21st Century Copyright Law 101: Copyright and AI-Generated Artwork
Thanks to the booming internet era and the rapid development of digital technology, literary and artistic works are known worldwide. At the same time, creative works increase in terms of quantity and quality, raising concerns about copyright protection worldwide. While applicable copyright laws are strictly governed by national legislation and international treaties, many questions still arise about protecting the works, especially on digital platforms. Therefore, the 21st Century Copyright Law 101 series aims to summarise some of the introductory provisions of international copyright law and then analyse specific aspects of protecting works under copyright law, thus trying to answer about copyright protection in both traditional and digital markets.
This series is divided into the following chapters:
21st Century Copyright Law 101: Works are Protected under Copyright Law
21st Century Copyright Law 101: Copyright and AI-Generated Artwork
21st Century Copyright Law 101: How to Protect Works under Copyright Law?
21st Century Copyright Law 101: Copyright Infringement in Cyberspace
21st Century Copyright Law 101: Compensation for Damage Caused by Copyright Infringement
21st Century Copyright Law 101: Responsibilities of Online-sharing Platform Operators in Copyright Protection
Along with the continuous development of technology, AI has reached a breakthrough when creating works of art with or without human support. Many AI art generator tools can create artwork, such as DALL-E, Fotor, Jasper Art, Deep Dream Generator, and RunwayML. Based on the way users of these tools can create works, AI-Generated works can be split into three kinds: (1) AI as a tool for humans to create artwork in a way that they can intervene throughout the process; (2) AI that independently creates artwork according to a certain description made by humans; and (3) AI that controls the whole process of creating a work where humans only need to press the start button. Therefore, when one can determine the role of AI in creating a work, the role of humans is determined as well. However, from the legal perspective, whether an AI-Generated artwork can have authorship or be recognised under copyright regulation or not is still debatable. These questions have arisen strongly since a portrait created by a machine learning algorithm named Edmond de Belamy was auctioned for an incredible price of $432,500 in 2018 (Christie's, 2018). The current chapter of the series intends to analyze the legal aspects and the practices that revolve around copyright law and AI-Generated artwork in certain countries.
The Framework of Copyright Law
According to Vietnam's Intellectual Property Law – amended in 2022 and programmed to take effect on January 1, 2023 – the author must be the person who directly creates the work. Moreover, the person who supports, comments, or provides material to create works is not considered neither the author nor co-author of the work (Article 12a of Vietnam's Intellectual Property Law, 2022). Meanwhile, the current Vietnamese IP Law also affirms that a work protected by copyright must be created by humans directly with his/her own intellectual labour, without copying from another person's work (Article 14.2 of Vietnamese IP Law, 2019). Therefore, Vietnamese law affirms that the human factor is a prerequisite for creating work.
In the German Copyright Act, the regulation of human creation is mentioned as follows: "Only the author's own intellectual creations constitute works within the meaning of this Act" (Section 2(2) of the German Copyright Act). In addition, Section 7 of the same Act provides a definition of 'author' stating "The author is the creator of the work". Thus the work is only copyrighted under the German Copyright Act when humans create it with the author's creativity. Interestingly, the German Copyright Act also states: "Where a computer program is created by an employee in the execution of his or her duties or following the instructions of his or her employer, the employer alone is entitled to exercise all economic rights in the computer program, unless otherwise agreed" (Section 69b of the German Copyright Act). Therefore, if one considers the AI system as an employee, the employer shall have the economic right to AI-Generated work. Thereby, the owner of the AI algorithm and the person who put the input into it shall benefit from the economic right under copyright law, but there is no specific rule for the author's moral right in this case.
At a European level, a final report of the European Commission was published in September 2020 about Trends and Developments in Artificial Intelligence - Challenges to the Intellectual Property Rights Framework. Accordingly, to answer the question of whether AI-assisted outputs can qualify as works protected under current EU Copyright Law, a four-step test is given: "Step 1 – Production in literary, scientific or artistic domain; Step 2 – Human intellectual effort; Step 3 – Originality/Creativity (creative choice); and Step 4 – Expression" (European Commission, 2020, p. 78). Consequently, an artwork can be protected under EU copyright law when it passes all four steps. When it comes to AI, when a machine or device is used to assist and support humans' creativity, it shall meet the human intellectual effort. Another crucial requirement is Step 3, since "The originality of an AI-assisted output [depends] on whether the production process involved creative choices by human authors that are reflected in the final result." Therefore, in the end, the opinion of the EU Commission is that AI-Generated work can be protected by EU Copyright Law when it is the result of both human intellectual effort and creative choices.
