Who owns Copyright in an AI Invention? – Oluwafunmilayo Mayowa

Intellectual Property

30th December 2019.

 

Olufunmilayo Mayowa[1]

 

Who Owns the Copyright in an AI Invention?

 

Introduction

 

Copyright confers on the creator of a work of authorship an exclusive right to use and control the use of a protected material. Works eligible for copyright protection include: literary works such as novels, poems, plays, reference works, newspaper articles; computer programs, software, databases; films, musical compositions, and choreography; artistic works such as paintings, drawings, photographs, and sculpture; architecture; and advertisements, maps, and technical drawings.[2]

The Artificial intelligence (“AI’’) system is gradually becoming a global phenomenon with increasing significance and relevance in almost every facet of human society/activity. Copyright protects the software programmes which make up the “building blocks” of the AI system.[3] With the growth in the current trends coupled with continuous research and development of the AI systems, machines and Al computer programmes are predicted to become the major creators and inventors of the future.[4] This raises a very important question; who would own the works produced by these computers?

Copyright Over AI Inventions

The term “Artificial Intelligence” which was first coined in 1956 by John McCarthy is defined by the English Oxford Living Dictionary as “the theory and development of computer system, able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision making and translation between languages”. In simple terms, it is “the capability of a machine to imitate intelligent human behaviour”.[5]

Al is now largely being employed in the creation of copyrightable work worldwide and it is used as a tool to enhance human creativity. These machines and software applications also possess creative abilities like human and can create artistic designs,[6] literary works, and news articles and even compose/generate music.[7] In fact, some of these computers participate in competitions with humans; a short novel written by a Japanese computer program in 2016 reached the second round of a national literary prize.[8] This awesome ability is as a result of built-in algorithms giving them the capabilities to learn from data inputs and as a result, evolve and make decisions. These decisions may either be instructed or independently made by the computer programme. This development of intelligent machines, however, comes with attendant legal challenges.

Traditionally, the authorship or ownership of copyrightable works which are computer-generated was not in doubt. The popular belief is that since a computer is a man-made invention, it is deemed as a tool in the hand of a human creator, consequently authorship of the resultant work would belong to the human creator. The current impact of Al is starting to disrupt this seemingly rigid traditional presumption.[9]

The question of who should own the copyright of an Al creative work is still largely unanswered. There are divergent views on the point. The current position of copyright legislations worldwide is that human authorship is an indispensable requirement for copyright protection. Most copyright jurisdictions across the world only recognise natural persons and registered corporations as authors who are entitled to appropriate both economic and moral rights over the created work. In England, the Copyright Design and Patent Act makes provision for computer-generated works.[10] It provides that the author of a computer-generated work is the person by whom the arrangements for the creation of the work were undertaken. The Act grants the author 50 years protection but does not include moral rights.[11] In New Zealand, copyrights on works made by machines, belong to “whoever has undertaken the necessary provisions for the creation of the work.”[12] In other words, copyright in such work will not be conferred on the machine/Al but on the  person who created the machine. This same position holds true in the USA and Spain.

In Nigeria, copyright is conferred only on a qualified person i.e. an individual who is a citizen of or who is domiciled in Nigeria or an incorporated entity registered under Nigerian law.[13] Although the Nigerian Copyright Act makes no reference to computer-generated works, it can be deduced from the Act that only humans are capable of owning copyright over a work. Therefore, where a work is created by a machine in Nigeria, the copyright in that work will be conferred on the human inventor or programmer.

In addition to the above, the popular belief is that the ability of an Al to “independently” create copyrightable content is limited, in the sense that the invention by an Al more often than not, originates from the initial instructions or data feed to the Al by the human being, i.e., the Al makes inventions based on the instructions programmed by the human being in the form of algorithms on which the Al operates.[14] There is always a human input in the creativity process, no matter how minute, and although such human agent may not contribute to the actual creative or expressive form, he or she often predicts the end-result of the activity. Therefore, since the creative process of Al works are usually initiated by a human, it suffices to say that the copyright in the work should belong to the human creator. Furthermore, one of the major incentives for investments in the research and development of Al is the acquisition of proprietary rights in the eventual outputs of the Al.

