Khóa luận tốt nghiệp: Copyright protection for Ai-generated works

VIETNAM NATIONAL UNIVERSITY SCHOOL OF LAW

GRADUATION THESIS

COPYRIGHT PROTECTION FOR AI-GENERATED WORKS

Le Hong Linh - K63CLC - 18062015 Supervisor: Dr Nguyen Bich Thao

CIVIL LAW DEPARTMENT HANOI, 2022

PLEDGE

I declare that this thesis is my own research work, and I have not plagiarized, fabricated, used a false identity or committed any other offense against research ethics when writing

Hanoi, 18 May, 2022

Le Hong Linh

6 Structure of the Thesis 6

CHAPTER 1: OVERVIEW OF COPYRIGHT LAW 7

1.1 Overview 7

1.1.1 The history of Copyright law 7

1.1.2 The purpose of Copyright law 8

1.2 The conditions for copyright protection 12

2.1 Definition of Artificial Intelligence 20

2.2 The development history of AI 21

2.3 Concept of AI-generated works 24

2.3.1 AI works as a tool 25

2.3.2 AI as co-creator 26

2.3.3 AI-generated works with little or no human interference 26

2.3.4 The concept of AI-generated work 27

2.4 Challenges of AI-generated works to current copyright law 28

2.4.1 Originality 28

3.2.2 Encourage the technology development 36

3.2.3 Copyright law enhancement 37

Sub-conclusion 40

CHAPTER 4: RECOMMENDATIONS TO REVISE COPYRIGHT LAW IN ORDER TO ACCOMODATE AI-GENERATED WORKS 41

4.1 Revise the concept of originality 41

4.2 Revise the scope of rights to be granted to AI-generated works 43

4.2.1 Moral rights 43

4.2.2 Economic rights 44

4.3 Revise the concept of ownership 44

4.4 The term of protection 49

4.5 Examples of Applicability of the recommendations in practice - 49

Sub-conclusion 51

CONCLUDING REMARK 52

BIBLIOGRAPHY 53

ABBREVIATIONS

AI Artificial Intelligence

CDPA The Copyright, Designs and Patents Act 1988

CJEU The Court of Justice of the European Union

WIPO World Intellectual Property Organization

INTRODUCTION

1 Significance of the Research

Humanity always finds themselves eager to make everyday life become more convenient and efficient This motive encourages the technology to constantly advance Another milestone in humanity history is marked with the introduction of Artificial Intelligence

AI has started to appear in various sectors, fulfilling multiple roles, and proving its indefinite potential Novels and films like “I, Robot”, “Wall E” become a prophecy The one used to be some fictional creation now walks into life From medical, healthcare, hospitality, now, this technology is even involved in the creativity sector, something that once a human only capacity is now turned into a process that can be carried out by a machine

The development of AI, however, comes with critical challenges for the law Copyright law is an area that for so long has been reserved for humans as only humans are able to produce artworks Then, Artificial Intelligence came into the playground with various achievements with painting, music, poem and novel This reality leads to a debate on the possibility for the works from machines to be protected under Intellectual Property law

At the moment, the question of whether the AI-generated work should be protected and if yes then what legal instrument is sufficient is still in need for more discussion and research, no legislation can claim to have provided any protection at all Even the United Kingdoms, one of a few countries that have a regime to protect computer-generated works, is still facing a similar conundrum Because unlike computer’s works to which the protection can be granted to “the person by whom the arrangements necessary for the creation of the work are undertaken”,1 AI went further as there is nothing in the output work that can be contributed to the human at all

1 The Copyright, Designs and Patents Act 1988 (CDPA) section 9(3)

As aforementioned, copyright was designated for human’s creation, this resulted in a number of uncertainties and difficulties in granting protection for AI’s creation, especially in terms of authorship and the concept of originality

This thesis focuses on examining the concept of Artificial Intelligence and Copyright law to understand the obstacles in the current legal regime It is then arguing in favor of granting copyright protection for AI-generated works as I believe such protection will raise investments and achieve technical and cultural progress in terms of promoting creativity and supporting innovation

2 Literature Review

2.1 International research

The topic regarding protection for AI-generated works receives a great attention However, the opinion in this matter remains divided and no approach has been considered to be the optimal one

Many scholars opined that AI, as well as any non-human creature, should not now or ever be considered for copyright protection as this is a concept that was established for humans and should be reserved for humans only Since 1970, Stephen Breyer has suggested to exempt works by computer from copyright protection2 and he restated himself later in 2011.3He is against the argument that because the cost to produce work is higher than to copy it valid enough to grant protection Patrick Zurth (2020) argued that copyright or any kind of protection will increase the number of new monopolies, which will not act in favor of fostering creativity Moreover, another argument for this concern is the suppression of human creation as well as the inability of AI to be considered creative 4

Others suggest for a different type of law to be introduced in order to

2 Breyer, S (1970) The uneasy case for copyright: a study of copyright in books, photocopies, and computer

programs Harv L Rev., 84, 281 p 344

3 Breyer, S G (2010) A Look Back across Four Decades Geo Wash L Rev., 79, 1635

4 Zurth, P (2020) Artificial Creativity? A Case against Copyright Protection for AI-Generated Works UCLA

JL & Tech., 25, i

protect AI’s works so it will not be necessary to accommodate the present copyright regime

Earlier, copyright law had faced the similar question with generated works to which the suggestion can still be relevant in the current context like Samuelson (1985) advocated that users be given ownership of computer-generated works.5 Ramalho (2017) proposed a method that was compatible with both the public domain and "copyright" models.6 Another option presented by Bridy (2012) to use the concept of work-made-for-hire, reasoning that it will avoid the problem of “treating the programmer as the author-in-fact of works that are actually made by code”,7 and Pearlman (2018) has also taken into account the model of employment that can be applied to AI systems.8

computer-Another option is to grant copyright protection for AI-generated work Davies (2011) has taken into account that AI has a greater ability than a mere tool and it is also continuing to develop further.9 China shook the world and seems to be backing this notion with a recent decision that conferred copyright protection on an AI-written text.10

