Copyright in the Era of Artificial Intelligence – Achieving an Equipoise between the Rights of the Author and the Genius of the Machine

In the age of Artificial intelligence („AI“), how do we balance the civilization need for innovation and progress with the protection of intellectual property („IP“) rights? How does the rise of AI complicate the traditional relationship between innovation and IP? Is there an inherent conflict between the concept of authorship in IP created by an AI and the legal framework of IP, or can they coexist peacefully? Can AI truly claim authorship of the IP it generates?

AI is defined broadly and has many different definitions adopted by different computer scientists. The general consensus is that it relates to the development of machines and computer systems capable of simulating and understanding human intelligence.

The rise of AI challenges traditional notions of authorship, blurring the line between human and machine creations. As such, balancing innovation and IP protection in the age of AI requires a re-evaluation of our legal frameworks. However, rather than a conflict, this presents an opportunity to rethink our approach to the IP and embrace new forms of creativity. Ultimately, the question is not whether AI can coexist with IP rights, but how we can ensure that these rights evolve to reflect the changing nature of innovation.

AI input refers to the data that is fed into an AI system for processing and analysis. AI output, on the other hand, refers to the new content or works that are generated by the AI system. Interesting copyright questions can arise from both. In this article, we will focus on the AI output in particular, and its recognition in the domestic and international legal framework, corroborated with a brief overview of a few cases.

Could AI in Serbia qualify as an author and hold copyright to works created by?

According to the Law on Copyright and Related Rights (“Copyright Law”) the holder of the copyright must be a natural person, with the sole exception of films where the holder of the copyright may also be a legal entity, i.e. the producer whose name is indicated in the film itself. An additional obstacle to recognize AI as an author is that, according to the Copyright Law, work must be a spiritual creation of the author, which is incompatible with the nature of AI.

The works eligible for copyright protection are specifically enumerated in the Copyright Law and the inventions in the field of technology, which is the domain of AI, are not eligible for copyright protection under the Copyright Law. Such inventions are instead protected under the legal provisions of patent rights.

Thus, this solution under the Copyright Law precludes the possibility of the AI to be recognized as an author.

Are regulations in other jurisdictions any different?

In countries like the United States, Japan, Norway, Australia, Brazil, South Africa currently there are no provisions which explicitly addresses whether the AI can be considered as a copyright holder.

For example, according to the Law No. 9.610 from 19 February 1998 (Brazil) Chapter II (11) the author of a literary, artistic or scientific work is the natural person who created it. The protection conferred on the author may be conferred on legal entities in the cases provided for in this law.

The United States Copyright Office released a Statement of policy on 16 March 2023 concerning the copyrighting of works made with AI. In the Copyright Office's view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act of 1976, excludes non-humans.

In jurisdictions such as the UK and New Zealand, the relevant legislation includes provisions for copyright ownership of works created by AI. The Copyright, Designs and Patents Act 1988 (United Kingdom) section 9(3) provides that, in the case of a work which is computer-generated, the author shall be the person ‘by whom the arrangements necessary for the creation of the work are undertaken’. If the AI has been trained or instructed by a person to carry out a certain task, it will be that person who will be taken to be the author of the work.

The European Union (“EU”) is perhaps the first major legislative body to spend extensive time evaluating the copyrightable nature of AI-generated works and has classified such works into four categories: (i) AI co-production, (ii) human selection of AI generated works, (iii) AI “brute force” works, and (iv) AI independently generated and selected works. In co-production cases, the EU has easily found that the human involved in co-production has a copyright in works created with the assistance of AI.

In these cases, the use of AI has been likened to the use of a word processor or photo editing program, that is, AI is simply being used as a tool to express human originality. Similarly, the EU believes that works created by AI, but selected by humans, meet the originality bar necessary for copyright protection. Their reasoning lies in the uniqueness of human discernment. For example, the program may be able to create music, but the same program could just as easily create screeching, unpalatable tones and requires a human influence to determine which works are pleasing to the ear and which are not. The remaining two categories seem to fail to meet the standards for copyright protection because EU concept of originality is actually influenced more heavily by the creative process than the final product.

