By Yasser M. El-Gamal, Partner, Intellectual Property | Ehab Samuel, Counsel, Intellectual Property
Why it matters: Should the artistic efforts of robots, computers or other artificially intelligent machines be afforded copyright protection? If so, who, or what, would be the “creator” or “author” of those works? It’s an intriguing question indeed—one that U.S. and foreign copyright laws and courts are scrambling to address as they attempt to keep up with the fast pace of AI innovations.
Detailed discussion: In a recent article, a senior lecturer in intellectual property law at the University of Sussex in England posed an intriguing question: “Should robot artists be given copyright protection?”
At the outset, the author pointed to examples of recent AI artistic creations, such as a painting unveiled in the Netherlands in 2016 titled “The Next Rembrandt,” which bore all the hallmarks of a long-lost painting by the artist, but instead was “a new artwork generated by a computer that had analyzed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn.” The author noted that the computer had used “machine learning to analyze and reproduce technical and aesthetic elements in Rembrandt’s works, including lighting, colour, brush-strokes and geometric patterns.” The result was “a portrait produced based on the styles and motifs found in Rembrandt’s art but produced by algorithms.”
Other recent AI projects include a Japanese computer program that produced a short novel in 2016 that made it to the second round of a national literary prize contest, as well as a Google-owned “Deep Mind” computer program that can generate music in the artistic styles of composers just by “listening” to a compendium of their works.
The issue becomes whether these AI-created works can be protected by copyright—as the individuals or companies commissioning them would surely demand—or whether due to their origin they cannot be granted copyright protection and are thus free to be used and reused at will. As no international copyright treaties have dealt with the issue to date, the legal ramifications become quite complicated because they can change based on the law of the jurisdiction where the work was created. For example, on the one hand, the copyright laws of Spain and Germany, and recent case law in Australia, specify that only works created by human beings can be afforded copyright protection. On the other hand, in the United Kingdom, Ireland and New Zealand, computer-generated works can be copyrighted by the individual or corporation that commissioned the work, i.e., by the person who made the arrangements necessary for the creation of the work.
As for the United States, the issue remains unresolved and has not yet been tested in the U.S. courts. The U.S. Copyright Office has weighed in, however. In 2014, in response to the notorious “monkey selfie” case out of the U.S. Court of Appeals, Ninth Circuit (Naruto v. Slater, which recently settled), the Copyright Office issued specific rules on this topic as part of the latest edition of the Compendium of U.S. Copyright Office Practices, Third Edition. Section 306 of the Compendium, titled “The Human Authorship Requirement,” reads in relevant part that:
“The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’ … Because copyright law is limited to ‘original intellectual conceptions of the author,’ the Office will refuse to register a claim if it determines that a human being did not create the work.”
Section 313.2 of the Compendium gives examples of “Works That Lack Human Authorship” for purposes of Section 306. At the outset, Section 313.2 provides that “the Office will not register works produced by nature, animals or plants,” including specifically “[a] photograph taken by a monkey.”
Relevant here, Section 313.2 states that “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Notably, none of the examples given for illustrating a lack of human authorship in this context—including “[r]educing or enlarging the size of a preexisting work of authorship”—apply to a situation where a computer or other AI machine is specifically programmed by humans to create a work of art along the lines of the examples discussed above. And it could certainly be argued that the language “without any creative input or intervention from a human author” applies to those situations and thereby removes the AI-created works from the parameters of Section 306.
As innovation in AI-created works forges ahead, the copyright laws in the United States and around the world are scrambling to keep up. We will keep you apprised of further developments in this interesting area of copyright law.