Nevertheless, the debate is still going on and no matter which option is prefered, it can always be altered as the AI technology is advancing rapidly

2.2 Vietnamese Research

This topic is relatively new in Vietnam as it is not an immediate problem for the legal framework at the moment but it has gradually received attention from the scholars

Bui Thi Hang Nga, Nguyen Thao Linh (2021) stated their opinion on granting legal personality for Artificial Intelligence as this will set the base to

5 Samuelson, P (1985) Allocating ownership rights in computer-generated works U pitt L rev., 47, 1185 p 2985

6 Ramalho, A (2017) Will Robots Rule the (Artistic) World? A Proposed Model for the Legal Status of Creations by Artificial Intelligence Systems Forthcoming in the Journal of Internet Law, 1-20

7 Bridy, A (2012) Coding creativity: copyright and the artificially intelligent author Stan Tech L Rev., 5

8 Pearlman, R (2018) RECOGNIZING ARTIFICIAL INTELLIGENCE (AI) AS AUTHORS AND INVENTORS UNDER U.S INTELLECTUAL PROPERTY LAW U.S Intellectual Property Law, 24(2), 1-7 9 Davies, C R (2011) An evolutionary step in intellectual property rights–Artificial intelligence and

intellectual property Computer Law & Security Review, 27(6), 601- 619 p 601, 617

10 Shenzhen Tencent Computer Sys Co v Shanghai Yingxun Tech Co., (People’s Ct of Nanshan (Dist Of Shenzhen) Dec 24, 2019) (China), translated in 51 INT’L REV INTELL PROP & COMPETITION L 652 (2020)

resolve legal relation that concern with AI, which includes intellectual property law relationship.11

Nguyen Thi Que Anh in a publication in 2022 pointed out the lack of regulations to govern AI in different aspects of private law: human interaction with artificial intelligence, issues of legal status of artificial intelligence, ethics and security, personal data, intellectual property rights, liability and inviolability to personal life.12 She also opined that there is a need to grant copyright protection for AI-generated works and suggested removing the requirement for human’s influence in the test for originality.13

Nguyen Luong Sy since 2018 has voiced his opinion on granting protection for AI-generated works He further made suggestions for Vietnamese legislation to make adaptation to accommodate computer’s creation with a preference over using employment relationships to allocate ownership to either the owner, the user or the developer.14

Vu Thi Hai Yen (2020) in her publication advocates for copyright protection over AI-generated works, reasoning that the protection will help affirm the potential of investing in AI for both investors and technology companies Another reason is the inability to identify AI’s creation out of human’s work She supports the idea introduced by CDPA of appointing “the person by whom the arrangements necessary for the creation of the work are undertaken” to be the author.15

This thesis will add on the table justifications to support protecting generated work under copyright law and provide suggestions for copyright law to adapt

13 Vietnam National University, Law School, “Hội Thảo Khoa Học: Hoàn thiện dự thảo luật sửa đổi, bổ sung một số điều của Luật Sở hữu trí tuệ” (Vietnam National University, Law School, May 12, 2022)

14 Nguyen Luong Sy (2018) Quyền tác giả đối với tác phẩm hình thành bởi trí tuệ nhân tạo Tạp chí Pháp luật và Thực tiễn số 01/2018

15 Vu Thi Hai Yen (2020) Bảo hộ quyền tác giả đối với tác phẩm được tạo ra bởi trí tuệ nhân tạo Tạp chí Nhà nước và Pháp luật số tháng 03/2020 p 45-54

3 Objective of the Research

Since protection for AI-generated works is currently a hot topic, and is in necessity for a conversation about the appropriateness of present solutions, as well as what copyright legislation needs to effectively regulate AI-generated works, the thesis attempts to contribute to the discussion from a theoretical viewpoint

The thesis will examine current copyright law as well as the condition of copyright protection to identify the current restraints that prevent works of AI to be protected

It will then provide arguments for the need and the benefit of copyright protection and will suggest revision of copyright law to overcome the aforesaid challenges

The current study's research technique was based on a legal dogmatic approach This method is based on the content being analyzed and systematized within the current legal framework

6 Structure of the Thesis

In addition to the Introduction, Conclusion and Bibliography, the thesis is structured as follows:

In chapter 1, the thesis will focus on understanding the concept of copyright law and also the rationale to justify copyright protection in order to identify the challenges that prevent AI’s works from being copyrightable and create a theoretical basis to evaluate the need to provide protection for works created by AI

The second chapter will dig into the dilemma of Artificial Intelligence, find out the ability of it as well as provide a distinction between AI-generated works and AI-assisted works This part will also provide how AI-generated works failed to fit in with the criteria of protection under the current regime of copyright

Chapter 3 provides reasons to support AI-generated works to be granted with copyright protection from different standpoints

Finally, chapter 4 will make suggestions for how copyright law can be applied to AI-generated works

CHAPTER 1

OVERVIEW OF COPYRIGHT LAW

1.1 Overview

1.1.1 The history of Copyright law

Copyright regime is believed to have first been established during the 15th, 16th century for literature works In this period, the publication was not easy as the books can only be copied by hand The protection was granted not for the author but the publisher for the exclusive right to publish and bring the work onto the market in a five to ten year period.16

From that point, copyright has gone a long way The introduction of modern regulations of copyright is due to the influence of different factors including the right for self expression, the technology development, and the market demand.17

