, which automatically generates content on business and financial markets. In 2018 Shanghai Yingxun Technology Company posted one of these texts on its page with annonation – automatically generated by a Dreamwriter robot from Tencent. Tencent found that there was a copyright infringement and the case was taken to court. The Shanghai Company defended the fact that the article was not created by a human, but by a robot, so it is in the public domain, so anyone can use it. However, the court found that the article meets the requirements of the work and shows originality. The defendant company paid 1.5 thousand yuan. According to the Chinese court’s ruling, the works created by the AI can be protected, leaving aside the issue of human participation in its creation. The Shenzhen court focused on the characteristics of the work and its originality.
Artificial intelligence is used more and more widely – also in creative spheres. This means that it will become a new challenge for intellectual property law. Even if AI’s works meet the statutory criteria for copyright protection, it should not be granted the same rights as a human being because of its lack of soul, awareness, intentionality, emotion and free will. In order not to diminish the role of the human being in the creative process, it is sufficient to carry out appropriate tests, e.g. on the model of the Turing test, in which a human being is to distinguish a robot from another human being. It is supposed to prove that machines master the ability to think in a way similar to human. For a machine – even the most developed and autonomous one – to start functioning, a human factor is needed. It is the human who creates the algorithm, selects and enters the teaching data. Artificial intelligence cannot replace people – they are the ones who create new trends and set the directions for the development of painting or music. Algorithms of machine learning can at most generate new works, which will be variations of paintings previously painted by people.
