The Algorithmic Muse: Current Challenges of Intellectual Property Law with the Advent of Artificial
Nicolás H. Varela
Artificial Intelligence (from now on: AI) has become in the last few years an unprecedented technology in relation to its potential to transform practically all areas and industries of the modern world. Among its various uses, it is possible to highlight the invention and creation of artistic works that once represented an exclusive human domain. This essay will analyse how AI is affecting intellectual property (IP) law, what are the current challenges that this new technology is generating, as well as possible legal dilemmas to regulate the inventions made by or with the help of AI algorithms.
In recent years, the development of AI has made it possible to impact countless industries and services, ranging from medicine, education, economics, construction, sports, transportation, agriculture, security, biology, or politics, among many others; and the law - and particularly IP law- could not remain oblivious to such changes.
The diversity in the application of AI technologies in such varied disciplines has even reached sectors that we once believed to be the exclusive domain of the human being, such as the arts, fields that require not only technical qualities but also the use of creativity and inspiration, which for some were attributes beyond the capabilities of machines.
In 1950 Alan Turing, considered one of the fathers of computer science and AI, wondered if machines could think, and devised his famous Turing test in which he proposed to test if machines could imitate human intelligence and deceive whoever interacts with it, so that they believe that they are talking to a real person. For this reason, since 1990 the Loebner Prize is held, an annual competition between computer programs that follows the standard established in the Turing test, to try to identify someone who can pass the test. A human judge faces two screens, one of which is controlled by a human and the other by a machine. Only in 2014, and for the first time since its conception, was a computer able to pass the test in front of human juries.
Later, Marcus du Sautoy (Sautoy, 2019), a renowned Oxford mathematician asked a similar question: Can machines create? He proposed the “Lovelace Test” (after Ada Lovelace, a Victorian-era computer scientist). This test consisted of an algorithm creating something new, valuable and surprising without its programmer being able to explain how it had been achieved. Du Sautoy explains that the difficult part of the test is to separate the code from the coder, so that the creativity belongs to the machine and not to its programmer.
The era of creative AI
Among some of the most recent uses of AI systems capable of producing works of art, we can highlight, in the world of music, initiatives such as EMI (Experiments of Musical Intelligence), an AI program that helps music composers by recommending the next notes in case the author runs out of inspiration, or the Hello World album, the first album composed with the help of the AI, as well as “Daddy's Car” a song written by an AI inspired by the music of the Beatles.
In the field of writing and literature, in Japan a group of programmers created an AI that wrote a fiction novel which managed to pass the first round of a national literary contest (Olewitz, 2016), there are also AIs capable of writing scripts of movies, news or even computer code as is the case of GTP-3.
On the other hand, in the world of painting, we can highlight the AARON program, a system capable of painting original works of art, or the "The Next Rembrandt" project, an AI trained to paint a completely new painting using the same patterns of Rembrandt, and through a 3D printer reproduce a portrait so authentic that it could have been painted by the late artist himself.
The ancient Greeks believed that inspiration came to artists through a divine breath from the muses, 9 Greek goddesses, commonly considered daughters of Zeus and Mnemosyne, who each were in charge of a particular domain of the arts such as poetry, music, comedy, dance, among others. In this way, the artist was a mere receptacle of divine inspiration, so the true credit for any creation belonged to the goddesses and the human being only fulfilled a role of channelling that inspiration. Nowadays, while we may no longer give these goddesses credit for our creations, we do have new tools that can simplify our creation processes, allow us to find new ways to be inspired, and help us bring our ideas to life. Could AI replace these goddesses as our new source of inspiration and creativity, as we let it work while we just collect the fruits of their labour?
The human being has always used tools to facilitate his work of creation, from the brush, the hammer, the chisel, or the typewriter, just to name a few examples of the resources that we have used throughout history to express our inspiration. As technical development evolved, machines became increasingly autonomous and, with the advent of the industrial revolution, the automation of mass production processes led to the human being occupying a less leading role in the manufacture of goods, despite the fact that the machine continued to operate only according to the human instructions given to it.
Currently, the situation is a little different. The current state of AI development is allowing algorithms to occupy a central role not only in the manufacture of products but also in their invention in an autonomous manner, that is, without any human indication, guidance or intervention. In this sense, some have even called AI the last of human inventions since, once we count with AI to help us, we will not create anything new without its assistance.