The printing technology that came in around that time18 allowing mass reproduction is a leap for copyright With the invention of the printing press, published works could be copied in a manner that was less time-consuming and took less effort than copying by hand The chances to be exposed to works of art, mostly books, were made to be easier than ever

Another factor, and the main one, to shift the owner of copyright from the publisher to the author is the rise of individualism The result of this wave was a rising interest in self-expression and the requirement for it to be protected as it is attached personally.19

Finally, the public expressed an interest in being the owner of books

16 Spoor, m J., Verkade, m., & Visser, m (2005) Recht en Praktijk, Auteursrecht: Auteursrecht, naburige rechten en

databanken recht (Vol 42) Alphen aan den Rijn: Kluwer p 17 as cited in Hornman, F (2018) A robot’s right to

copyright (Doctoral dissertation, Master’s thesis, University of Tilburg http://arno uvt nl/show cgi)

17 Mezei, P (2020) From Leonardo to the next Rembrandt–The need for ai-pessimism in the age of algorithms Available at <http://publicatio.bibl.u-

during that time which created an appealing market.20 The high demand combined with the convenience in production required a stricter protection regime in order to guarantee the execution of the law

In 1710, England introduced the Statute of Anne, the first copyright act that granted protection for authors21, stopped publishers’ monopolies22 as well as made a debutant for the public domain doctrine.23

This act later influenced the United State24 first copyright act, which were introduced in 1793

It is historically evident that the technology has a strong effect on the evolution of copyright We have now gone through three “waves” of copyright law development which also correlated with technology advancement

The first one was the printing press, which was invented in Europe and contributed to the introduction of a new copyright protection regime The second wave arrived around the second half of the twentieth century with the advent of analogue reproduction technologies, which enabled a wider percentage of society to replicate protected works The third wave was brought about by digital technologies and the internet, which provide convenient, efficient, and low-cost access to and use of works, which require the copyright law to take action to prevent online copyright infringement.25

It can be seen that the majority of the challenges and changes to the copyright system have been brought about by technical advancement The rise of AI is forecasting the need for copyright law to adapt

1.1.2 The purpose of Copyright law

The very first purpose of copyright law was rather for the government

20 ibid

21 Downie, J.A (4 December 2008) "Periodicals, The Book Trade and The 'Bourgeois Public Sphere'" Media History 14 (3): 262 doi:10.1080/13688800802472188 S2CID 145512047

22Deazley, R (2004) On the origin of the right to copy: Charting the movement of copyright law in

eighteenth century Britain (1695-1775) Hart Publishing p.1

23 Patterson, L (2009) A Unified Theory of Copyright Hous L Rev., 46, 215

24 Alexander, Isabella (2010) Copyright Law and the Public Interest in the Nineteenth Century Hart Publishing p.17

25 Tamura, Y (2009) Rethinking copyright institution for the digital age Thomson Reuters p 66-68

to control over what can be published and what can not.26 For example, during the time before the Statute of Anne was enacted, England restricted copying through the Licensing of the Press Act 1662 which were enforced by the Stationers' Company This company monopolized the publishing market27 and enjoyed the privilege to censor literary works on behalf of the Crown.28 It was not until after the Statute of Anne came into force that Stationers' Company was stripped of its monopoly.29

The current copyright law regime is a far cry from what it used to be The purpose of copyright protection is now “to encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public”30, which balanced the between the right of the author to support creativity and the right of the public to enjoy these works

This approach comes from a certain rationale Understanding these justifications are critical in order to assess whether we can justify extending copyright protection to works made with or by new technology, posing an important point for the evolution of copyright

The two main underlying premises of copyright law are paradoxical In order to build a pool of knowledge and for people to access it, ideas should be available for all to use 31 However, free use of ideas led to discouragement for creators, authors, inventors, and enterprises to disseminate ideas into the public domain.32 A balance must be struck between these two dilemmas The modern

26 Spoor, m J., Verkade, m., & Visser, m (2005) Recht en Praktijk, Auteursrecht: Auteursrecht, naburige rechten en databanken recht (Vol 42) Alphen aan den Rijn: Kluwer p 18 as cited in Hornman, F (2018)

A robot’s right to copyright

27 Hauhart, Robert C (1983) "The Origin and Development of the British and American Patent and Copyright Laws" Whittier Law Review Whittier Law School 5 (1) p.546

28 Robinson, A.J.K (1991) "The Evolution of Copyright, 1476–1776" Cambrian Law Review University of Wales Press 22 (1) p.60

29 Patterson, L (2009) A Unified Theory of Copyright Hous L Rev., 46, p.244-256

30 Yahong Li, Professor, University of Hong Kong, (Hong Kong, 13 September 2017) as cited in Dee, C M A (2018) Examining copyright protection of AI-generated art Delphi, 1, 31

<https://delphi.lexxion.eu/data/article/13471/pdf/delphi_2018_01-012.pdf>

31 Sell, S (2004) Intellectual property and public policy in historical perspective: contestation and

settlement Loy LAL Rev., 38, 267

32 Bently, L., & Sherman, B (2014) Intellectual property law Oxford University Press, USA p 3

copyright regime is mainly influenced by four perspectives namely Utilitarianism; Labor Theory; Personality Theory; and Social Planning Theory.33

The authors are rewarded for their works by holding a certain kind of monopoly rights, while at the same time, in favor of public interest, the market is left with the decision of how much these works are worth As in Mazer v Stein,39 the Court stated that “The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in “Science and useful Arts” Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered”.40

33Fisher, W (2001) Theories of intellectual property: New essays in the legal and political theory of property new

essays in the legal and political theory of property Cambridge University Press, Cambridge p 5

