Who’s the Owner? Artifcial Intelligence and

Who’s the Owner? Artifcial Intelligence and the Law of Copyright

Jessica Zhang

There has been an increased global awareness that Artifcial 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 beneft 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.

Looking to the foundations of copyright, the current international legal view and those who are calling for copyright amendments, it becomes clear that at diferent 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 artifcial 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 ‘qualifed person’ as the author of a work. Non-human authorship is clearly excluded in the statute and reafrmed in the recent

Yet, the question remains – who owns the copyright? Is it Rembrandt, the programmers, or perhaps the AI itself?”

Federal Court of Australia case, Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16. In this case, both the creators of the program and the individuals inputting data into the program were not provided copyright protection. This current system is unsatisfactory as it leaves works created by non-human authors such as AI unprotected. However, as academic Timothy Butler points out, prescribing a fctional human author to works that will perhaps have gradually less involvement with human input is a stopgap measure.

The Programmer’s ownership Originality is a key requirement to obtain protection under copyright laws in most common law countries including Australia. Although AI purports to produce original work, copyright should remain with the programmer when human interaction is still necessary for the creation of works. This will continue to provide incentive to the technology industry to innovate and create AI programs that beneft all markets.

Certain AIs still require human characteristics to work such as judgement, selection, ingenuity, labour, experience and expertise in coding the original program and the data set in which the work is drawn from. These features that cannot be copied into less advanced AI systems are considered as the necessary requirements to meet the originality threshold in Australia. In such circumstances, the copyright should remain with the programmer or end-user as they will have a commercial interest in exploiting the work and not the AI (at least not yet).

To cater to these commercial interests, Australian legislation should perhaps look to the UK system where copyright goes to the person who is responsible for initiating the development of something new. Under UK law, where a literary (including software), dramatic, musical or artistic work is computer-generated, the author is the person who made the arrangements necessary for the creation of the work. This is usually the software engineer who coded the program. This kind of provision allows for the program to be used without fear that the produced work will become unprotected as the eforts such as coding and inputting data collection are recognised. Additionally, if the program is sold and another individual produces work through the AI program but inputs separate data, their work will retain a separate copyright ownership.

AI’s ownership For the majority of humans, it is frightening to think that technology has advanced to a stage where AI can ‘think on their own’. However, the law nonetheless needs to reform to cater to AI works. These original fears of a robotic revolution may have resulted in the stagnation of recognising AI as the owners of copyright. In circumstances where AI has developed ‘machine learning’ - having the ability to gather individual experiences and make a fnal decision independent of the will of the programmers - it should be able to own the copyright rather than the programmer.

Like Australia, US Courts require works to be attributed to a human author, meaning that works solely created by AIs are not being protected from unauthorised commercial exploitation. This is becoming problematic where AI is being developed to perform human-like creative functions such as the ‘The Next Rembrandt’ discussed above.

A potential way forward would be implementing specifc legislative provisions for AI-derived works. A section of the legislation where amendments may be appropriate relate to the term ‘copyright’. AI programs can be creative long past the life of their original programmer, so it would be appropriate to ensure the copyright term to start from the date of publication.

Conclusion Copyright’s intention is to incentivise creators to contribute meaningfully to society and allow them to control their creations. However, when AI is creating independently, that control and ownership should belong to the AI itself. It is important for Australian legislators to rethink copyright ownership beyond the conventional threshold of ‘human intellectual efort’, as technology has surpassed this. Instead, technology has moved into unchartered territory where the law will need to guide and protect those who are paving the way in the feld of AI development.

“It is important for Australian legislators to rethink copyright ownership beyond the conventional threshold of ‘human intellectual efort’, as technology has surpassed this.