Welcome to the Future – AI Created Artworks – Now What About Copyright Ownership?

Welcome to the future, where the lines between the real and the virtual world are starting to blur. But that cannot impact the art world right? After all, creativity is one of the traits that is distinguishing humans from machines. Unsurprisingly, opinions tend to differ regarding this issue. It must be acknowledged, that both the tech world as well as the art world share the notion that boundaries ought to be pushed, while innovation and creativity are regarded as the main pillars of a well-functioning and evolving society. It should be pointed out, that Intellectual Property law is the legal field that aims at fostering innovation and creativity inside societies and it will be impacted greatly by these new developments.


One of the latest developments in technology is the invention of Artificial Intelligence (AI). AI cannot be defined easily since there is generally a lack of consensus about its actual terminology. The term, as it seems, originates from Alan Turing around 1950, when he first articulated the idea of ""thinking machines" that could reason at the level of a human being".[1]Later, John MacCarthy was the one that coined the term "artificial intelligence" referring to "machines that could think autonomously".[2] Today it is thought that AI consists of three main components “intentionality, intelligence, and adaptability."[3]


Self Portrait as The Apostle Paul-Rembrandt,1661

You might wonder what exactly is the connection between art and AI? Despite what popular culture has taught us regarding the "cunning intentions" of the machines, some of them that take advantage of this kind of technology have shown a strange affinity for the arts. They are here to create artworks and make their own substantial contributions to the contemporary art scene. Take for example the relatively recent creation of the Next Rembrandt. The Next Rembrandt, is a piece of art created "by a computer that had analysed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn", which was presented in 2016 by certain museums and researchers in the Netherlands. This development highlights the groundbreaking change and impact that these technologies can have in the art world and consequently the legal world.


A novel dilemma has arisen as a consequence of these developments inside the legal world. Who should be deemed as the author of these artworks and consequently the potential copyright owner? As you might know, copyright law protects creations and secures that the authors of the relevant works receive a set of rights over their use. In the UK, according to Section 1(1) of the CDPA 1988 copyright can be viewed as a: "property right which subsists in accordance with this Part in the following descriptions of work (a)original literary, dramatic, musical or artistic works, (b)sound recordings, films (or broadcasts), and (c)the typographical arrangement of published editions." Thus, in the case of artworks created by AI logic dictates that there still needs to exist a copyright owner. However, the answer to the above dilemma is not easily identifiable.


Firstly, it must be pointed out that previously there has not been a legal issue regarding the "ownership of copyright in computer-generated works" since a computer program used in these instances was considered as "a tool that supported the creative process".[4] The key ownership issue stems from the fundamental principle existing in copyright law that "creative works qualify for copyright protection if they are original, with most definitions of originality requiring a human author."[5] However, the situation we are dealing with is peculiar for the simple reason that machines do not count as humans (yet?), at least as far as lawmakers are concerned in the present time. Moreover, it is evident that these programs can not be viewed any longer as a "tool" since they are responsible for the choices that take place during "the creative process without human intervention".[6]


Presently, it is argued that the puzzle of copyright ownership in cases where the human contribution is absent or very little, can be solved by lawmakers in case one of the two paths suggested below are followed.[7] The first is to completely shut down the possibility of granting these machines copyright protection for their creations.[8] The second possible idea that could potentially align with the fundamental aims of copyright law is to regard as authors of these art pieces the creators of these programs that machines use in order to create art.[9] It is important to note that although the human contribution in creating an AI artwork might be minimal usually it is still present in some form. It has been argued that the "AI-artists" possess a certain amount of originality, which becomes apparent when choosing the “underlying works that form a basis for the AI-created work".[10] However, it has been pointed out that in cases of AI artworks, where the contribution is minimal from the part of the user the copyright should not be given to the user but instead, it could be given to the programmer.[11]


Regarding the UK legal system, it is noteworthy that Section 178 of the CDPA 1988 "protects computer-generated works which do not have a human creator", while Section 9(3) of the CDPA 1988 mentions that the author of these works is "the person by whom the arrangements necessary for the creation of the work are undertaken”. This means that the UK could be regarded as a pioneer when it comes to solving this matter since it could potentially provide copyright protection to AI-generated artworks under the above provisions.


This situation has brought us face to face with many difficult questions and it will continue to do so in the future since technology never stops evolving. Arguably, a key in this rather difficult situation lies in addressing and solving the originality issue presented in relation to these artworks. A potential solution is thought to be the "reassessment of the meaning of originality" in copyright law in order to catch up with the existing reality.[12] An example of copyright tests in order to examine if the originality threshold has been reached are the one of "the author's own intellectual creation" and that of the author's "labour, skill and judgement". It is suggested that a concrete and possibly universal definition of the originality term could contribute to the avoidance of unnecessary confusion in the future and lead to the fast and relatively easy handling of these legal matters. So, the future is here and it seems to be a truly exciting time for the world of copyright law. The question is whether copyright law is ready to address it.


[1] Darrell M. West, ‘What is Artificial Intelligence’ (Brookings 4 October 2018) [2] ibid. [3] ibid. [4] Andres Guadamuz, ‘Artificial Intelligence and Copyright’ (WIPO Magazine 2017) [5] ibid. [6] Andres Guadamuz, ‘Artificial Intelligence and Copyright’ (WIPO Magazine 2017) [7] ibid. [8] ibid. [9] ibid. [10] Sarah Ligon Pattishall, Mcauliffe, Newbury, Hilliard and Geraldson LLP, ‘AI Can Create Art but Can it Own Copyright in It or Infringe?’ (LexisNexis, The Practical Guidance Journal 28 February 2019) [11] Andres Guadamuz, ‘Artificial Intelligence and Copyright’ (WIPO Magazine 2017) [12] Shlomit Yanisky-Ravid, Luis Antonio Velez-Hernandez, ‘Copyrightability of Artworks Produced by Creative Robots and Originality: The Formality-Objective Model’ (2018) 19(1) Minnesota Journal of Law, Science and Technology, 2


BIBLIOGRAPHY


Primary sources

Infopaq International A/S v Danske Dagblades Forening(ECJ case C5/2008)

University of London Press Ltd v London Tutorial Press Ltd [1916] 2 Ch 601 [608]

Copyright, Designs and Patents Act 1988


Secondary Sources

Guadamuz A., ‘Artificial Intelligence and Copyright’ (WIPO Magazine 2017)

Intellectual Property Office, 'Artificial Intelligence Call for Views: Copyright and Related Rights' (7 September 2020)

Ligon Pattishall S., Mcauliffe, Newbury, Hilliard and Geraldson LLP, ‘AI Can Create Art But Can it Own Copyright in It or Infringe?’ (LexisNexis, The Practical Guidance Journal 28 February 2019)

West D. M., ‘What is Artificial Intelligence’ (Brookings 4 October 2018) <>

Yanisky-Ravid S., Velez-Hernandez L.A., ‘Copyrightability of Artworks Produced by Creative Robots and Originality: The Formality-Objective Model’ (2018) 19(1) Minnesota Journal of Law, Science and Technology, 2


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