34 Article I, section 8, clause 8 of the United States Constitution empowers Congress "to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."; Karl B Lutz, “Patents and Science: A Clarification of the Patent Clause of the U.S Constitution” (1949) 18 Geo Wash L Rev 50

35 Ransom, H H (1956) The first copyright statute: An essay on an act for the encouragement of learning, 1710 Austin: University of Texas Press p 1709; Deazley, R (2004) On the origin of the right to copy: Charting the

movement of copyright law in eighteenth century Britain (1695-1775) Hart Publishing p 31- 50

36 Fisher, W (2001) Theories of intellectual property: New essays in the legal and political theory of

property new essays in the legal and political theory of property Cambridge University Press,

Cambridge.; Edwin C Hettinger, “Justifying Intellectual Property” (1989) 18 Phil & Pub Aff 31 p 169

37 Article I, section 8, clause 8 of the United States Constitution empowers Congress "to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

38 Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue (1726) Treatise II, Section III, VIII “In comparing the moral Qualities of Actions, in order to regulate our Election among various Actions propos’d, or to find which of them has the greatest moral Excellency, we are led by our moral Sense of Virtue to judge thus; that in equal Degrees of Happiness, expected to proceed from the Action, the Virtue is in proportion to the Number of Persons to whom the Happiness shall extend… and in equal Numbers, the Virtue is as the Quantity of the Happiness, or natural Good; or that the Virtue is in a compound Ratio of the Quantity of Good, and Number of Enjoyers In the same manner, the moral Evil, or Vice, is as the Degree of Misery, and Number of Sufferers; so that, that Action is best, which procures the greatest Happiness for the greatest Numbers; and that, worst, which, in like manner, occasions Misery” as cited in Gaon, A H (2019) Artificially Intelligent Copyright: Rethinking Copyright Boundaries p 93 39 Mazer v Stein, 347 U.S 201 (1954)

40 Ibid p 219

- Labor Theory

Labor theory can be traced back to John Locke’s works in the eighteenth century.41 This approach posed an important mark on Continental European countries like France or Germany.42

To understand this theory, there are two ways of explaining.43 The first one reasoned that labor can only be attracted if there is some kind of indemnification.44 The second point of view interprets this as the hard work needs to be paid off.45

Labor theory places the reason for copyright protection heavily on the role of the creator As the author has put into the works his time and effort so he should be entitled to enjoy the fruit of his labor Also, since these works contribute to society, then the creator should receive benefits in return

- Personality Theory

The founding for this approach are works from Hegel and Kant.4647Personality theory views copyright law as a kind of boundary to protect “the child” of the author, to prevent others from acting without the author’s consent and from that safety net, encouraging people to express themselves

This viewpoint is more concerned with preserving the emotional tie between the artist and her creation, and aims for “the satisfaction of some fundamental human needs” than the social benefit Moral rights are primarily derived from personality theory and guarantees an author's rights to be credited for her work, to protect the integrity of the work, to deliberately publish a work, and to be paid when a work is resold

41 Leaffer, M A (2010) Understanding copyright law LexisNexis

42 Jaszi, P (1991) Toward a theory of copyright: the metamorphoses of authorship Duke lJ, 455.; Bracha, O

(2008) The ideology of authorship revisited: Authors, markets, and liberal values in early American

copyright Yale LJ, 118, 186

43Gordon, W J (2004) Render copyright unto Caesar: On taking incentives seriously U Chi L Rev., 71, 75.;Lipton, J (2004) Information property: rights and responsibilities Fla L Rev., 56, 135.; Damstedt, B G (2002) Limiting Locke: A natural law justification for the fair use doctrine Yale LJ, 112, 1179

44 Hughes, J (1988) The philosophy of intellectual property Geo LJ, 77, 287 p 296

45 Merges, R P (2006) Locke remixed;- UC Davis L Rev., 40, 1259 at 1265

46 Leaffer, M A (2010) Understanding copyright law LexisNexis

47 Robert R Williams, Hegel on the Proofs and Personhood of God: Studies in Hegel's Logic and Philosophy of Religion (Oxford: Oxford University Press, 2017); Kim Treiger-Bar-Am, “Kant on Copyright: Rights on Transformative Authorship” (2007) 25 Cardozo Arts & Ent LJ 1059 as cited in Gaon, A H (2019) Artificially Intelligent Copyright: Rethinking Copyright Boundaries

This theory is justified under two grounds: protect the personhood of authors by preventing their works from appropriation or modification and also create social and economic conditions in order to promote creativity.48

- Social Planning Theory

This is the least established among the four theories 4950 This theory is derived from works by philosophers such as Thomas Jefferson,51 Karl Marx,52James Harrington,53 and Morris Cohen.54

Placing the society at its base, the theory argued that property must be protected in order to “help foster the achievement of a just and attractive culture”55and intending to serve “a robust, participatory, and pluralist civil society”.56

This theory suggests looser copyright restrictions to maximize public interest.57

1.2 The conditions for copyright protection

Copyright protects the expression of ideas emerged in literary, dramatic, musical, or artistic works It requires eligible subject matter, originality, and fixation in a tangible medium

1.2.1 Type of works

Copyright aims to protect original expressions but not the idea behind it The law in many countries recognized the type of works that are protected under copyright law according to the Berne Convention for the Protection of Literary and Artistic Works, one of the most popular international documents on intellectual property rights In article 2.1, the Convention stated

48 Fisher, W (2001) Theories of intellectual property: New essays in the legal and political theory of property new

essays in the legal and political theory of property Cambridge University Press, Cambridge p 170

