The term "Artificial Intelligence" was devised by John McCarthy in 1956.[1] "The ability of machines to perform tasks that people would deem to require intelligence is referred to as artificial intelligence.". As the new phase dawns upon AI, these devices have been able to perform marvels that were once impossible. As AI takes a more dynamic role in our day to day lives, it becomes important to address the question regarding the status of ownership of the work created by AI. The impression that the machine is capable of intellectual labour is beyond the scope of current copyright law. Thus, we will examine if AI is capable of ownership under the Copyright law, the implications thereof and its disadvantages. We shall also discuss the alternate options of either giving ownership to the developer or assigning the ownership of work created by AI to public domain.
ARTIFICIAL INTELLIGENCE AND COPYRIGHT
There has been wide use of computer programs in the generation of copyrighted works since the 1970s. The AI has the potential to create a massive amount of work with less investment in a very short time. The works created by AI may qualify for copyright protection in all the jurisdictions for being original. The necessity of use of "skill and judgement" in originality may be deemed to have been gratified by virtue of the "programming and parameter on which such AI actually compiles and creates the work". However, there will be no author in the case of AI-generated work. The issue of authorship in such cases has mystified all countries of the world. There can be three possibilities with respect to the authorship issue
I. the copyright system should identify authorship for AI;
II. there should be no authorship in AI-generated work and the work should drop into the "public domain"; and
III. there should be sui generis law rather than copyright law to guard such works.
The evidence which reflects from civil law countries such as Germany, France and Spain direct that works created must bear the "imprint of the author's personality". The authorship, therefore, should be denied to AI in the AI-generated works as the AI does not have personality. Making AI a legal entity would mean that it should possess the capacity to enter into contracts with other persons. It will also have duties under the law and will be liable for its acts. Most prominently, it should have the capacity "to sue and be sued" under the law. It will, however, not be out of place to mention that the European Parliament has advocated to grant the legal status of "electronic persons" to "autonomous robots" for the purposes of protection under copyright law. It may also be added that Artificial Intelligence Virtual Artist (AIVA) Technologies' "music composing AI becomes the first in the world to lawfully be given the status of a composer". It is also notable that Saudi Arabia has granted citizenship to an AI humanoid robot, Sophia in 2017. Dr. David Hanson, who created Sophia writes in his paper titled "Entering the Age of Living Intelligence Systems and Android Society" that looking at the progress in AI Robots will eventually reach a tipping point where they will awaken and demand the right to exist, to live in freedom, and to reach their full potential.". This also means that they will be claiming intellectual property protection with respect to Intellectual Property Rights they will create. According to him, "advanced robots will have the right to marry, own land and vote in elections by 2045".
CAN AI BE GIVEN OWNERSHIP OF INTELLECTUAL PROPERTY UNDER THE CURRENT COPYRIGHT LAW?
For a work to be given protection under copyright law there are a few necessities. Since it is not the idea but the expression of ideas that can be copyrighted, it is important that the form of the art be in a tangible form, creative enough that it differs from the original work or is an original work. In most cases where the inventor of this software are humans, the application of the law is unchallenging as it suits the Copyright law's idea of a person being the original author/creator, but as Artificial Intelligence becomes more "intelligent" in their part as the assistants of humans in the creation of a wide range of products and become more independent to develop their own individual products; the law here does not provide a clear resolution.
Can AI then be deemed as an inventor, author, and own/sell the intellectual property?
In Tata Consultancy Services v. State of Andhra Pradesh[2], computer programs were held to be tangible.
In R.G Anand v. M/S. Delux Films[3], it was pointed out that the law does not identify property rights in abstract ideas, nor is an idea protected by copyright and it becomes copyright and exists only when the idea is given embodiment in a tangible form.
Therefore, observing both the case laws, AI seems to be eligible for generating tangible work. Conferring the authorship rights is doubtful since courts till now have tried to give it to the closest human person who caused the work to be created. The Indian Copyright Act requires a certain amount of creativity to characterize work as copyrightable. Sec.2(y)[4] defines work as a literary, dramatic, musical, or artistic work, a cinematograph film, or a sound recording. Sec.2(o) expands on the list to include computer programs, table compilations, etc. Sec.13 enlists what work qualifies for a copyright claim. Sec52 gives the exceptions.
HURDLES IN GIVING AI COPYRIGHT
A. THE SWEAT & BROW THEORY
One might just say, that by giving AI the right to copyright ownership, no valuable end is served. An AI cannot protect its own creations as it cannot sue, it has no financial object like other creators to protect his creations and it can produce boundless creations at the blink of an eye. Enforceability of the law in respect of Artificial Intelligence is not certain.
B. THE COPYRIGHT ACT INFERS THE AUTHOR TO BE A HUMAN ENTITY
It must be observed that the definition of author under the Indian Copyright Act does not remark of an animate individual (human) and does not mention of the legal personality of the author. They have considered computers as mere tool for humans to use in their creative endeavours. This creates a void in the legislation as to whether a machine which is capable of independent creative thought process can have separate ownership rights? This issue can be rectified by understanding the intent of the legislation.
C. LEGAL PERSON
Artificial Intelligence is not a recognized legal entity and there isn't any process of registering an AI as a legal entity. While one can say that even corporations are given legal identity, however, Solum believes that corporations have humans who create its board of directors or the senior management which exerts control over the corporations. Whether this should be followed as a precedent for giving legal personhood to AI, AI will have to exhibit a broad range of intellectual abilities before they can resemble human like perceptual capabilities.
Conclusion
The role of AI is going to increase in all segments in our day to day lives. In case of intellectual property rights, particularly in copyright, AI will continue to play an enormously important role. The issues of authorship and ownership of AI-generated works in copyright law have forced the international community to think an acceptable solution for all countries. There will be significant complications for offering non-human authorship to AI-generated works. Putting the AI-generated works in the public domain is also not a good idea as it will daunt the AI programmers and companies owning such AI to further invest in the AI domain. The WIPO is working hard to address these issues. A balanced approach is therefore, the need of the hour.
References:
[1] Fredy Sánchez Merino, "Artificial Intelligence and a New Cornerstone for Authorship", WIPO-WTO Colloquium Papers, 2018, p. 28. 8
[2] Tata Consultancy Services v. State of Andhra Pradesh, (2004) 137 STC 620 (India).
[3] R.G Anand vs M/S. Delux Films, AIR 1978 SC 1613 (India); Bobbs-Merrill Company v. Isidor Straus & Nathan Straus, 210 US 339 (28 S.Ct. 722, 52 L.Ed. 1086).
[4] Copyright act,1957
No comments:
Post a Comment