Moving to the US jurisdiction, there is no clear indication in the US Copyright Law about any 'human element' in recognising a copyrightable work. However, in practice, many case laws mention this situation. A first example could be the one of Naruto, a crested macaque in Indonesia, who took selfie photos with the camera of Mr Slater in 2011. When Mr Slater published the photos, and they became famous as "Monkey Selfies" in the US in 2014, the question arose of whether Naruto has authorship or not. The district court eventually decided that Naruto failed to establish statutory standing under the Copyright Act (Naruto v. Slater, 2018). Despite the absence of a clear indication in the US Copyright Law, this case law shows that a work is only protected by copyright when created by humans, and only humans have the right under copyright law. Consequently, the same applies to AI, since it cannot enjoy copyright for its work without the human element in creating a work. Recently, on February 14 2022, the US Copyright Office rejected registering an AI-Generated work named "A Recent Entrance to Paradise" at the request of Steven Thaler. He was seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine (US Copyright Office, 2022). Nevertheless, in the first request of Thaler, the US Copyright Office concluded that:
“…the work lacked the required human authorship necessary to sustain a claim in copyright because Thaler had provided no evidence on sufficient creative input or intervention by a human author in the Work.” (US Copyright Office, 2020).
In addition, regarding the second request, the US Copyright Office also rejected his argument about considering it as a work-for-hire because the “Creativity Machine” does not have legal contracts. Thus it cannot meet the requirement of a work-for-hire agreement (US Copyright Office, 2022).
The conditions for copyright protection of an AI-Generated work can be based on the level of human intervention and creativity under the assistance of AI. While humans hold a central role when creating AI-Generated works, AI algorithms only play the role of a support tool that can be copyright protected. The Court of Justice of the European Union (CJEU) mentioned this view on Infopaq International A/S v Danske Dagbaldes Forening case law, and stated that "...works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author's own intellectual creation" (Infopaq v. Danske, CJEU, 2009). On the other hand, AI-generated artworks where human interaction is minimal or non-existent cannot be protected by copyright law and authorship of such works cannot be attributed to the creator of the program (WIPO Magazine, 2017) because of a set of reasons that are going to be explained hereinafter.
Firstly, one must clarify what copyright law aims to protect, whether the intellectual labour of humans or the value of the work itself. If the primary purpose of copyright law is to protect the work, the author or how the work is created should be considered less essential. While there is no regulation about this scenario, where the value of the artwork is the criteria that makes it copyrightable, the case laws emphasize that copyright law protects "the fruits of intellectual labor" (Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991)). In fact, in practice, copyright law protects not only author's creativity but also the way he/she expresses the creative idea in a tangible form. Therefore, if the human element is lacking in the creation process, a work can not be copyrightable. One reason an author would want to copyright his/her work is to protect its value since the whole process of creation of an artwork is hard, therefore pricy. For instance, besides many other elements, the amount of time necessary to make the work or the material and support through which the artwork is expressed can influence the price of the final work. For this reason, one can highlight the evident difference in a work created by AI. Only the making of the AI system needs to be protected by Intellectual Property law. At the same time, giving copyright to AI could hinder human creativity.
Secondly, the lack of human elements and creativity: AI makes an artwork by mixing many works or data stored in its system. For example, Nguyen Hoang Bao Dai, a 3rd Machine Learning Google Developers Expert in Vietnam, created an algorithm to compose songs by AI. To do it, he had to input into the system 30.000 songs,"...5,000 of them were sourced from music forums while the remaining 25,000 songs were played by Bao Dai himself." (Nhan Dan, 2021). After that, he inputted a few melodies into the system, then requested the AI to create a song in one second in ten different versions. Such a song created by AI is not a creative song made thanks to intellectual labour. It is the mix and analysis of a few input melodies and 30.000 songs in store. Therefore, its system can be protected by copyright as a computer program, but the song created by the algorithm can not be copyrightable.
Finally, the idea behind the artwork: as already mentioned in chapter 2 of this 101 series about unprotected works, an idea is not protected by copyright. A work is protected only when expressed in a specific tangible form. Meanwhile, creating a work of art using an AI algorithm can be as simple as having anyone input their ideas into the algorithm. Then, based on the data already stored in the system, AI will analyse and give output according to the input ideas. Accordingly, the human plays the role of providing ideas, while the AI plays the role of the analyst and performs the shaping of the work. Therefore, a work of art is protected by copyright only when the author shapes his ideas in tangible form by himself.
As analysed above, the current legal system and practice do not recognise copyright protection for AI. AI-Generated work is only protected when it is created with sufficient human elements and solely the assistance of AI. These provisions are entirely suitable with the purpose and meaning of copyright law when it comes to protecting and promoting human creativity. Furthermore, the value of an artwork is currently considered to derive from human creativity and finally, the success of technology should only support people in the process of creating art, not replace their role.
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Figure 2. Robot Gods. Bryn G Jones. (2017, May 22). Kickstarter. [Digital Painting]. https://www.kickstarter.com/projects/bryngjones/the-robot-uprising
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Figure 4. A Recent Entrance to Paradise. Stephen Thaler's AI creation. Retrieved from Recker, J. (2022, March 24). U.S. Copyright Office Rules A.I. Art Can't Be Copyrighted. Smithsonian Magazine. [Digital Illustration]. https://www.smithsonianmag.com/smart-news/us-copyright-office-rules-ai-art-cant-be-copyrighted-180979808/
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