Mariela Gutierrez Olivares is an IP Innovation Clinic Fellow and a 2L JD Candidate at Osgoode Hall Law School. This blog was prepared as a requirement for the Directed Reading: IP Innovation Program course, taught by Prof. Pina D’Agostino.
Artificial Intelligence (AI) technologies prevail all around us. Lawmakers are playing catch up by addressing what non-human authorship means for intellectual property as we know it.
Current AI and machine learning uses range from the curated selections in our favourite streaming services to the tools enhancing accessibility for people with disabilities. More controversial areas of AI include its use in autonomous vehicles and criminal sentencing.
Causing just as much controversy is whether AI can be an author. Can AI produce original works? If so, should those works be protected by copyright? And who would own that copyright?
Response from Copyright-granting bodies
These are questions that the Canadian Intellectual Property Office (CIPO) has been grappling with along with its counterparts in other jurisdictions (as others have previously written on here and here). CIPO has reached a conclusion after they recently issued copyright to a piece of art with an AI tool listed as a co-author (along with a human co-author).
By comparison, the US Copyright Office Review Board has decided that obtaining copyright protection requires human authorship, citing that copyright law only protects those works that “are founded in the creative powers of the mind.”
In the EU, a 2009 court ruling established a test that describes originality as requiring an “author’s own intellectual creation.” Though the EU Court of Justice has not yet had a test case to define authorship further, there is a strong indicator in a relevant policy of the need for a physical person.
The Growing Powers of AI
Despite the mixed reactions from the governing bodies that have the power to issue or deny copyright protection to AI-authored works, the fact is that AI tools that can generate original works have arrived. AI tools that create art (one has even sold for over $400K), write fiction and non-fiction works (including news articles), and scripts for film and television already exist. Countless more AI creations may be underway.
The Legal Conundrum
The legal debate of who or what gets to be an author (or an inventor) will continue. Copyright law has been around since the 18th century, and the evolution of technology has allowed humans to reach new heights of creativity for mass consumption.
Much of the debate centers on the notion that only works born from a human mind (where computers and software were used merely as tools) are worthy of copyright protection. Yet, proponents of AI authorship have drawn an analogy between the novelty of non-human authors and the once novel notion of corporate personhood. Some scholars and lawyers have suggested the introduction of an innovative set of rights to protect “authorless” AI-generated works.
Even if, eventually, AI-generated works are protected by copyright, uncertainty remains as to who will own the legal rights affiliated with that copyright. Traditionally, the first owner of a copyright is the author, and other entities may be secondary owners (i.e., an author’s employer or publisher). For now, at least in Canada, ownership will be assigned to the person who arranged to create the work and not the AI that created the work itself.
Implications for Businesses Leading the Way for AI-generated Creations
What does the current ambivalent landscape mean for those looking to protect works authored by AI? The debate is far from over, and we will undoubtedly continue to see jurisprudence about AI-generated works. Businesses that have developed AI tools capable of generating original works with a view to monetizing these creations are in legal limbo.
For now, it seems developers of AI tools have two options. The first and arguably safer route is to designate the person overseeing the AI technology as author or co-author of its creation. This could help more rapidly monetize AI-Generated works, as courts determine whether AI-generated work can be copyright-protected and how ownership will be assigned. The second and riskier option is to continue innovating and help spearhead the evolution of the law or else hold closely their potentially copyrightable assets. Should AI creations be deemed eligible for copyright protection in the future, those who have already developed AI technologies may be positioned to exploit intellectual assets early on.
