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The EU and the UK provides for requirement of originality, substantial investment and necessary arrangements with involvement of human personal touch to AI generated works for them to avail copyright protection.
This essay will report the legal implications about treating AI generated-works under copyright protection in response to the issues raised by WIPO. This essay will mainly address the question of whether any authorship and ownership be attributed to AI generated works. The essay will categorise them into three groups.
In the first group, this essay will address whether a human author should be required or not to extend copyright protection or whether such protection could be extended to AI generated-works that are not created by humans. In the latter case, can AI-generated works be thought of as original. If AI-generated works are thought of as original and are extended copyright protection, this essay will address whether such protection also could be extended to sound recordings, broadcasts and performances. In the third group, this essay will address the ownership of such works and issues surrounding sui generis system protecting original AI-generated literary and artistic works.
In the conclusion, this essay will provide summary of the findings of this essay.
Artificial Intelligence (AI) comprises three elements. They are the software, algorithms and data. In order to protect the intellectual property associated with AI, the legal means may include copyright, patents, trade secrets and the sui generis database right. For protection, there must be creator’s choice that demonstrates a personal intellectual effort. This indicates that the copyright protection cannot be extended to interfaces and functionalities. Similarly, copyright protection is not extended to algorithms, which are treated as non-protectable as they are capable of free evolution, as provided under EU Directive 2009/24/EC. If they are integrated in the software, they become protectable. In terms of databases, if they are original intellectual creation, they can avail copyright protection. EU has also created sui generis rights. In case the database is not an original creation, this right protects the efforts invested while building the database. Such investment must be substantial financial, human and material investment that is aimed at getting, verifying or presenting the database’s content.
In this light, this report will address the issues raised by WIPO in regard to copyright protection to AI-generated works. It will address whether copyright protection could be extended to such works and the potential associated implications that would arise.
The UK and the EU do not have any legal provisions that provide copyright protection to artefacts generated by the autonomous intelligent agents in complete absence of human intervention. This statement indicates the requirement of originality.
It is only the database or own intellectual creation, which is protected. Directive 96/9 precludes any national legislation that grant database copyright protection subject to condition, which are different from conditions under Article 3(1). This case provides for originality. Article 3 entitles the author the protection of databases, which he personally created. Article 4 provides that such as author could be a human person or persons who created the base or subject to state’s legislation a legal entity designed by law as the right holder. Article 7 provides for sui generis right to the maker of a database upon which the maker has made a substantial investment.
The term ‘investment’ refers to use of resources for gaining existing independent materials collection of such materials for construction of a database. Resources that are used for creating materials that make up the database cannot avail protection. The terms ‘substantial investment’ refers to significant investment of human and economic resources in making and maintaining database of addresses required for the database.
Protection copyright under the EU Software Directive cannot be made available to the software programming, functionality, language or interfaces. Originality requirement extends the protection from photographs and computer programmes to other kinds of works. Such requirement is extended to software, photographic and databases works. For a work to be protected, it should be an intellectual creation by the author himself.
EU law emphasis the sole criteria of originality. The work should be original and not copied from somebody or somewhere where the author must have made subjective choices while creating the work, which shows an investment of his personal touch to the work. Thus, there is a need for the author to have created the work himself and to have made certain creative choices. Thus, if the work was created just so as to create a technical effect, such work dictated solely by its technical function cannot avail copyright protection. In such case there is no satisfaction of the requirement of originality. No different methods of implementing an idea were applied and hence there is no differentiation between an idea and its expression.
The UK has been following a low threshold to extend copyright protection to work. Its law protect any work that was not copied. This principle is extended to protection of machine creation subject to the condition that such creation was not copied. The Copyright, Designs and Patent Act 1988 (CDPA 1988) makes provision for ownership of such machine creation, which does not have any human creative intervention. Therefore, any entity that has financially invested in the computer and the programmes that produced the work is treated as the right holder. The author is that person who made the arrangements needed to create the work undertaken, which can be a work that is related to literary, dramatic, musical or artistic composition. This provision has been applied only with autonomously produced satellite photography where there is no human appointed. It is only the UK and Ireland within the EU that have this provision.
The treatment of computer-generated works under CPPA 1988 indicates the absence of involvement of human author. Authorship is given to a person who arranges the creation of the work undertaken. This provision may be debated as a legal solution against the dilemma of ascertaining the author or authorship. It treats the computer as just a tool. This also indicates that person treated as author under the Act is not the true author. This reason of treating the person as author may therefore lie in the situation where if a computer-generated work is independently produced by an AI system with no further intervention from the original programmer, it would throw a work that would not find an owner of a patent or copyright.