The position of the law that only humans can own copyright was strongly affirmed by the US Court of Appeal in the notorious “Monkey Selfie” case. In that case, a UK Wildlife photographer, David Slater had in July 2011, visited a wildlife park in Indonesia to take unique pictures of some rare macaque monkeys. At some point, he intentionally left his camera on a tripod for the monkeys to explore as they seemed curious. One of the monkeys named Naruto, took the camera and snapped “selfies” of itself.[15] David Slater then went on to print and publish several copies of the pictures. An animal rights group, People for the Ethical Treatment of Animals (PETA) sued Slater in 2015 on behalf of Naruto for copyright infringement.[16] The Ninth Circuit Court of Appeals upholding the judgment of the lower Court dismissed the appeal by PETA and held that copyright protection cannot be granted to animals, being a non-human entity. This case clearly reinforces the general rule that non-human entities such as Al and other machines, are not entitled to copyright protection.

There are, nonetheless, some dissenting opinions to the above position. For example, Simon Colton, the creator of “The Painting Fool”, an AI which paints excellently well believes that artificial intelligence should be accorded authorship over the creations it makes. According to him, “If artificial intelligence is not the material owner of the fruit of its work, then it will never be more than a tool, a means of production, that software is taken seriously as a creative entity is the ultimate goal of computer creativity”.[17] Agitations are also sprouting at different levels on the need to revisit the global intellectual property law regime in view of the need to attribute copyright or other IPRs to the rightful inventor or creator – the AI! An international team led by a professor Ryan Abbott of the University of Surrey United Kingdom filed patent applications in the US, UK and the European Patent Office naming the AI system as the sole inventor. According to him, the Al had created the unique designs without any human contribution.[18]

It is also worthy of note that in January 20, 2015, the European Union formed a committee on legal issues related to the evolution of robotics and artificial intelligence. The committee proposed some Civil Law rules which was intended to guarantee the legal status of robots, which are granted the status of “electronic persons”. The proposal stated that “the most sophisticated autonomous robots could receive the status of an electronic person, with specific rights and obligations, including to amend damages they cause”.[19]

Conclusion

The impact and continuous relevance of Al in medicine, art, music, sports etc, is no longer deniable, even in Nigeria. Recently, Globacom announced its plans to launch Artificial Intelligences in its telecoms services in Nigeria.[20] The company reportedly remarked that “the AI platform would engage customers directly and assist them to get information on pressing issues.” The Glo AI platform, which will be the first of its kind in the local telecoms sector, will enable conversation in English and Pidgin through voice & text.[21]

In the nearest future, it might become extremely important to amend existing IP legal regimes in order to provide for computer-generated works and Al operation, both in Nigeria and internationally. The Law needs to clearly identify the rights, if any, attributable to the Al for its inventions. Alternatively, a computer or Al related IP legislation may be enacted to deal with the intricacies associated with authorship of Al and computer-generated works, among others.

However, as rightly pointed out elsewhere, the legislators in drafting the recommended laws should be careful not to include provisions that will stifle or destroy human creativity.[22] If the copyright legislation is amended to grant absolute copyright protection to Al and invariably personhood, this might affect human creativity. The growing sophistication and complexities involved in the Al system means that the works created by the Al could also become more sophisticated and improved compared to those made by a human being. Al inventions are already being considered as superior compared to that of humans. For example, Google recently reported that its Al created its own Al which is considered more superior than those made by humans.[23] This might end up creating a market monopoly for Al works, thereby reducing incentives for creativity by humans.

