Part 2: Can Artificial Intelligence be an Author According to Copyright?1
The development of artificial intelligence ("AI") is poised to radically change myriad aspects of our daily lives. As AI-based technologies gain in capability, it is likely that they will play a greater role in the development of intellectual property ("IP"). Have we reached a stage in the evolution of AI where the "machines" could independently create original and/or patentable material? The answer appears to be yes. In April 2016, The Next Rembrandt project unveiled a painting created by an AI algorithm that mimics the subject matter and style of the famous artist almost indistinguishably. How will current IP regimes recognize the fruits of these inventive and creative processes? Should they be entitled to the same protection as works of human origin? There is no concern with the use of AI as tools, and concomitant with the advancement of AI technology has been its increasing role in the creative process. It is interesting to consider at what point a computer crosses the line from mere tool to inventor or author.
Even if computer-generated works were to be granted IP protection, it is unclear how ownership of the IP rights subsisting therein would be resolved, given that computers currently lack the legal capacity to own property. Consider that another type of non-human entity, namely corporations, already enjoys legal personality, so the grant of similar rights to computers would not be without precedent.
In part one, we considered whether AI based technology could be considered an inventor under U.S. and Canadian patent laws. In this installment, we will consider whether AI based technology could be considered an "author" of a copyrighted work under Canadian and U.S. law.
Can AI based technology be an author?
U.S. copyright law provides that copyright in a protected work vests in the "author", without defining this term. On its face, then, and unlike U.S. patent law, there appears to be no requirement that an author be an individual. However, the Compendium of U.S. Copyright Office Practices (the "Compendium") states that the U.S. Copyright Office (1) "will register an original work of authorship, provided that the work was created by a human being" (§ 306), (2) "will not register works produced by nature, animals, or plants" (§ 313.2), and (3) "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" (§ 313.2). The Compendium elaborates on these rules with reference to case law principles, which echo the mental act of conception required to patent an invention:
- 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.
The Compendium was published with an updated human authorship requirement in 2014 in response to the so-called "monkey selfie", whereby a photographer, David Slater, asserted copyright in self-photographs of a monkey taken with his camera. The organization People for the Ethical Treatment of Animals ("PETA") launched a copyright infringement action against Slater on behalf of the monkey. The lawsuit was dismissed by the U.S. district court on the basis that the monkey was not an "author" under U.S. copyright law. The court of appeals affirmed the district court's decision.
Taken together, the restrictions on non-human authors imposed by the Compendium and the monkey selfie decision make it unlikely that works of authorship by non-humans would be eligible for copyright protection in the U.S. As is the case with patents, however, there is little to stop a human from claiming authorship of a work that was created by a non-human, particularly when such a work lacks the hallmarks of non-human origin.
Despite the fact that U.S. copyright law does not embrace non-human authors, it appears that a computer-generated work of authorship could be eligible for copyright protection as a work made for hire. In this regard, U.S. law provides that "the employer or other person for whom the work was prepared is considered the author". Such an arrangement would appear to only be available, however, if the exception to copyright protection for machine-generated works in the Compendium may be overcome by "creative input or intervention" from a human.
Limitations on the identity of authors under Canadian copyright law are similarly restrictive of non-humans, but are stated less explicitly. The Copyright Act provides that "copyright shall subsist in Canada...in every original...work if...the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a [a Berne Convention country, a Universal Copyright Convention country or a World Trade Organization member]". Computers are not citizens, subjects, or persons, so any works attributable to non-human entities would be unlikely to secure copyright protection in Canada, subject to any future grant of such status to computers.
If a computer-generated work were granted copyright protection, who would own it? The Copyright Act confers ownership of copyright on the author. As noted previously, it is unclear whether a computer has the legal capacity to own property. Alternatively, like the U.S., Canadian copyright law confers ownership of works made in the course of employment to the employer. Importantly, however, this concept is narrower in Canada because it only applies in an employment context. Given that computers currently lack the legal capacity to enter contracts, it is unclear whether a computer could be considered an employee. As a result, the ownership of copyright in computer-generated works remains uncertain under Canadian law.
Interestingly, neither U.S. nor Canadian copyright statutes define "authors" as individuals or persons, unlike inventors. Rather, they restrict protection for works of authorship to humans, implicitly accepting that a work of authorship might be by a non-human author.
Given the ever changing landscape of AI based technology and legal developments, those involved in AI would be well advised to seek guidance on how to best leverage technological advancement to improve the efficiency and efficacy of their creative processes, while navigating the law's position on inventions by non-humans so as to maintain their IP entitlements.
 An extended version of this and last month's bulletins will be published in the August 2018 issue of DRI's For The Defense.
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