The UK has implemented the Directive 96/9/EC on the legal protection of databases through the Copyright and Rights in Databases Regulations 1997. It created the ‘database right’. Such protection applies to expression in any form of a computer program. Thus, it does not protect the ideas and principles that underlie element of a computer program. Any model developed using algorithm, programming or logic may not be treated as literary copyright for computer programs. Idea, programming, and logic are not excluded from copyright protection if they are solely not abstract ideas. They must have specific, detailed ideas. It is only those original computer programmes which are also author's intellectual creation. In UK context, computer generated works are protected under the CDPA 1988. It does not provide for the requirement of originality. This has potential of creating a conflict between member states as the threshold of originality is not uniformly applied. Originality is required by the CDPA 1988, S1(1)(a). However, UK has adopted the requirement of personal touch rather than the labour and effort requirement. Originality requirement is more of a qualitative test. The sui generis right act as the tool to bridge this gap.
Considering the requirement of originality and involvement of a human personal touch under EU law and the requirement of necessary arrangements under UK law, AI generated-works can only avail protection, if they meet the criteria mentioned here.
The EU and UK covers both the situation where there is human involvement and the lack of it in producing the works. EU law covers the former situation and the UK law covers the latter. In case of the former, protection is available for original work involving human efforts, where the author himself created the work making subjective choices and investment of personal touch. As per the Directive 96/9, in regard to databases not of original creation, as per Article 7, sui generis right grants protection to the database. Thus, copyright cannot be granted to original AI-generated works unless there is a human creator. If work is generated by AI itself, this means there is no human investment of personal touch and subjective choices. If such works could be considered original, this would lead to a lack of owner of the work. The concerned issue would, however, be that whether an AI which does not need any human personal touch and subjective choices would be able to create an original works that is sufficient for copyright protection. It would remain interfaces and functionalities, algorithms, or ideas that cannot be protectable as they would freely evolve. They cannot stand alone. They become protectable when they are integrated in software.
In case of the second situation where there is lack of human involvement, WIPO has raised relevant challenges here. Its main issue is whether content autonomously created by an AI should enjoy copyright protection. WIPO raises the challenge of determination of origin of creative work. The challenge lies in differentiating machine creation and human creation. WIPO opines that works made by machine could be deemed free of copyright. For copyright, the work must be created by a human author. Machine generate works could be freely used and or reused by everyone. This would be detrimental to the companies that are selling the works. The WIPO Copyright Treaty (WCT) under the Berne Convention deals with protection of works and rights of their authors in digital environment. It focuses on protection of two subject matters. The first is computer programs, in whatever mode or form of their expression (Article 4). The second is database, which represents compilations of data or other material in any form, where the contents are selected or arrangement in a manner that could constitute intellectual creations (Article 5). A database must be a creation. Authors are granted economic rights, including right of distribution (Article 6) and of rental (Article 7), and broader right of communication to the public (Article 8).
The main issue being currently faced by WIPO is whether content autonomously created by an AI should enjoy copyright protection. WIPO raises the challenge of determination of the creative work’s origin. The difficulty lies in differentiating machine creation and human creation. WIPO opines that works made by machine could be deemed free of copyright. For copyright, human authorship is required. As machine generated works can be freely used by everyone, its detrimental to the companies that are selling the works. In this regard, it must be noted that the UK extended the protection to such machine creation. It needs the originality requirement and its authorship is granted to the person, who made the arrangements necessary to produce the work, as per CDPA 1988. This regime therefore covers the situation where original AI-generated work could lead to a situation with no further human intervention. This is a database right where original creation is not available. In case, copyright is attributed to AI-generated works, such works could be treated as original in case they are not abstract ideas but specific, detailed ideas. The copyright will thus be vested in the person who made the arrangements as per CDPA 1988. This addresses the issue of extending legal personality to an AI application, where creates autonomously original works.
As per the CDPA 1988, s90, copyright is transferable through a written assignment, which would represent a sale or transfer of the copyright. Such assignment is limited to “one or more, but not of the things” the owner has exclusive right to do; or to “part, but not the whole, of the period for which the copyright is to subsist”. The owner has moral rights over the copyright, which he can keep or waive. Such rights include right of identification as author, right to object to the manner in which work is presented and to changes made to the work. Further, section 77 provides that owner has the right to be identified as author and according to Section 78, such right has to be asserted. In case he does not assert, there is no infringement. Given the law, an AI application without its human creator cannot exercise transfer rights or the moral rights and cannot be capable of identifying itself the author. Thus, there cannot be any question or consideration to accord a legal personality to an AI application.