There is also the issue of liability for copyright infringement. The legislators should also make clear provisions stipulating who would be liable for copyright infringement; both civil and criminal, committed by an Al independently or in conjunction with a human being, and appropriate means of enforcement.

 

 

For further information on this article and area of law, please contact Olufunmilayo Mayowa at: S. P. A. Ajibade & Co., Lagos by telephone (+234 1 472 9890), fax (+234 1 4605092), mobile (+234.810.952.8293) or email (omayowa@spaajibade.com).

www.spaajibade.com

[1]      Oluwafunmilayo Mayowa, NYSC Intern, SPA Ajibade & Co., Lagos, Nigeria.

[2]     WIPO, “Copyright” available at https://www.wipo.int/copyright/en/ accessed 28th October 2019. This list is inexhaustive and varies depending on the copyright law of each country. In Nigeria, section 1 of the Copyright Act 1988 Cap C28 Laws of the Federation of Nigeria 2004 outlines the categories of works eligible for copyright protection.

[3]     Ibid.

[4]     Ademola Adeyanju, “The Role of Intellectual Property in Artificial Intelligence” available at http://www.mondaq.com/Nigeria/x/794610/Patent/The+Role+Of+Intellectual+Property+In+Artificial+Intelligence accessed 3rd December 2019.

[5]     Merriam Webster online Dictionary “Artificial Intelligence” https://www.merriam-webster.com/dictionary/artificial%20intelligence accessed 13th December 2019.

[6]      A group of researchers in the Netherlands in 2016 revealed a portrait called  The “Next Rembrandt”, a new

artwork created by a computer that had analysed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn.

[7]     Andres Guadamuz, ‘Artificial Intelligence and Copyright’, World Intellectual Property Organization [WIPO] Magazine (October 2017), available at <https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html> accessed 17th August 2019.

[8]     Ibid.

[9]     Anjana Viswanath, “Intellectual Property and Artificial Intelligence” available on http://www.mondaq.com/india/x/852186/Patent/INTELLECTUAL+PROPERTY+AND+ARTIFICIAL accessed 11th December 2019.

[10]    Section 9(3) of the Copyright Design and Patent Act 1988 UK.

[11]    Ibid.

[12]    Section 5(2)(a) of the Copyright Act 1994 New Zealand.

[13]    Section 2(1) Copyright Act 1988 supra.

[14]    Maria Diaz “Artificial Intelligence and Copyright” available at https://www.lexology.com/library/detail.aspx?g=ab3340fa-57e5-4145-afe9-110b088c9e36 accessed 12th December 2019.

[15]    Andres Guadamuz, “Can the Monkey-selfie case teach us anything about Copyright Law?” https://www.wipo.int/wipo_magazine/en/2018/01/article_0007.html accessed on 6th December 2019.

[16]    Naruto v. Slater, No. 16-15469 (9th Cir. 2018).

[17]    Ibid.

[18]      Laura Butler “World first patent applications filed for inventions generated solely by artificial intelligence” https://www.surrey.ac.uk/news/world-first-patent-applications-filed-inventions-generated-solely-artificial-intelligence accessed 2nd December 2019.

[19]      Maria Diaz, “Artificial intelligence and copyright”

https://www.lexology.com/library/detail.aspx?g=ab3340fa-57e5-4145-afe9-110b088c9e36 accessed 30th October 2019.

[20]    Glo set to deploy Nigeria’s 1st Artificial Intelligence in telecoms, https://www.gloworld.com/ng/latest-news/glo-set-to-deploy-nigerias-1st-artificial-intelligence-in-telecoms/ accessed 27th November 2019.

[21]    Ibid.

[22]    Ademola Adeyanju, “Role of Intellectual property in Artificial Intelligence” supra.

[23]      Kavita Iyer, “Google’s AI Creates Its Own AI That Is Superior than the Ones Made by Humans”

https://www.techworm.net/2017/12/googles-ai-creates-ai-superior-ones-made-humans.html accessed 5th December 2019.

 

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