49 Wilkof, N (2014) Theories of intellectual property: Is it worth the effort? Journal of Intellectual Property

Law & Practice, 9(4), 257-257

50 Cruz, C E Intellectual Property and Innovation: In Search of a Sustainable Intellectual Property Strategy p 6 51 Thomas Jefferson, Notes on the State of Virginia (Norton, 1972)

52 Karl Marx, Economic and Philosophic Manuscripts of 1844 (International Publishers, 1964) 53 James Harrington, Oceana (Hyperion Press, 1979)

54 Morris R Cohen, “Property & Sovereignty” (1927) 13:1 Cornell Law Q 8

55 Fisher, W (2001) Theories of intellectual property: New essays in the legal and political theory of property new

essays in the legal and political theory of property Cambridge University Press, Cambridge p 4

56 Netanel, N (1998) Copyright and a democratic civil society Stanford University

57Zemer, L (2006) On the value of copyright theory Available at SSRN 1657855 p 66

“literary and artistic works” are to be protected which include “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatic or musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science”

1.2.3 The originality

Even though originality is an important aspect in order to determine copyright protection, no universal concept was ever agreed on.59 Each country adopted their own doctrine on the needed level of originality in a work

At the beginning, the requirement for originality is considerably low, as the “sweat of the brow”60 doctrine under the US law, the UK’s “skill, labour

58 Berne Convention Article 2, Section 2: “It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form”

59 Margoni, T (2018) Artificial Intelligence, Machine learning and EU copyright law: Who owns AI? <https://eprints.gla.ac.uk/175022/1/175022.pdf>

60 Emerson v Davies, 8 F Cas 615 (C.C.D Mass 1845) (No 4436)

or judgement” 61 of the author or the Canadian “exercise of skill and judgment”.62 These only concern originality to the level that the work was independently created and the author invested a certain amount of time, no creativity is needed

However, over time, many jurisdictions had changed their point of view on originality

In 1991, the Supreme Court of the United States denied the “sweat of

the brow” doctrine in Feist v Rural Rural Telephone Service Company, Inc

(Plaintiff) is a telephone cooperative providing telephone services The company was legally obliged to issue an annual telephone directory Feist Publications, Inc (Defendant) is a publishing company whose distributed compiling telephone directory covers a larger geographic area than Rural Despite the Plaintiff refusing to give a license to the Defendant for the phone numbers in its area, Feist copied 4,000 entries from Rural's directory without consent Rural then filed for copyright infringement

Applying the “Sweat of the brow” doctrine in this case, the trial court and appellate courts sided with Rural, reasoning that copyright provides protection for anyone who invested significant amounts of time and energy into their work

However, the Supreme Court held to the contrary Directory containing an sequential order list of the users, in conjunction with their towns and phone numbers is simply fact and not enough to fulfill the standard of copyright protection The Court decision set a new bar for the level of creativity needed in a work to be copyrightable

A common understanding now demands the work to have a minimal level of creativity.636465 This means the author’s personal imprint must be

61 University of London Press v University Tutorial [1916] 2 Ch 601

62 CCH Canadian Ltd v Law Society of Upper Canada, Supreme Court of Canada, 2004 SCC 13 63 UK Intellectual Property Office, “Artificial intelligence call for views: copyright and related rights” <https://www.gov.uk/government/consultations/artificial-intelligence-and-intellectual-property-call-for-

views/artificial-intelligence-call-for-views-copyright-and-related-rights>

64 UK Intellectual Property Office "Copyright Notice: digital images, photographs and the internet"

found in the protected works, which is demonstrated through the author’s free and creative choices.66

The human factor plays a crucial role in this concept of originality as it requires the personal imprint to be displayed The result is heavily affected and distinguished by a human author's manifestation of creativity, mental conceptions and characteristics

In Bleistein v Donaldson Lithographing Co., the judge found that “The

copy is the personal reaction of an individual upon nature Personality always contains something unique It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone That something he may copyright unless there is a restriction in the words of the act.”67

A concept usually use by European Directive is “author’s own intellectual creation”,68 the European Court of Justice then provides an explanation for this as “the author can stamp the work created with his “personal touch”.69

67 Bleistein v Donaldson Lithographing Co., 188 U.S 239, 250 (1903)

68 Directive 96/9, of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, art 3 ¶ 1, 1996 O.J (L 77) 20, 25 (EC) (“In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright No other criteria shall be applied to determine their eligibility for that protection.”); Directive 2006/116, of the European Parliament and of the Council of 12 December 2006 on the Term of Protection of Copyright and Certain Related Rights, art 6, 2006 O.J (L 372) 12, 14 (EC) (“Photographs which are original in the sense that they are the author’s own intellectual creation shall be protected No other criteria shall be applied to determine their eligibility for protection.”)

69Case C‑ 604/10, Football Dataco Ltd v Yahoo! UK Ltd., ECLI:EU:C:2012:115, ¶ 38 (Mar 1, 2012) (“[The] criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices and thus stamps his ‘personal touch’.”)

rights are understandably vital as they provide the creators the chance to determine what they will do with their works Without these rights and therefore the copyright protection of their works, most creators wouldn't feel the inducement to form as they would not gain anything from it

There are two types of rights under copyright: economic rights and moral rights

Economic rights allow the rights owner to receive financial reward from the use of their works by others by allowing or prohibiting certain uses in relation to a work or, in some cases, to receive remuneration for the use of their work These rights might include:70

- reproduction of the work in various forms, such as printed publications or sound recordings;

- translation of the work into other languages; - adaptation of the work

- distribution of copies of the work;

- broadcasting or other communication of the work to the public; - public performance of the work

Moral rights provide protection over the non-economic interests of the author such as71

- the right to claim authorship of a work (sometimes called the right of paternity or the right of attribution); and

- the right to object to any distortion or modification of a work, or other derogatory action in relation to a work, which would be prejudicial to the author's honor or reputation (sometimes called the right of integrity)