The implementation of AI smart systems, involving autonomous agents requires significant direction from programmers and stringent set of rules. As such, all rights, responsibilities or liabilities arising from the agents rest on the creator. This means copyright law excludes literate robots which can conduct reading and carry out copyrighted works through automated processes. This also means that only humans are liable for infringement and not computers. There is a differentiation between human reading and robotic reading. The former is governed by infringement and the latter is exempted from infringement. As a result, the requirement of originality arises to avail copyright protection. If, however, human’s personality could be removed, will the existing law suffice? This question could only be addressed when human involvement could be removed in entirety, which cannot be possible without the subjective choices and investment of humans.
Sound recording, broadcasts and performances are works created by humans. They have a human involvement. According to Section 9 of CDPA 1988, the person who creates the work is the author. Such person is the producer in case a sound recording; in the case of a broadcast, the person making the broadcast or, in the case of “a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast”. For dramatic, musical or artistic work, the author is that person who made the arrangements needed to create the work undertaken. Reading Section 9(2) and s9(3) together, there are eight categories of works. They are authorial works and entrepreneurial works like sound recordings and broadcasts, that are part of this. The last category is films, a hybrid of two categories above. The first category needs the originality requirement. Section 9 treats the creator of the work as the author. For entrepreneurial works, the author is the producer, publisher or the broadcaster, which gives authorship to legal person. Thus, for the first category and for films, a human author has the authorship of the works.
The primary question is whether AI could generate sound recording, broadcasts and performances on its own without the subjective choices, investment and originality of humans. The answer would be probably no. Any effect otherwise produced will just be a technical effect, dictated solely by its technical function. In such case there is no originality and no differentiation between an idea and its expression. Thus, they cannot avail copyright protection.
The Patents Act 1988, s11 provides that the author of a work is the first owner of the copyright. If the work is made by an employee, then the employer is the first owner. This represents the “work for hire” doctrine where any work created by the employee during the time of employment belongs to the employer. Thus, in case there is an employee-employer relationship between the person who makes the sound recording, broadcasts and performances, the work for hire doctrine will apply. However, in case there is more than one author, who have created a single work and their contribution cannot be distinguished, they are joint owners. This legal remedy does not provide solution to distinguishing the respective works of joint authors. It does leave a potential issue of determining joint authorship or ownership in context to AI generated copyright works.
The EU and UK law have substantively provided for protecting rights over database by the principle of sui generis. Directive 96/9, Article 7, CPDA 1988 and Copyright and Rights in Databases Regulations 1997 provide for this protection when there is original creation and maker has substantial investment, substantive choices or arrangement necessary to produce the work. Reading these laws along with the contractual relationship between the parties involved in creating the work, ownership lies with the person who created the work or made required investment to make the works.
This essay found that the requirement of originality and substantial investment are sufficient criteria to define copyright protection and ownership of AI generated works. Directive 96/9 provides for original creation by the author with exercise of subjective and personal choices. As such, the protection could not be extended to any interfaces and functionalities or ideas and algorithm that do not have such elements.
The EU and UK copyright protection regimes also provide sui generis rights to protect the substantial investment while building a database. As such, where AI generated works are without any human personal touch, such protection is not available. The CDPA 1988 protects machine creation, which is original and it provides for authorship to protect the interest of the person that has made ‘arrangements’ needed to create the work. Given the legal position, copyright protection cannot be granted to AI-generated works that do not satisfy the mentioned elements. Such works need a human creator as they cannot stand on their own.
Concerns raised by WIPO on determining origin of a creative work may find answer in WTC, which provides for the requirements of expression, creation and protection in the form of economic rights. The UK requirement of originality and authorship as provided in CDPA 1988 holds similar responses. CDPA 1988 also provides for disposal of copyright through transfer by assignment. This is another reason, along with the operation of rights, responsibilities or liabilities, of how AI application cannot be protected without its human creator. Ownership or control over the works is subject to the determining legislation and to the existing professional contractual relationship between the parties involved in the creation of the works.
The EU and UK law have collectively provided for sufficient coverage of any existing or potential issues regarding AI generated work. The debate on determining copyright protection to such work may seem a desperate attempt to create artificial issues. AI cannot stand on its own in terms of ownership, its transferability, or liability in case of infringement. Human personal touch cannot be taken away. AI could not have occupied its functioning position without constant human evolution, management and monitoring. The process built, ideas expressed, selective choice made and substantial investment made deliver to the maker or author the protection, ownership or control.
The Copyright, Designs and Patent Act 1988
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