A brief overview of a few cases / key details and outcomes

1. Tencent v. Yingxun - Dreamwriter is a set of intelligent writing assistance system based on data and algorithms independently developed by Tencent, a Chinese internet and technology company, in 2015. On 20 August 2018 the Tencent published an article titled “Afternoon Comment: Shanghai Stock Index Rose Slightly by 0.11% to 2671.93 points, led by communications operations, oil exploration and other sectors” on its website “Tencent Securities”.

The article stated in the end that “this article was automatically written by Tencent Robot Dreamwriter”. Afterward, the Yingxun, also Chinese technology company, published an article with the exact same title and content on its website “House of Online Loan”, and even with the same endnote.

The focus of the court case was whether the article produced by Dreamwriter was a “work” under the copyright law and whether the generation process was “creation”.

The Shenzhen Nanshan People’s Court (“Court”) held that the article was reflective of the selection, analysis and judgment of the stock market information and data as available at that time, and to that extent, it possessed a certain degree of ‘originality’. The Court also highlighted the detailed inputs of the Tencent’s creative team, based on which it concluded that if the software was to be the subject of creation, it would disregard the personalized arrangement and selection of the creative team. Accordingly, the Court declared the Tencent to be the author, based on an interpretation of Article 11 of the Chinese copyright law which grants authorship to the entity under whose supervision and direction the work is created.

In this respect, the Tencent case props up a fitting example of acknowledging human involvement in granting IP protection to AI-created works.

2. Zarya of the Dawn - The application to copyright Zarya of The Dawn, a comic book containing images created by the text-to-image tool Midjourney, was filed by Ms. Kris Kashtanova in September 2022.

The United States Copyright Office (“Copyright Office”) did not disclose that the illustrations were created using Midjourney and they approved the first-of-its-kind application leading many to believe that copyright could be assigned to human creators for AI-assisted works. Copyright Office cancelled the registration and replaced it with a new registration covering the original authorship that Ms. Kashtanova contributed to this work while they explicitly excluded “artwork generated by AI.”

The Copyright Office’s decision was based on Kashtanova’s alleged lack of “sufficient control over” the output created by Midjourney, which it found failed to qualify as human authorship.

What can we expect in the (near) future?

AI development is expected to continue at a rapid pace in the future and it is likely to produce (more than previous) increasingly sophisticated and original works that may challenge existing copyright laws.

It’s in nature of the law to struggle to keep up with the pace of the changes in society and it is inevitable that new solutions regarding this topic will be adopted (such as EU AI Act in the making) in order to keep up with the constantly evolving AI and its impact on the society, especially given the increasing number of people who are seeking for protection of their copyright (e.g. a group of Japanese illustrators and cartoonists are calling for legal measures to protect their copyrighted work from inappropriate use of AI.)

Although AI copyright in Serbia cannot be registered and it is difficult or not possible to register AI copyright in other jurisdictions, creative solutions are expected to be found, both in Serbia and in the rest of the world. It is uncertain in which direction will this creative process go, i.e. whether the human(s) will be considered as the holder of the copyright alone or jointly with AI (for the whole work), or the new solutions will exclude the AI part and leave it in the public domain given the uncertainty of authorship.

This process must be guided by careful consideration of all possibilities and balanced approach due to the complexity of the “AI copyright” problem. For example, if copyrights were given freely to works created by AI, then one programmer or a single programming team could easily amass a huge number of copyrights in a relatively short amount of time, which would seemingly devalue the creative work done by traditional copyright holders.

As these issues evolve over time, we will have to wait and see how the courts / different jurisdictions will react to a growing number of non-human content creators. The Next Rembrandt (3D printed painting made by AI) is already here, but the effects of granting this new kind of artist a copyright remain to be seen.

Either way, one thing is certain: AI Copyright storm is coming!

For more information about this topic, you may contact Milosevic Law Firm.

Advokatska kancelarija Milošević

Milosevic Law Firm

United States Copyright Office

Tencent

Yingxun

Kris Kashtanova

artificial intelligence

copyright in the era of artificial intelligence

copyright

copyright protection

intellectual property

AI input

AI output

Law on Copyright and Related Rights

Dreamwriter

Zarya of the Dawn

Midjourney