Moral rights are attached to the author’s persona and are deemed to remain so even after the author transfers all of her economic rights

The European Union72 and the United States73 have extended this duration to 70 years after the death of the author For a few countries, for example, Mexico,74 this can even go up to 100 years which make the protection under this legislation one of the lengthiest

1.3.3 Exceptions and limitations

While the copyright owner holds exclusive rights over the works, certain exemptions are still regulated in order to balance the private right and the public interest A few circumstances where using a work without the copyright owner’s permission cannot be considered as copyright infringement includes:75

- Quotations;

- Reproduction in libraries and archives;

- Special copies for use by visually-handicapped persons - Criticism, review and reporting current events

- Teaching

72 Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) Available at <https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32006L0116>

73 17 U.S Code § 302 - Duration of copyright Available at <https://www.law.cornell.edu/uscode/text/17/302> 74 "Ley Federal del Derecho de Autor" Available at

<https://web.archive.org/web/20140701182338/http://www.diputados.gob.mx/LeyesBiblio/pdf/122.pdf> 75 WIPO Managing Intellectual Property in the Book Publishing Industry A business-oriented information

booklet Available at <https://www.wipo.int/edocs/pubdocs/en/copyright/868/wipo_pub_868.pdf>

- Helping disabled people - Time-shifting

- Parody, caricature and pastiche

In light of the development of AI, a few countries are beginning to recognize a new exception for text and data mining.7677

76 The Copyright, Designs and Patents Act 1988 (CDPA) Section 29A: “An exception to copyright exists which allows researchers to make copies of any copyright material for the purpose of computational analysis if they already have the right to read the work (that is, they have “lawful access” to the work) This exception only permits the making of copies for the purpose of text and data mining for non-commercial research

"Researchers will still have to buy subscriptions to access material; this could be from many sources including academic publishers”

77 Japan Copyright Act Art 30.4 “It is permissible to exploit work, in any way and to the extent considered necessary, in any of the following cases or other cases…

(ii) exploitation for using the work in a text-and-data mining (meaning the extraction, comparison, classification, or other analysis of language, sound, or image data, or other elements of which a large number of works or a large volume of data is composed…)”

No matter how long it has been around, ever since it was first introduced to the world, copyright law has always been in conjunction with the development of technology It is only reasonable if the copyright regime is again challenged with the introduction of Artificial Intelligence

Chapter 1 has set the context It is necessary to understand the current copyright law in order to evaluate the possibility and the cost to provide AI-generated works with copyright protection which will be elaborate later

CHAPTER 2

AI-GENERATED WORKS AND ITS CHALLENGES TO CURRENT COPYRIGHT LAW

2.1 Definition of Artificial Intelligence

People have soon dreamt about human-like machines The very first idea of Artificial Intelligence can be traced back to ancient Greek as the philosopher Aristotle (384–322 BCE) described automation in his work, The Politics Later, around 1495, Leonardo Da Vinci sketched designs for a humanoid robot in the form of a medieval knight

Thinking machines, algorithms, artificial intelligence – tools that were first imagined by Ada Lovelace and Charles Babbage, and then put into reality by computer scientists like Claude Shannon and Alan Turing – came true

However, the term “Artificial Intelligence” was only coined in 1956 by John McCarthy at the very first academic conference about AI which was held at Dartmouth College in New Hampshire He defines it as “the science and engineering of making intelligent machines” There are also other names for the field that have been proposed, such as computational intelligence, synthetic intelligence or computational rationality

Until today, there is no universal definition of AI since it is not an easy task The European Parliament specified in its Recommendations on Civil Law Rules on Robotics: “There is a need to create a generally accepted definition of robot and AI that is flexible and is not hindering innovation”.78

According to Florian De Rouck, “AI systems will be designed to perform human-like cognitive tasks, steadily improving their performance by learning from experience or external data”.79

78 European Parliament Report with Recommendations on Civil Law Rules on Robotics, Recital C <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A8-2017-

0005+0+DOC+XML+V0//EN>

79 De Rouck, F (2019) Moral rights & AI environments: the unique bond between intelligent agents and

their creations Journal of Intellectual Property Law & Practice p 432-436

Pamela Samuelson viewed AI as “a specialty field within computer science that is aimed at producing computers that exhibit intelligent conduct”.80

Mauritz Kop argued that AI is “a non-human system that possesses cognitive functions and skills such as learning and reasoning A smart computer that can think and plan strategically A science that can assist humanity to find answers to the big questions/themes we face”.81

Amit Konar defined AI as the “simulation of human intelligence on a machine, so as to make the machine efficient to identify and use the right piece of ‘Knowledge’ at a given step of solving a problem”.82

Nils J Nilsson opined that “AI is that activity devoted to making machines intelligent, and intelligence is that quality that enables an entity to function appropriately and with foresight in its environment”.83

In light of this paper, Artificial Intelligence should be understood in the meaning of a machine rather than a field of computer science The definition from the European Commission might be best to describe the AI in terms of

having any lingering with copyright law: “systems that display intelligent

behavior by analyzing their environment and taking actions – with some degree of autonomy – to achieve specific goals”.84

2.2 The development history of AI

Despite being dreamed about for almost the entire human civilization, the lack of technology prevented any real work on AI to be done up until the nineteenth century

Around the 1830s, Charles Babbage, an infamous British engineer and mathematician began to develop the Analytical Engine which had the capacity

