AI creations and copyright protection

Although the notion of Artificial Intelligence (AI) is not new, it has created a new paradigm in the global intellectual property landscape. Once cognitive activities were performed only by human beings; now these activities are widely performed by intelligent machines that pose many questions in connection with Intellectual Property Rights (IPRs). The use of AI has increased tremendously in recent times solving complex problems and making improved decisions.

 AI is fundamentally the simulation of human intelligence by machines through intelligent computer programmes. One of the most commonly used examples of AI in recent times is the use of "chatbots" which is basically "live chat" used by many companies for providing basic customer service. Recently, more developments are seen in the arena of AI such as Artificial General Intelligence (AGI) which has advanced level to human-like intelligence. Such type of AGI is commonly called "strong AI" or "true AI".

When new or improved innovation or creation comes, the question of the owner of those IPRs comes regardless of whether they are made by human beings or non-human machines. It's been a debatable issue as to whether the creations of an AI can be taken into consideration for protection under the copyright law or under patent law. In this article, we will confine our discussion to copyright issue only.

It can easily be explored from various sources that AI is not only producing patentable products, it has started producing potentially copyrightable works like newspaper articles, songs, poems and books which are obviously creative and artistic in nature. For  example, Flow Machine developed by a team of Sony researchers is capable of composing music; some other machine like Mubert which has been claimed as the world's first online music composer can continuously produce music in real time. These prompt us to raise the obvious questions: Is the creation of AI copyrightable?  Who would be the copyright owner of such creation? Is it a violation of IPR ethics? These questions are becoming increasingly important these days. A lot of debates could be found on the authorship or ownership of AI creations.

It can be noted that as an extension of Berne Convention (1971) under Article 4 and 5 of the WIPO Copyright Treaty and Article 10(1) and 10(2) of Trade Related Aspects of Intellectual Property Rights (TRIPs), only computer programmes and compilations of data have been protected as copyrightable works. In these treaties, nothing about AI protection has been mentioned. In this connection an interesting example may be found in Naruto's case (Naruto v. David John Slater et al, No. 3:2015-cv-04324,9th Cir.), where a monkey took a 'selfie'. When the monkey's 'selfie' made an issue for a photographer, the US Copyright Office said that "the Copyright Office would not register works produced by animals or machines." They further added, "To qualify as a work of 'authorship' a work must be created by a human being", which was not mentioned in the copyright law before and surprisingly the term 'author' was never defined in this law. On the other hand, the European Union (EU) has recommended in a draft paper that Robots powered by AI could be governed by a "special legal status". The paper suggests that such Robot needs to follow the basic 'civil laws'. The EU's interpretation is somewhat acceptable but the US's refusal to grant  copyright for non-human creation triggers some other questions like: who would own the rights of an AI creation? In some articles it was argued that these problems could be solved using agency law or the person who controls the AI should be given the copyright. Other arguments recommend that the issue of co-authorship can be taken into consideration as and when an AI creation is involved. However, many countries' laws are deficient in terms of AI; hence the refusal of the AI from copyright law is not the ultimate solution to the problem. This should not be the way to handle the creation of AI. Further global attention and consensus are needed to address this challenging issue.

From the WIPO Copyright Treaty and TRIPs agreement, it is evident that at present there is no clear definition and mention of protection in the international treaties. The WIPO Worldwide Symposium held on March 25 to 27, 1991 at Stanford University on Intellectual Property Aspects of AI was strangely silent on many important issues. A careful examination of the symposium paper reveals that it was more focused on defining AI, rather than finding a way forward to cover the issues under IP rights. As a matter of fact, current laws, both at the national and international levels, are not well-equipped to handle this issue. Some people argued in the symposium that as software falls under the copyright laws, AI work could be treated in the same manner. But if humans take ownership of an AI creation, they must take the responsibility of AI's infringement also. Now we are living in a society full of technological magic. It is increasingly controlling our daily lives and will continue to do so even more in the future with the advancement in AI creations.

AI is making progress so fast that the present legal systems are not enough to deal with it. So, the world community must pay attention to its potential legal and ethical implications. Stephen Hawking once put it, "The short-term impact of AI depends on who controls it; the long-term impact depends on whether it can be controlled at all."

Considering the importance of the new thinking on AI's creation and Hawking's prediction, WTO and WIPO should deeply ponder on this issue. As AI becomes harder to distinguish from human creativity, the legal questions relating to authorship are bound to become more complicated in the years to come.

Md. Mamun-Ur-Rashid Askari is Deputy Chief, Bangladesh Tariff Commission.

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