Artificial Intelligence ("AI"), which is defined as inorganic systems that mimic human brain, think, make decisions or even exercise self-improvement, creates a complex relationship with intellectual property law ("IPL").
Coming from this definition, when we start evaluating this subject, following questions arise;
- Can this inorganic system which mimics human intelligence, create a product in the field of IPL, like humans do?
- Is the AI itself an IP product?
- If AI creates a product, what will be its legal status/definition?
- If AI develops an IP product, who will be the rights holder of such product?
- If a user of an AI develops a product, who will be the rights holder of such product?
- Who will be held liable if an AI plagiarizes someone else's work while creating a product?
Just by asking these questions, it is possible to foresee that AI will bring crucial problems with itself in the field of IPL.
COPYRIGHT AND AI
Is AI under copyright protection?
The question that whether AI has a legal personality has been discussed for a long time. However, when considering the nature of AI in terms of copyright law, its components need to be examined first. When we think of the components of AI, we see that it consists of two elements; intelligent software and intelligent algorithms. In fact, each software uses algorithms in practice. However, since they have reached a very high capacity they are now called smart software and as algorithms have become too many and complex methods, they have become known as smart algorithms.
It is a separate discussion point whether an AI which is a component of a robot, can be the subject of a patent as a holistic system.
In accordance with Article 2 of the Law on Intellectual and Artistic Works, computer programs are protected as "works". Even if algorithms and intelligent algorithms alone are outside the scope of copyright protection, AI, as being smart software, will primarily be considered as a work under IP law.
Can AI create a work?
With the developments in AI, we started to talk about AI which is composing, drawing pictures, graphics, taking photographs, making translations, writing novels and poems. Thus, the main problem in terms of copyright law arises here. Should we accept the works produced by AI as "Works" under copyright law?
A product must have certain conditions to be considered as works resulting from creative activity under copyright law.
Copyright law protects all kinds of intellectual and artistic works bearing the characteristic of its author and which are deemed as a scientific and literary or musical work or work of fine arts or cinematographic work.1 If we interpret this provision with the decisions of the Supreme Court, we can state that two elements are necessary for a product to be considered as a work. i) Objective element: being eligible for economic evaluation, having a physical presence, ii) Subjective element: bearing the characteristics of its author. In addition to these, "aesthetic" qualities are required in order for fine art works to be considered as works.
Let's assume that there is a composition produced by AI. This composition can be played like any other composition, that is, it contains the objective element. However, can the subjective element be identified in such a case? How should the characteristics of the author be examined? Thus, the status of the author will play a crucial role herein.
In copyright law the "author" is in principle a natural person since it is the person who performs creative activity with its intelligence. Whereas, institutions, organizations and companies have the right to use the financial rights of the works created by natural persons that they employ. Although it is discussed in Europe whether to give AI status of a legal entity, such an approach is not commonly embraced.
In such a case, a question arises whether the AI or its developer should be taken into consideration in determining if a work is bearing the characteristics of its author. If a music piece composed by an AI is not a simple imitation and has originality; should it be considered as a work?
As the current Law on Intellectual and Artistic Works is based on the fact that the author should be a natural person and the originality of the work should belong to such natural person, according to the present regulation, a composition developed by AI cannot be accepted as a "work".
However, it should be emphasized that current copyright law will continue to be challenged by this issue. As long as AI continues to develop products of a special nature, existing copyright regulations will remain inadequate. In order to support such argument, many examples can be given; the world's first computer-generated musical was presented at the London Theater in 2016. Furthermore, music products developed by Annie, an AI who is able to constantly develop itself according to the feedbacks from the audience, can be purchased from amazon.com.2
According to the Copyright Designs and Patents Act of 1988 adopted in the United Kingdom ("UK"), when a computer performs music or creates an artwork, author of such work shall be the person who programmed the computer.
In the case of United States, the U.S. Copyright Office does not consider the products which do not belong to natural persons, as works.3
Even in the UK, problems that arise while determining the author of the work still exist.
For example, while creating a guitar composition, one can benefit from the templates present in a computer program and these will rapidly develop. Especially when you have created a portal for music composition and members are uploading their own templates to the portal, the other members shall be working on those templates and even changing them. Therefore it will be difficult to determine the "author" of such composition. There will be a special relationship between AI, its owner, the members of the portal who process/change the templates.
The same discussions shall be made with regards to creation of works by AI such as paintings, engravings, poems, novels and etc.
AI AND PATENT LAW
In continental Europe and Turkey software and algorithms are principally outside the scope of patent protection, as it is defined in the European Patent Convention.4 Whereas, AI consists essentially of algorithm and software; AI itself cannot be granted patent. The exception to this is that software may be the subject of a patent when it is combined with hardware (as a part of a system) and if it has novelty.
However, meeting the "novelty" criteria is becoming increasingly difficult, as finding a new patentable system is not so easy.
If an AI-robot, whether it is patentable or not, makes an invention, can such an invention be registered?5
In patent law, as in copyright law, the author/rights holder shall be a "natural person". If such a natural person is employed by a company, all rights of that invention shall belong to that company/legal entity.
Therefore, legal debates on who will be the author/rights holder of the inventions of AI shall continue for a longer time based on the developments in AI.
1. 5846 Sayılı Fikir ve Sanat Eserleri Kanunu, m. 1/B-a
2. Mustafa Zorluel, "Yapay Zeka ve Telif Hukuku," Türkiye Barolar Birliği Dergisi, 2019/242 s. 329; http://tbbdergisi.barobirlik.org.tr/m2019-142-1851
3. Zorluel, age., s.325
4. Sınai Mülkiyet Kanunu, m.82/2-b, c
5. Dr. Armağan Ebru Bozkurt Yüksel, "Yapay Zeka Buluşlarının Patentlenmesi"; http://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/20-06-2018yuksel.pdf
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