#Breaking: A new chapter in #intellectualproperty rights. The age of #AI-generated content

Unlock the debate on AI-generated content and intellectual property 🤖🎨 and explore the complex world of AI, copyrights, and creativity!

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Written by DW team

As AI advances rapidly, machines are increasingly gaining human-like skills, which is increasingly blurring the distinction between humans and machines. Traditionally, computers were tools that assisted human creativity with clear distinctions: humans had sole ownership and authorship. However, recent AI developments enable machines to independently perform creative tasks, including complex functions such as software development and artistic endeavours like composing music, generating artwork, and even writing novels.

This has sparked debates about whether creations produced by machines should be protected by copyright and patent laws? Furthermore, the question of ownership and authorship becomes complex, as it raises the issue of whether credit should be given to the machine itself, the humans who created the AI, the works the AI feeds off from or perhaps none of the above?

This essay initiates a three-part series that delves into the influence of AI on intellectual property rights (IPR). To start off, we will elucidate the relationship between AI-generated content and copyright. In the following essays, we will assess the ramifications of AI on trademarks, patents, as well as the strategies employed to safeguard intellectual property (IP) in the age of AI.

Understanding IP and the impact of AI

In essence, IP encompasses a range of rights aimed at protecting human innovation and creativity. These rights include patents, copyrights, trademarks, and trade secrets. They serve as incentives for people and organisations to invest their time, resources, and intelligence in developing new ideas and inventions. Current intellectual property rules and laws focus on safeguarding the products of human intellectual effort.

Google recently provided financial support for an AI project designed to generate local news articles. Back in 2016, a consortium of museums and researchers based in the Netherlands revealed a portrait named ‘The Next Rembrandt’. This artwork was created by a computer that had meticulously analysed numerous pieces crafted by the 17th-century Dutch artist, Rembrandt Harmenszoon van Rijn. In principle, this invention could be seen as ineligible for copyright protection due to the absence of a human creator. As a result, they might be used and reused without limitations by anyone. This situation could present a major obstacle for companies selling these creations because the art isn’t protected by copyright laws, allowing anyone worldwide to use it without having to pay for it.

Hence, when it comes to creations that involve little to no human involvement the situation becomes more complex and blurred. Recent rulings in copyright law have been applied in two distinct ways.

One approach was to deny copyright protection to works generated by AI (computers), potentially allowing them to become part of the public domain. This approach has been adopted by most countries and was exemplified in the 2022 DABUS case, which centred around an AI-generated image. The US Copyright Office supported this stance by stating that AI lacks the necessary human authorship for a copyright claim. Other patent offices worldwide have made comparable decisions, except for South Africa, where the AI machine Device for Autonomous Bootstrapping of Unified Sentience (DABUS), is recognised as the inventor, and the machine’s owner is acknowledged as the patent holder.

In Europe, the Court of Justice of the European Union (CJEU) has made significant declarations, as seen in the influential Infopaq case (C-5/08 Infopaq International A/S v Danske Dagblades Forening). These declarations emphasise that copyright applies exclusively to original works, requiring that originality represents the author’s own intellectual creation. This typically means that an original work must reflect the author’s personal input, highlighting the need for a human author for copyright eligibility.

The second approach involved attributing authorship to human individuals, often the programmers or developers. This is the approach followed in countries like the UK, India, Ireland, and New Zealand. UK copyright law, specifically section 9(3) of the Copyright, Designs, and Patents Act (CDPA), embodies this approach, stating:

‘In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.’

AI-generated content and copyright

This illustrates that the laws in many countries are not equipped to handle copyright for non-human creations. One of the primary difficulties is determining authorship and ownership when it comes to AI-generated content. Many argue that it’s improbable for a copyrighted work to come into existence entirely devoid of human input. Typically, a human is likely to play a role in training an AI, and the system may acquire knowledge from copyrighted works created by humans. Furthermore, a human may guide the AI in determining the kind of work it generates, such as selecting the genre of a song and setting its tempo, etc. Nonetheless, as AI becomes more independent in producing art, music, and literature, traditional notions of authorship become unclear. Additionally, concerns have arisen about AI inadvertently replicating copyrighted material, raising questions about liability and accountability. The proliferation of open-source AI models also raises concerns about the boundaries of intellectual property.

In a recent case, US District Judge Beryl Howell ruled that art generated solely by AI cannot be granted copyright protection. This ruling underscores the need for human authorship to qualify for copyright. The case stemmed from Stephen Thaler’s attempt to secure copyright protection for AI-generated artworks. Thaler, the Chief Engineer at Imagination Engines, has been striving for legal recognition of AI-generated creations since 2018. Furthermore, the US Copyright Office has initiated a formal inquiry, called a notice of inquiry (NOI), to address copyright issues related to AI. The NOI aims to examine various aspects of copyright law and policy concerning AI technology. Microsoft is offering legal protection to users of its Copilot AI services who may face copyright infringement lawsuits. Brad Smith, Microsoft’s Chief Legal Officer, introduced the Copilot Copyright Commitment initiative, in which the company commits to assuming legal liabilities associated with copyright infringement claims arising from the use of its AI Copilot services.

On the other hand, Google has submitted a report to the Australian government, highlighting the legal uncertainty and copyright challenges that hinder the development of AI research in the country. Google suggests that there is a need for clarity regarding potential liability for the misuse or abuse of AI systems, as well as the establishment of a new copyright system to enable fair use of copyright-protected content. Google compares Australia unfavourably to other countries with more innovation-friendly legal environments, such as the USA and Singapore.

Read more on https://dig.watch/updates/a-new-chapter-in-intellectual-property-rights-the-age-of-ai-generated-content