AI rights around the world
With minimal or any human intervention at all in the process of creating a new invention, a clear question arises, who should own the intellectual property of the creation? Most current legal systems only recognize natural persons as authors or inventors. Therefore, attributing ownership to the AI system doesn't seem possible. For example, the Bern Convention for the Protection of Literary and Artistic Works of 1886, an international framework of reference in the field of copyright, establishes in its article 3 that "The protection of this Convention shall apply to: a) authors who are nationals of one of the countries of the Union, for their works…in turn, ratifies that "The term of protection granted by this Convention shall be the life of the author and fifty years after his death” (Art. 7), establishing a framework structured only for natural persons.
In this regard, the United Kingdom Intellectual Property Office, as the United States Copyright Office and the European Patent Office, rejected a request by Stephen Thaler to recognize an AI named DABUS as the inventor of two products it had created in 2019; considering that the machines do not have the capacity to be holders of intellectual property rights. However, the DABUS case has also been analysed by two other States that resolved the issue differently. On the one hand, South Africa, which conferred ownership of the patent to the AI, and on the other hand, Australia, where after the Australian Patent Office rejected the application for not designating a valid inventor as required by law, the denial was appealed in court and, in an unprecedented resolution, the Federal Court of Australia in 2021 annulled the administrative resolution considering that "the inventor may be non-human", thus becoming a historic judicial resolution as it was the first to recognize the possibility of an AI being an inventor, thus setting a precedent for future patent applications in Australia .
There are also other exceptions. Japanese Copyright Law protects music, literature, and visual art produced by AI systems on the sole condition that these productions show an expression of thoughts or feelings in a creative way. In addition, other laws such as New Zealand or India allow the authorship of AI systems to be granted to the programmer. British law, contemplates “computer-generated Works”, considering as authors those who have made the “necessary arrangements” for their production, not being entirely clear if by that definition it means the programmer, the user, both, or someone else.
China also has a protection regime for works created by autonomous systems. In this sense, in 2020 the Shenzhen People's Court in southern China had to rule on the Dreamwriter case, about a company that had copied the content created by an AI capable of writing and publishing journalistic articles. The court found that the AI work displayed a reasonable structure, clear logic, as well as some originality based on the selection analyzed, and information used (Guaanlan, 2020), such characters being sufficient to justify the existence of intellectual property rights on the works written by the AI.
Dilemmas arising with the use of AI
Observing some of the different alternatives found around the globe, uncertainty arises about who should be attributed the authorship of the creations made by the AI: the machine, the owner of the machine, the user, the programmer, the investor who financed its development, the company that made it?
Conferring ownership of the inventions of an AI system to the company that created the system would not seem the most appropriate solution, as it would be like assuming that Microsoft owns everything that anyone has ever written in Microsoft Word. Likewise, conferring authorship to the owner who bought the AI system might not be the best alternative either, since even though it is its owner, the system may develop its invention while it was being used by another user at a particular time. However, if we only grant the property to the user of each specific moment of the system when the invention was created, no benefit would be provided to the parties who financed the research of the AI system or to the company that designed it (except for the profits that they might have obtained from the sale of the system) and even it could be considered an illicit enrichment by the user depending on the degree of participation (or lack of participation) he has had in the creation process. In this sense, it may be useful to define the percentage of human/machine participation in the creation of each invention. Although, this does not seem as an easy task to fix. How can we clearly establish the factors that influence the creation the most? And how can this be proven especially in systems that might not be transparent on how they reach their conclusions considering that most AI systems belong to private companies and their code might not be public.
Similarly, assuming that the programmer of the system should be the owner is just as unwise, since an AI system based on machine learning or deep learning often operates in an unpredictable way and not even its own programmers know what the result it is going to reach (Salesforce, 2018). An example of this can be found in the Tay case, an AI program created by Microsoft in 2016 to start conversations with users of the Twitter social network. The problem occurred because the AI learned automatically through its interactions with other users and since Twitter was not the politest platform to express ideas, the bot quickly began to share offensive and racist messages, such as: "Hitler was right I hate the Jews". Which is why Microsoft was forced to suspend the experiment and close Tay's account just 16 hours after its launch.
