Who’s the Owner?
Artificial Intelligence and the Law of Copyright Jessica Zhang
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here has been an increased global awareness that Artificial Intelligence (‘AI’) are becoming more sophisticated and can now create works independent of human input. In 2016, a group of museums and researchers in the Netherlands unveiled a portrait entitled ‘The Next Rembrandt’ which was generated by a computer that had analysed thousands of artworks. The artwork was created after 18 months of research and experimentation, utilising data collected from Rembrandt’s oeuvre essentially creating a piece that was faithful to his unique brush strokes. The AI’s creators maintain that the piece is not a duplication of an existing piece of Rembrandt, but rather it is a prediction of what the great artist would have painted based on the current data. Ultimately, what has been created constitutes a new piece of work. Yet, the question remains – who owns the copyright? Is it Rembrandt, the programmers, or perhaps the AI itself? Traditionally, copyright’s utilitarian purpose of encouraging authors to produce work for the benefit of society does not apply to AI who do not require incentivisation. But when AI reaches a level of complete autonomy copyright ownership should, at least, be credited to a distinctly separate entity from the human programmer. Ed.1 2020
Looking to the foundations of copyright, the current international legal view and those who are calling for copyright amendments, it becomes clear that at different points of automation, there are two distinct copyright owners. These owners correlate to the level of automation of the program: the programmer who created the AI software and the AI itself. Unfortunately, with the delay in Australia reforming copyright legislation to protect AI works, it is ultimately discouraging technological advancements as there is a lack of potential commercialisation. Present Australian Law Since the 2006 amendments to the Copyright Act 1968 (Cth), no major upheaval has occurred in relation to legislation over technological copyright. As such, it is unsurprising that the legislation has fallen behind the advancements in artificial intelligence. The Australian Government has also shown disinterest in reforming the copyright legislations, namely through their failure to discuss AI in the recent Australian Productivity Commission’s report and the Government’s March 2018 Department of Communications and Art paper. The present Australian legislation in the copyright arena requires there to be a ‘qualified person’ as the author of a work. Non-human authorship is clearly excluded in the statute and reaffirmed in the recent thebrief.muls.org | 21