82 Amit, K (2018) Artificial intelligence and soft computing: behavioral and cognitive modeling of the

human brain CRC press

83 Nilsson, N J (2009) The quest for artificial intelligence Cambridge University Press

84 Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions on Artificial Intelligence for Europe, Brussels, 25.4.2018 COM(2018) 237 final

to interpret programming instructions via punch cards.85 The idea of this machine was purely to generate error-free tables of logarithms However, his colleague, Ada Lovelace, who is considered to be the first female software developer,86 stated that the machine can be capable of so much more She believed the machine had the capacity of “elaborate and scientific pieces of music”.87 However, she was also against the idea that a machine can create anything on its own, “The Analytical Engine has no pretensions to originate anything It can do whatever we know how to order it to perform”.88

On the other hand, Alan Turing, an English logician and mathematician with great contributions to computer science as well as AI development, supports the idea that an actual “intelligence” can be created.89 He proposed the idea of a “logical computing machine (LCM),” nowadays called a “Turing machine” which includes an infinite tape divided into cells and a tape drive The question is coded into 1’s and 0’s on one cell of the tape, the machine then “reads” the input and results in an answer for the input printed on the other cell of the tape Turing also proved that anything can be coded into, which also means that the machine is capable of solving any question, “It can be shown that a single special machine of that type can be made to do the work of all”.90

Arguing in favor of AI in an article in 1950, Alan Turing responded to Lovelace’s opinion and also other objections regarding the possibility of a machine that can think and also put out a test in order to settle the question of whether or not machine can be seen as intelligent which is now known as the “Turing test” Turing argued for the possibility of computer programs ascending to human intelligence Turing aspired to “test whether the artifact was indistinguishable from a person with regard to what he took to be

85 Newquist, H P (1994) The brain makers Sams Pub

86Phillips, A L (2011) Crowdsourcing gender equity: Ada Lovelace Day, and its companion website, aims

to raise the profile of women in science and technology American Scientist, 99(6), 463-465

87 Lovelace, Ada; Menabrea, Luigi (1842) "Sketch of the Analytical Engine invented by Charles Babbage

Esq" Scientific Memoirs Richard Taylor: 694

88 Nilsson, N J (2009) The quest for artificial intelligence Cambridge University Press p 64

89 Hodges, A (1997) Turing, a Natural Philosopher, Phoenix

90 Alan M Turing, “On Computable Numbers, with an Application to the Entscheidungsproblem,” Proceedings of the London Mathematical Society, Series 2, Vol 42, pp 230–265, 1936–1937

pertinent property, verbal behavior”.91 If the AI passes the test then it might be recognized as intelligent

After the above-mentioned conference of AI, Dartmouth Summer Research Project on Artificial Intelligence (DSRPAI) hosted by John McCarthy and Marvin Minsky, AI started its golden era.92

Early demos such as Newell and Simon's General Problem Solver and Joseph Weizenbaum's ELIZA showed promise in problem solving and spoken language interpretation, respectively, and ELIZA, while failing the Turing test, was a significant milestone in the field.93

Many of artificial intelligence's significant goals were accomplished throughout the 1990s and 2000s Gary Kasparov, the reigning world chess champion and grand master, was beaten by IBM's Deep Blue, a chess-playing computer program, in 1997 This widely publicized encounter marked the first time a reigning world chess champion was defeated by a computer, and it marked a significant milestone toward the development of artificially intelligent decision-making software Speech recognition software produced by Dragon Systems was installed on Windows in the same year This was yet another significant stride forward, but this time in the direction of spoken language interpretation There didn't appear to be any difficulty that machines couldn't solve This was yet another significant stride forward, but this time in the direction of spoken language interpretation There didn't appear to be any difficulty that machines couldn't solve Even human emotion was fair game, as Kismet, a robot designed by Cynthia Breazeal and capable of recognizing and displaying emotions, demonstrated

After a short “AI winter” in the 1980s,94 AI came back to the playground,

91 Alan M Turing, “Computing Machinery and Intelligence,” Mind, Vol LIX, No 236, pp 433–460, October 1950 Available at <http://www.abelard.org/turpap/turpap.htm>

92 Crevier, Daniel (1993) AI: The Tumultuous Search for Artificial Intelligence New York, NY: BasicBooks

p 49: “the conference is generally recognized as the official birthdate of the new science”

93 JWeizenbaum, J (1966) ELIZA—a computer program for the study of natural language communication between man and machine Communications of the ACM, 9(1), 36-45 Available at <https://dl.acm.org/doi/pdf/10.1145/365153.365168>

94 McCorduck, P., & Cfe, C (2004) Machines who think: A personal inquiry into the history and prospects

stronger than ever AI now can be used to demonstrate the 3D structure of a protein,95 predict the result of judicial decisions,96 or create art

2.3 Concept of AI-generated works

Art is traditionally created by humans who use their creativity and skills to produce it However, technology has fundamentally changed this process With the introduction of computer, people began using computer-aided creation tools to help supplement their own creativity97 and now Artificial Intelligence systems have taken on a more prominent role

An AI system usually consists of four key elements to explain the basic structure of Art-generating AI systems: Inputs, Learning Algorithms, Trained Algorithms, and Outputs Inputs refer to the information that serves as training data, in the context of art generated AI, it would be pre-existing works of art These are needed in order for the system to be familiarized with the artistic style, the pattern, etc Learning algorithms allows the AI to analyze countless works of art Afterwarth, the AI will eventually produce outputs which are similar to what it was taught.98

The use of AI in the creating process is getting more and more common, the interference of human factors can vary from being the main creator to only being limited involved in the process Humans now can use Artificial Intelligence in the way they find to be appropriate to form their expression Still, AI can go to the extent of creating art on its own, while it is not common, it has evidently succeeded and has unlimited potential for further development in the future as its ability “ultimately including the

of artificial intelligence CRC Press.; Norvig, Peter (2003), Artificial Intelligence: A Modern Approach

