Can a Robot Create Things?

Author: Laurynas Jurgaitis, METIDA lawyer;

LaurynasArtificial intelligence, or AI, recently has become a very hot topic, breaching the boundaries of discussion among scientists of this field. News of autonomous cars, investments into stock based on algorithm, or robotic physician assistants both provide food for imagination and make one wonder about the effect that artificial intelligence has on human life.

Due to artificial intelligence becoming increasingly autonomous, this technology touches more and more areas of daily living. Neither did artificial intelligence bypass creative activity – a purely human kind of endeavour at a glance. Already there are computer programs that are able to write articles, create music, and paint pictures. Naturally, this might lead to the question of whether a ‘creation’ produced with artificial intelligence could enjoy copyright protection. Can a computer program be recognized as an author?

These are not just some theoretical questions, because the ‘creative’ potential of artificial intelligence already is being actively used in journalism, the industries of music and video games. Based on the effective regulation of copyright, only an ‘original product of creative activity’ can be recognized a creation. Under the case law of the European Union courts, a creation is original if it constitutes the product of intellectual activity of its author, conveys the author’s personality, and the author was able to freely express their creative abilities and creatively choose the creative media in the process of making it. It is likely that work created exclusively with the help of artificial intelligence and without any human input is not copyright subject and does not have any legal protection. This would mean that said creations can be used freely and gratuitously, which would have a highly negative impact on companies that have invested into developing the underlying AI technologies. The size of the investments which companies will decide to make into developing AI software may depend on the extent of intellectual property protection, including copyright protection, these investments will enjoy. In the absence of any legal protection, potential competition could copy and reproduce the product of ‘work’ of artificial intelligence instantly and without incurring any costs, which would cool any desire to invest and develop AI technology.

The relevancy of this problem has an excellent illustration in the report with recommendations on civil law rules on robotics that the European Parliament published this year, noting that ‘humankind stands on the threshold of an era when ever more sophisticated robots, bots, androids and other manifestations of artificial intelligence („AI“) seem to be poised to unleash a new industrial revolution, which is likely to leave no stratum of society untouched.’ In the European Parliament’s opinion, in the light of the fast growth of artificial intelligence over the past few years, it is very important for the legislature to consider its legal and ethical implications, with particular focus on strengthening the degree of protection afforded by intellectual property rights. On top of that, the European Parliament noted that criteria for ‘own intellectual creation’ for copyrightable works produced by computers or robots are to be elaborated.

All that makes one stop and think about the established concepts of ‘creativity,’ ‘originality,’ and ‘creator’ that have acquired a traditional status in intellectual property law, and what the future holds in store for them. To be able to grant legal protection to a ‘creation’ produced by a computer program, the boundaries of the above traditional concepts need to be expanded, or an alternative framework of legal protection has to be established to deal with the protection of products of AI programs exclusively. The latter solution would be more acceptable as it would allow one to consider the specifics of the ‘creative’ process of artificial intelligence better, leading to adequate extent of legal protection and a sustainable development of AI technologies.

A decision to grant such ‘creations’ copyright protection would lead to the question of the subject of copyright: who should be considered the author and the holder of copyright. The developer of the AI software and the company that owns this software or the employee of said company who instructed the software to produce the ‘creation’ covered by copyright alike could be potential candidates to be nominated as the ‘author.’ For the sake of legal certainty, companies investing into technologies at hand should enter into agreements with technology developers and people who control these technologies, clearly identifying the subject of copyright.

While the discussion on the new robotic ‘revolution’ is only gaining momentum, further role of intellectual property right in it is unknown, and there are more questions than there are answers. Still, we will likely see a response from the legislature in the foreseeable future, which should bring in some clarity. We promise to keep you, dear Readers, updated of future developments in this field.

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