CITMA Conference: AI ownership will divide courts globally, say lawyers
The question of who owns works generated by artificial intelligence (AI) is set to divide the courts worldwide but is unlikely to lead to AI being granted a “legal personality”, leading lawyers have said.
During an AI panel, held at the Annual Meeting of the Chartered Institute of Trademark Attorneys on Friday 6 November, IP lawyers including Lee Curtis, partner at HGF, Birgit Clark, Lead Knowledge Lawyer (IP and Technology), Baker McKenzie, Nick Phillips, partner at Edwin Coe and Stephanie Wickenden, barrister at Serle Court, explored the role of AI and its future effects on IP.
Phillips explained that with the introduction of the Copyright Designs and Patents Act 1988, the UK was “in the vanguard of protecting copyright computer generated works” and creative innovation. He pointed out that unlike most other countries, the UK protects computer-generated works which do not have a human creator, because the law designates the author of such a work as “the person by whom the arrangements necessary for the creation of the work are undertaken”. This provision, he explained, provides protection for up to 50 years from the date the work is made.
“The UK is one of a small minority of countries that have answered ‘yes, we have a copyright law that protects works generated by an AI,’” he said.
He added, however, that this stance was viewed as “a fairly controversial” approach outside of the UK, explaining that while it was expected that other countries would follow suit, few other than the UK provide similar protection for computer-generated works. “Many countries believe that for there to be copyright, there must be a human author, which fundamentally is the reason why many countries have not followed the UK,” he said.
However, he added that he was in favour of the UK’s approach. “If you view the rationale for copyright protection, which is to incentivise or reward creativity, I think it follows that the creator of the AI system who creates copyrighted works should be rewarded in the same way as a human author. But that’s not necessarily the majority view.”
The real difficulty, he said, is identifying the person who was ultimately responsible for the creation. “In AI terms, it could be a number of people. Was it the person who created the software? Or was it the person responsible for teaching the machine? It can be difficult to identify that person,” he said.
He explained that as AI systems get more sophisticated, the onus will be on the courts worldwide to determine ownership by adopting an approach that best helps in achieving a satisfactory answer. He pointed to a provision of US copyright law, “works made for hire.” according to which an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organisation, or an individual.
“If the courts decide they don’t want to use the UK system, they could look at the US ‘work for hires’ approach, but then they could run into similar problems in terms of difficulties in identifying an author,” he said.
He added that while the UK law system “was not a bad one” more case law was required “to shore it up and iron out some wrinkles”.
“There is no perfect solution unless we go into the very murky depths of giving the AI its own legal personality. But I don’t think the world is ready for that,” he said.
The panel explored how advances in AI had led to interesting questions around whether an AI was capable of infringement. “There is a question around who or what is infringing”, said Curtis. He added that while it was not beyond the realms of possibility to grant an AI a legal personality, this would create many complex and divisive issues.
“If you give it liability, you have to provide rights, so are you going to give AI rights? That’s a major problem. I don’t think that it will happen anytime soon.”
Wickenden agreed that the issue of joint authorship in terms of AI would become much more common in the courts, but also much more complicated.
She pointed to Next Rembrandt, a 3D printed painting project, made solely from the data of Rembrandt's body of work, as an example of a project that could create numerous questions around exactly who owned the copyright.
“Just look at the number of people who were involved in creating that work,” she said. “Unless there is somebody who anticipated this issue and carefully dealt with it in terms of employment contracts, there is potentially a complex joint authorship situation when you consider who made the arrangements and who made the project,” she said.
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