(2nd ed.), Upper Saddle River, New Jersey: Prentice Hall

95 Heath, Nick (11 December 2020) "What is AI? Everything you need to know about Artificial Intelligence" 96 Aletras, N.; Tsarapatsanis, D.; Poreotics-Pietro, D.; Lampos, V (2016) "Predicting judicial decisions of the European Court of Human Rights: a Natural Language Processing perspective" PeerJ Computer Science 2: e93

97 Cade Metz, ‘How A.I Is Creating Building Blocks to Reshape Music and Art’ New York Times (New York, 14 August 2017)

98 Fjeld, J., & Kortz, M (2021) A legal anatomy of AI-generated art: Part I

pattern recognition powers, problem-solving skills, and emotional and moral intelligence of the human brain itself” 99

While works that were created independently by AI were quite a challenge for instance technology, it is widely recognized that machines can come in handy in assisting the human author in the creative process

2.3.1 AI works as a tool

The idea that even though the author does not have full control over the outcome but still has an idea of what they expected to produce can make up the requirement for protection can be traced back to 1884 The case between Lithographic Co and Sarony is where photography was first recognized for copyright protection The camera used to capture the image of writer Oscar Wilde by photographer Napoleon Sarony was considered by the court as a tool which aided the author in creating an original.100

Nowadays, an author is generally aided with a computer that serves as a tool or help in the creation process that makes their job easier.101 The machine was no more than convenient for the creator to express their point of view The output can successfully display a human’s idea without any free choice from the AI “An example may be the creation of a painting by an artist who has selected the colors, tool type (brush size and stroke style) and has to some extent input his requirements into the AI algorithm used to create the work Although the artist cannot exactly predict the final version of the generated painting, he has directly contributed to its creation and has some expectations

99 Kurzweil, R (2005) The singularity is near: When humans transcend biology Penguin

100 Lithographic Co v Sarony, 111 U.S 53, 60 (1884) (“useful, new, harmonious, characteristic, and graceful picture, and that plaintiff made the same entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit." These findings, we think, show this photograph to be an original work of art, the product of plaintiff's intellectual invention, of which plaintiff is the author,”)

101 Perry, M., & Margoni, T (2010) From music tracks to Google maps: Who owns computer-generated works? Computer Law & Security Review, 26(6), 621-629 p 622

as to what it may look like”.102

An example that can be taken into account is the song “Daddy’s Car” It was composed by an artificial intelligence called Flow Machines in the style of The Beatles Musical arrangement and lyrics are later added in by humans

2.3.2 AI as co-creator

During the second session of WIPO Conversation on Intellectual Property (IP) and Artificial Intelligence (AI), Professor Seungwoo Son took an example from the current stage of applying AI into the process of making a song in the Korean entertainment industry.103 AI can produce rhythm within a very short time and if it has not met the standard to become a hit, composers are hired to fit the song into trend In this situation, the AI is able to make songs by itself without human intervention, and the touch of man only to raise the commercial value

In Japan, the case was taken further Well known composer Jun Inoue, wrote the song “Protect all Life - The Signs of the Times” to which the composing credit is shared with an AI.104 In this case, the AI can be recognized as a co-creator

2.3.3 AI-generated works with little or no human interference

The world has recorded AI’s ability to compose multiple art forms to the extent that little or no human is needed

With the rapid development of technology, it is viable that machines, at one point, are able to produce work without humans determining the result This is known as autonomous AI

Theoretically, the machine learning process, even though it does require human input at the beginning, will result in an evolution of the AI

102 Hristov, K (2016) Artificial intelligence and the copyright dilemma Idea, 57, 431

103 Seungwoo Son, WIPO Conversation on Intellectual Property (IP) and Artificial Intelligence (AI) second session <https://www.wipo.int/export/sites/www/about-

ip/en/artificial_intelligence/conversation_ip_ai/pdf/ind_son.pdf>

104 Hideto Sakai, Akira Tomoshige High-tech Japan uses AI in song to welcome pope (2019) <https://www.reuters.com/article/us-pope-japan-song-idUSKBN1XU072>

which can even lead to changes in the algorithm’s architecture and the outcome may no longer be predictable.105

Edmond de Belamy is a portrait created entirely by an AI The algorithm includes a Generator, responsible for creating works, and a Discriminator, responsible for examining the result of the Generator in order to spot the differences between a man-made work and an AI's The input is a dataset conducted of 15.000 portraits that was made from the 14th to the 19th century and the result is a painting of possibly a gentleman as the face feature is not distinguished and the overall work is blurry Nevertheless, Edmond de Belamy went on auction and was sold for 432.500 US dollars

2.3.4 The concept of AI-generated work

Since AI’s role in the creative process is different from one to another, the definition of AI-generated works should not apply to all works that have AI involved

As mentioned above, the work in which AI acts merely as a tool or contributes to the creation still has a heavy human imprint from the author in the works, hence, the fact that AI was used during the process should not affect the question of authorship or protection

No matter how advanced the tool is, how easy the tool might make the creative process to be, and how little the effort the creator put into the works, the copyright protection is granted to the author One of the most important principles of copyright law is to protect the personal imprint of the work and this should not affect the intention and expression of a human mind in the work by any means, therefore, copyright laws should not treat the author differently in this case.106

Moreover, the legal status of what is called AI-generated work is uncertain, the broader the concept is, the bigger the problem will be

105 Josef Drexl et al (2019) Technical Aspects of Artificial Intelligence: An Understanding from an

Intellectual Property Law Perspective Max Planck Institute for Innovation & Competition Research Paper,

(19-13) Available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3465577>

106 Grimmelman, J (2016) Copyright for Literate Robots Iowa L Rev 657, 101 (2), 657-681 p 408