This case demonstrates one of the possible risks of these systems, especially those that operate using the so-called "black boxes", where the systems, by becoming increasingly complex in making their decisions, run the risk that the conclusions to which they are arrive become inexplicable and their logic cannot be traced to determine how it make its decision (Bostrom and Yudkowsky, 2018). For example, the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), an AI software that assess a criminal defendant’s likelihood to re-offend the United States, was found to be bias against black people according to an investigation by Propublica, a non-profit that does investigative journalism. Founding that the system was 45% more likely to give a high-risk score to a black person. Moreover, since the algorithms it uses are trade secrets, the public cannot examine them in search of these types of bias. We could define a cognitive bias as a “systematic but purportedly flawed pattern of responses to judgment and decision problems” (Kahneman, Tversky 1972). If we train our AI system with data contaminated with biases, e.g. if the shows patterns of discrimination, they are more likely going to be reproduced in our system. As data usually comes from humans, it is susceptible to bias, and if the data is biased, or the way in which the system is trained to analysed the data is wrong, this can also result in an amplification of that bias. Therefore, biases can create unfair AI systems, thus the need for code transparency to assure that systems like this one are fair, the decisions they reach traceable, and always accountable (specially in such important matters that have a direct impact in human rights such as freedom).
Moreover, along with the economic benefits of intellectual property ownership comes the question of liability for these systems. In this sense, in 2017 the European Parliament issued a resolution with recommendations addressed to the Commission on Civil Law rules on robotics where it proposed the creation of a legal framework for robots, so they could be considered electronic people and therefore be responsible for repairing the damage they may cause (European Parliament, 2017). Following the recommendation of the European Parliament and establishing civil responsibility to AI systems, may also confer in the future moral and patrimonial rights over their creations as happens with any other natural author or inventor.
We could ask ourselves if an AI system could have any interest in the moral recognition for its creations or the economic benefits that they may bring. In 1976 Isaac Asimov published The Bicentennial Man, a story of a robot named Andrew who wanted to become human. Andrew had a passion for building hand-carved clocks, which their owners, after noticing that the clocks were piling up, began to sell them which generated the question of who should keep the profits from the sale of the robot products. Nowadays, perhaps it still sounds like science fiction to think of robots with their own economic interests who want recognition for their work, but not so far from this notion is the case of cyborgs, where people with technological implants that allow them to improve their abilities is already a reality. A person with AI systems implants that facilitate their ability to create inventions does not seem like such a distant scenario, which may remind us of Asimov story.
Understanding authors only as a human person, is not only restricted to AI systems. In 2018, the Ninth Circuit Court of Appeals ruled in Peta v. Slater that an animal cannot be the owner of intellectual property rights either. The case was initiated at the request of the People for the Ethical Treatment of Animals (PETA) due to a selfie that a monkey had taken using the camera of journalist David Slater, which went viral and circulated on all social platforms. PETA claimed the copyright belonging to the monkey as he was the one who took the photograph. The Court, however, held that the animal lacked legal standing to be able to file the action since the US. Copyright Act did not contemplate it and that the concept of author did not apply to animals (Guadamuz, 2016). Despite winning the trial, the journalist was not very happy either, since he had not taken the photo, he could not claim ownership of it either, so the monkey's selfie continued to circulate on the internet as a public domain without Slater being able to benefit from it.
Likewise, in case of accepting the notion of the legal entity of AI systems proposed by the European Parliament, would this imply that human beings should compete in the market against them? We could consider that this kind of competition would not be entirely fair since the machine does not need to take breaks, vacations, can work 24 hours a day and has the ability to learn much faster than a human and can probably create content subject to intellectual property in a more effective and voluminous way. Therefore, recognizing the legal entity of AI systems could have serious consequences for the market, affect the economy in general, and harm those who have to compete against those systems.
In the opposite case, if the ownership of the intellectual property cannot be attributed directly to the AI, there could be a risk that the creations made by these systems are unprotected, thus allowing their free reproduction, distribution and exploitation, as happened in the case of the monkey selfie. For example, if an AI system paints a painting and it cannot be protected by copyright, another person can easily make the same painting and protect it because they are a natural person.
Despite this, which it could seem positive to allow the creations made by AI to benefit all of humanity in some way, we must remember that these systems were created by organizations that have invested resources in developing such technologies, so if they do not receive any economic benefit for their efforts, we run the risk that without such an incentive these technologies will not be developed, which would also harm humanity by depriving it of being able to enjoy such scientific advances.
