The crow crooked on more beautiful and free,
He journeyed off into the quarter sea.
His radiant ribs girdled empty and very –
Least beautiful as dignified to see"
Don’t worry, we did not suddenly become aspiring poets at Legal ICT; this is a poem made by artificial intelligence (AI). As you can see, art may not be something exclusively human anymore: robots are becoming increasingly creative as well. For example: this mechanical arm makes paintings, and this song was composed by an algorithm.
The more complex artificial intelligence becomes, the higher the probability that these systems will be able to make creative choices. As with all new technologies, it remains to be seen whether and how current law is applicable. In this example of 'creative robots' we can ask ourselves who will be the copyright owner of art created by these intelligent systems: the inventor, the robot or nobody?
Artificial intelligence is a term which is used to describe machines that are capable of independent problem-solving and thus show similarities with the human brain. Nowadays, many of these systems are able to learn, for example how to review NDA's, and it is expected that they will surpass humans in learning and task-solving capability. However, the day on which artificial intelligence will be able to replace us has yet to come. AI is currently focused on performing specific tasks, such as the processing of voice-commands (Siri, Bixby, Cortana, and Alexa), winning strategy board games (Deepblue, AlphaGo) and being able to independently drive a car (Waymo, Uber, and Tesla). It is expected that machines will be able to possess a more general intelligence, similar to the human intelligence. Robots will be able to make creative choices through this intelligence.
Copyright protection results automatically by creating literary or artistic works. The author has to express his creativity in an original manner as well (as stated by the CJEU in the Infopaq-case). This expression should result in an intellectual creation. In principle, the author will always be the copyright owner of the created work, but this right is transferable. In most Member States, the copyright of a work created by an employee will be automatically transferred to the employer. Usually this is only the case for employment-related works. When a pilot writes a book during his flights, he will normally be the copyright owner of this work.
Copyright protection consists of exploitation rights and moral rights. Through exploitation rights, one is able to make money from their work: it can only be publicized or copied with the permission of the author (this permission is often called a 'license'). The moral rights concern the acknowledgment of one's work. This includes the right to claim authorship of the work and the right to object to any mutilation, deformation or other modification of the work.
Copyright law is made for humans, and not for robots. Will it still be applicable on works created by artificial intelligence?
The monkey that took selfies
To answer the question if robots are able to possess copyright on works they created: no, they are not. The law is written for humans, and therefore only humans - and human organisations - are able to possess rights (in law terms: they are 'legal persons').
In 2016, an interesting case arose in the United States. A monkey stole the camera of a photographer and took several pictures with it, including a selfie which subsequently went viral. The United States judge considered that the monkey was not able to possess copyright under the current law. That meant that the pictures ended up in the public domain.
The owner of the camera nevertheless wanted the copyright on the photographs, to be able to profit off of them. However, this was hard to defend from a legal perspective. There had been no creativity from the photographer. It also seemed that he did not purposefully give his camera to the monkey, in order for the animal to take a selfie.
Imagine a different situation: if the monkey had an owner, could this owner claim the copyright on the animal-made photographs? After all, the owner would be liable after a biting incident as well. However, it does not seem likely that the monkey knew it was taking pictures (let alone he was taking creative choices), which means that there did not arise any copyright. There would have been no rights to transfer to the owner at all.
Who owns the copyright on works created by robots (if any)?
What about robots? Imagine that robots could actually make original and creative choices in the future, would they own the copyright on their works? That seems strange, could robots even exploit their copyrights? Or why would they want to? Usually, a robot only wants to do the things his programmer tells him to do (with the exception of terminator-scenarios, of course). When robots will be further developed, and their intelligence is indistinguishable from human intelligence, there is an argument for giving them the status of a legal person (and thus allowing them to possess copyrights).
Until this science-fiction becomes reality, it seems preferable to give the copyrights on robot-made art to the maker of the robot. The maker invests time and money to develop a robot that is able to make art. Furthermore, this process requires a lot of creative choices as well. The software-code of the algorithms is also already protected. In contrary to the robot, the maker actually benefits from these rights. It stimulates developers of algorithms and robots to keep investing, as they can actually reap the rewards by owning the copyrights.
This transfer of copyrights from the robot upon the maker could be achieved in the same way as the transfer between an employee and employer. This means that the copyrights would be automatically transferred to the maker of the artificial intelligence.
It probably takes a while before actual creative robots will be developed, this gives the legislator some time to think about this issue. Until then we can just enjoy human art about robots, instead of the other way around.
This article was written by Cas Mevissen, in collaboration with Matthijs van Bergen.