by: Geoffrey Imende & Esther Moraa
Introduction
The term “artificial intelligence” was first coined in 1956 during the Dartmouth Summer Research Project on Artificial Intelligence. During the conference, John McCarthy proposed the term “artificial intelligence” to describe the field of study focused on creating machines that can perform tasks that require human intelligence. Since then, artificial intelligence has evolved significantly, with advancements in technologies, algorithms, and applications across a wide range of industries and domains.
In this article, the term Artificial intelligence (AI) is used to refer to the simulation of human intelligence processes by machines, especially computer systems. These processes include learning (the acquisition of information and rules for using the information), reasoning (using rules to reach approximate or definite conclusions), and self-correction.
Today, AI has a wide range of uses. This includes machine learning, robotics, autonomous vehicles, targeted advertising and smart assistants like Siri and Alexa. In the creative landscape, the focus of this article, AI has been used to augment human creativity, streamline processes, and generate new forms of art. AI algorithms can generate art, music, and literature autonomously or in collaboration with human artists.
The transformation that AI has had on the creative landscape, has prompted discussions on the copyright eligibility of AI-generated works. This article explores the criteria for copyright eligibility, the implications of collaborative efforts between AI and humans, and the ethical considerations that underpin the copyrighting of AI-generated content.
Criteria for Copyright Eligibility
In Kenya, copyright eligibility is governed by section 22 of the Copyright Act (“the Act”). Under this section, eligibility for copyright protection is principally based on originality and creativity by the author of the work. The work must reflect the author’s independent intellectual creation, labor, skill and effort [Simon Otieno Omondi v Safaricom (K) Limited, Civil Case No. 499 of 2011 (eKLR)].
Under the Act, the author whose creativity is contemplated is a legal person (section 2 of the Act). By implication, this excludes AI systems (machines and computer systems) that have no legal personality.
Human authorship is required for copyright eligibility in most jurisdcitions. In Australia, the courts ruled in Acohs Pty Limited v Ucorp Pty Limited [2012] FCAFC 16 that a work created by a machine cannot be protected by copyright law because it was not produced by a human.
There is an interesting case of Naruto v. Slater [888 F.3d 418 (9th Cir. 2018)], where a macaque monkey named Naruto took selfies with a camera owned by David Slater, a photographer. Despite the viral nature of the photos, a U.S. court ruled that animals cannot hold copyright under U.S. law. The court underscored the role of human creativity and authorship in copyright, emphasizing that copyright protection aims to reward and incentivize human creative endeavors.
In collaborations between AI systems and humans, using copyrighted material in creating a work doesn’t automatically disqualify it from copyright protection. Section 22(3) of the Act deals with derivative works and incorporating existing material into new creations.
Creators and collaborators should be aware of intellectual property rights and copyright laws when working together to ensure proper protection for the resulting works and respect for rights related to any copyrighted material used.
Collaboration Between AI and Humans
The intersection between AI and human creativity raises complex questions about copyright ownership. Under the current state of copyright law, AI-generated works may not inherently qualify for copyright protection. This is due to the absence of human authorship. However, collaborative endeavors that involve human creative input in manipulating AI-generated content may result in copyright protection for the final output. The attribution of copyright typically aligns with the human creator who orchestrates the creative process. This underscores the significance of human agency in copyright law.
There are however ethical considerations to take into account when dealing with works created through collaboration between AI and human authors. One of the main ethical considerations is ensuring proper attribution and recognition for the contributions made by both AI and human authors. It is essential to acknowledge the creative input of human authors and the role of AI in the creation process. There should be transparency about the collaborative nature of the work by giving credit where it is due. This would help uphold the integrity and fairness of the creative process.
Further, there are ethical considerations when determining who owns the rights over works created through AI-human collaboration. There is need for agreements and legal frameworks that define the rights and responsibilities of all parties involved. This includes considerations of intellectual property rights and potential commercial interests.
Finally, ethical considerations related to bias and fairness must be taken into account when dealing with AI-human collaborative works. AI systems can inherit biases from the training data or algorithms they use. This may impact their creative outputs and decision-making processes. It is essential to identify and mitigate these biases in collaborative works to ensure that they are inclusive and diverse. Additionally, ensuring fairness in the distribution of benefits and opportunities resulting from these collaborative creations is important for fostering trust and equity among all collaborators.
A Case for Sui Generis Protection?
Since the current legal framework for copyright protection does not accommodate AI systems and the works they create, it is suggested that a sui generis legal framework be considered. Sui generis protection essentially means creating a unique legal framework to address a particular issue or situation not covered by the existing laws.
The goal of sui generis protection for AI-generated works is to strike a balance between incentivizing innovation in AI technology and ensuring fair and equitable treatment of creators. The creators here could be human or artificial entities. This area of law is still evolving. Policymakers around the world are actively engaging with stakeholders to develop appropriate legal frameworks that address the challenges and opportunities.
In the context of AI-generated works, sui generis protection could involve:
- Granting certain rights or legal status to AI systems as creators or owners of the works they produce.
- Establishing mechanisms for attributing authorship, determining ownership, and managing rights related to AI-generated content.
- Defining new categories of protection or modifying existing intellectual property laws to accommodate the unique characteristics of AI creations.
Some jurisdcitions are taking steps towards formulating a sui generis protection regime for AI generated works. For example, the European Commission has considered the possibility of granting certain rights to AI systems, such as the ability to be considered an “author” or a “maker” of a work. In the United Kingdom, the UK Intellectual Property Office has explored the possibility of granting AI systems a form of legal personality or ownership rights over the works they create. This approach aims to address the issue of attribution and ownership of copyright in AI-generated content.
Given the pace at which AI is evolving it is imperative that policymakers move with speed to bring AI and its creations within the ambit of regulations.
Conclusion
In conclusion, the evolving landscape of AI-generated works presents complex legal and ethical considerations regarding copyright ownership, attribution, and bias. The absence of human authorship in AI-generated works challenges current copyright legal frameworks. This calls for consideration to be given for sui generis legal protection tailored to address the unique nature of AI creations.
Collaborations between AI and human authors requires clear agreements to define rights and responsibilities. Such agreements must also ensure fair recognition and protection for all contributors. Policymakers and stakeholders should explore innovative solutions to bridge the gap between traditional copyright laws and the realities of AI innovation. Ultimately, it should be recalled that copyright protection is intended to foster creativity and innovation for the benefit of mankind. Therefore an adapted regulatory framework would unleash the benefits that underlie the age of AI.