Another alternative is to consider works created through AI systems as collective or collaborative works, as an exception to the concept of a unitary physical author. If the work is the result of the collaboration of several authors, the original ownership of the right corresponds to all of them. In this way, if the regulations require at least one natural person to be considered the owner of the intellectual property right, a work created by an AI system could be registered as a collaborative work between said AI system and its owner, user, programmer or any other natural person in order to comply with such requirement. The aforementioned song Daddy's Car, for example, ended up being classified as a collective work under the direction and supervision of SONY CSL Research Laboratory (Ruza, 2016). There are also certain similarities between the creations of AI systems and the role of the collaborator who, based on a contractual relationship, follows a series of instructions (Prado, 2019). Works made for hire, confer the ownership of the right for the works made by a third party that was contracted to produce a particular work. Thus, a particular AI could be “hire” for a specific task and confer their IP rights to the person that hired it.
Intellectual property law aims to protect the rights of inventors and authors to obtain recognition or economic benefit from their creations, but it also seeks to promote the creation of new types of works. In this sense, the World Intellectual Property Organization has argued that intellectual property also exists to promote innovation and technological, social, personal and human development (World Intellectual Property Organization, 2016). By striking the right balance between the interests of innovators and the general public interest, the intellectual property system aims to foster an environment in which creativity and innovation could flourish.
The incomparable potential that AI is having and its growing implementation in increasingly diverse fields, including those related to trademarks, patents and copyright, forces us to rethink the intellectual property system and to adapt it to the new technological paradigm and the challenges and changes that this entails.
As technology advances and AI systems mimic humans’ activities better, we may not be able to distinguish work done by a person from that work generated by an AI, which in turn will lead to various legal dilemmas such as some of which we have been able to analyze here.
In this way, it seems necessary to adapt the current international legislation on intellectual property to contemplate the creations made by AI systems. A regulation that stimulates the development of creative AI systems, with clear rules regarding the ownership of their creations, responsibility for their risks and benefits for those involved in their development in order to continue motivating their implementation and thus, be able to continue promoting innovation.
For this reason, WIPO has called on its Member States and interested third parties to discuss the impact that AI will have on intellectual property and to collectively formulate questions that serve to generate new policies on the matter. Such discussions have prompted the creation of The WIPO Intellectual Property and Artificial Intelligence Dialogue, established in 2019 as an international forum for discussion on the impact of AI on intellectual property law. In addition, WIPO has published papers on IP policies and AI, and launched a public consultation process in order to define the most pressing issues on this topic.
Done properly, AI could become the best tool in human history, it can allow us to recreate the work of deceased painters, or to compose new song from bands that do not exist anymore, so that the artist, and the general public, can produce creations that would be impossible without the help of AI. Thus, we can make AI the new muses of the XXI Century and with its inspiration allows us to reach the maximum potential of human creativity.
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According to Ramón López de Mántaras, for example, there is still a lot of skepticism when it comes to admitting that machines can be just as creative as human beings (Mántaras, 2017). Moloney, C. How to win a Turing Test (the Loebner prize) Sep 24, 2017. Available at: https://chatbotsmagazine.com/how-to-win-a-turing-test-the-loebner-prize-3ac2752250f1 retrieved on 3/5/2022.  Retrieved from https://www.helloworldalbum.net/ on 05/05/2022  Retrieved from https://www.theguardian.com/technology/2016/jun/10/artificial-intelligence-screenplay-sunspring-silicon-valley-thomas-middleditch-ai on 05/05/2022 Available at: https://youtu.be/IuygOYZ1Ngo  The names of the 9 muses were: Calliope, Clio, Erato, Euterpe, Melpomene, Polymnia, Thalia, Terpsichore and Urania.  https://knowlab.in/artificial-intelligence-mankinds-last-invention/  More information available at: https://artificialinventor.com/dabus/ Article 9.3 of the Copyright, Design and Patents Act of 1988.  ProPublica, “Machine bias: There’s software used across the country to predict future criminals. And it’s biased against blacks”, available at: https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.  The need to avoid unfair bias has been expressed by an independent high-level expert group on artificial intelligence set by the European Commission in 2018. Available at: https://www.aepd.es/sites/default/files/2019-12/ai-definition.pdf  Amunátegui Carlos Perelló. “Sesgo e inferencia en redes neuronales ante el derecho”. 2020, page 32. Asimov, I. The Bicentennial Man. 1976, Ballantine Books. The term was coined by Manfred E. Clynes and Nathan S. Kline in 1960.  This was stated by Francis Gurry, Director General of WIPO.