Canada: ARS Ex Machina: Artificial Intelligence, The Artist

Last Updated: August 15 2018
Article by Andrée-Anne Perras-Fortin

Similarly to human beings, machines are now capable of creating.

They can write poetry, compose symphonies and even paint canvasses. They can also take photographs without any human assistance and perform musical pieces with flexibility and expression.

On the technical front, such works and performances are successful to the point of confusing numerous aficionados, who are unable to tell the difference between a work created by humans and something generated by their artificial counterparts. However, with regards to artistic merit, the quality of the artificially-generated work is often criticized.

For legal experts, the question arises as to whether these works meet all of the criteria for recognition of copyright.

The matter of copyright in Canada

Copyright law is the exclusive right to produce, reproduce, sell, licence, publish or perform a work or a major part thereof, whether it be literary, artistic, dramatic or musical 1.

In Canadian law, to be subject to copyright law, a work must be qualified as being an original creation; it must be the product of an author's exercise of skill and judgement 2. Even though it is difficult to confirm whether a computer can demonstrate skill and judgement, the definition proposed by the Supreme Court clarifies the two aptitudes that well describe the task performed by the computer when it creates works of art. Incidentally, creative nature is never considered as part of the concept of originality: a work needs to be neither novel nor unique.

Process of Artistic Creation of an Intelligent System

Any creation made by an artificial intelligence system draws its origin from one or more algorithms, that is to say, a series of mathematical operations is performed in order to obtain a result. Such work may be qualified as being new, provided that it does not reproduce an existing work. However, it often puts forth a mechanical nature that hinders its assimilation into being considered a real work of art.

Works generated by a computer in an autonomous manner are usually less eclectic than those generated by their human counterparts 3. A system can, for instance, after having been exposed to a vast quantity of Mozart's symphonies and having acquired the necessary musical theory, generate musical works similar to those of Mozart. Even if they may be criticized from an artistic innovation standpoint, such works meet the originality criteria in the legal sense since they appeal to a certain acquired aptitude (talent) and to evaluation of various possible options (judgment). Composing a poem in the style of Verlaine or a Beethoven-like symphony may ultimately lead, according to these criteria, to the recognition of a copyright.

The Performer Robot

The Copyright Act 4 also provides protection on the performers' rights in their performance of a given work 5. For a number of years now, computer programs have been able to "play" musical pieces autonomously. Recently, the quality of the performances of these programs has improved considerably and they demonstrate a subtlety and flexibility that was previously lacking. For example, the Swiss firm ABB developed YuMi, the robot orchestra conductor capable of conducting an orchestra of human musicians and following the vocalises of a solo tenor 6. Closer to us, the interactive virtual singer Maya Kodes was created by Neweb.tv, a Montréal-based firm. On stage, Maya sings and interacts with a group of back-up musicians and dancers 7.

This presents a plethora of advantages for film producers, impresarios, video game creators or advertisers who, thanks to such technological innovations, may henceforth generate original scores after having selected certain parameters, such as genre, ambience and duration, without having to pay for the licence to the rights held by various copyright holders to this music such as the composer, the creator and the performer.

Who holds the copyrights?

Elsewhere in the world

The U.S. Copyright Office has issued a specific set of regulations requiring that copyright holders be human beings 8. Works produced by a machine or another mechanical process that operates in a random or automatic manner are not, according to these regulations, eligible to be covered by copyright without there being creative involvement from a human being 9. Thus, it appears that these provisions give rise to a grey zone, since the law has not been adjusted accordingly.

Some jurisdictions, such as Australia 10, have established that copyright law is closely related to a human being. Others have created a legal fiction whereby the creator of the computer program is considered as being the copyright holder. This is true in the United Kingdom, Ireland and New Zealand 11.

The latter solution is subject of criticism whereby the proposed legal fiction makes light of the legal complexities related to creating a computer program. In fact, the distance between the author of the program and the work ultimately created may prove significant 12. It is possible that an artificial intelligence program creates something that is completely unexpected and undesired by the person who developed the program 13. The humans behind the artificial intelligence system are not themselves the authors of the underlying message of the literary work or the melody resulting from the music composed.

In Canada

In the United States, an author proposes that the work produced by a machine be considered as a work produced by an employee hired to create or perform works that fall within the scope of the United States Copyright Act 14. The concept of the work made for hire also exists in the Copyright Act in Canada, with certain technical nuances 15. According to this idea, the programmer or person who orders the work of the programmer he or she employs becomes the holder of the economic rights tied to the work, that is to say, the rights related to marketing the work.

This solution evacuates the notion of moral rights, that is, the right, for the author, to preserve the integrity of his or her work as well as the right to invoke, even under a pseudonym, creation of the work or even the right to remain anonymous 16. Since these rights cannot be assigned, it is difficult to foresee that the solution proposed by the purported author be viable under Canadian law.

In conclusion, the introduction of a new legal regime adapted to artistic creations produced by artificial intelligence systems is perceived as being necessary by many with respect to the works and the copyrights therein. For the time being, since the matter has yet to go before the courts, the foreseeable solutions are divided into two camps. On the one hand, we can recognize the copyright of the person who created the artificial intelligence that produced the work. On the other hand, if we do not succeed in binding the copyright to neither the programmer nor the machine, there is a risk that the work will fall into the public domain and thereby lose its economic value. One thing is certain: the desired legal regime must consider the rights of programmers behind the system with respect to the work ultimately produced and the level of control that such individuals may have over the content subsequently produced.

Footnotes

  1. The Copyright Act, R.S.C. 1985, c. C-42, articles 3, 15, 18
  2. The Supreme Court defines talent as "the use of one's knowledge, developed aptitude or practised ability in producing the work." It describes judgment as "one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work". CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13
  3. Bridy, A. (2012) Coding creativity: copyright of the artificially intelligent author. Stan. Tech. L. Rev., 1.
  4. RSC 1985, c C-42
  5. Id., art. 15.
  6. YuMi the robot conducts Verdi with Italian Orchestra, Reuters, September 13, 2017, https://www.reuters.com/article/us-italy-concert-robot/yumi-the-robot-conducts-verdi-with-italian-orchestra-idUSKCN1BO0V2.
  7. Kirstin Falcao, Montreal developers create 1st interactive holographic pop star, CBC News, November 2, 2016, http://www.cbc.ca/news/canada/montreal/maya-kodes-virtual-singer-1.3833750.
  8. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices306 (3d ed. 2017).
  9. Id., 313.2
  10. Acohs Pty Ltd v Ucorp Pty Ltd (2012) FCAFC 16.
  11. Copyright, Designs and Patents Act, 1988 c. 48 9(3) (.U.K.); Copyright Act 1994, 5 (N.Z.); Copyright and Related Rights Act, 2000, Part I, 2 (Act. No. 28/2000).
  12. Supra, note 3.
  13. Wagner, J. (2017). Rise of the Artificial Intelligence Author, The Advocate, 75, 527.
  14. Supra, note 3.
  15. Article 13(3) of the Copyright Act establishes this specific legal regime and distinguishes between an employment contract and a contract related to a journalistic contribution.
  16. Supra, note 4, art. 14.1(1).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions