Today, artificial intelligence (AI) has significant impacts on business, medical industry, creative industry, the judicial system, governance and many other fields in society. Among these, the progress of artificial intelligence and its application in the field of creation leads people to rethink the role of machines in the creative process. This raises questions related to copyright law like ‘What are AI-generated works?’ or ‘Can AI-generated works be protected by copyright law?”. This article takes a closer look at these questions.
An article by Ying Ye (Durham)
What are AI-generated works?
In daily life, computers can help humans to achieve artistic and literary creations. For instance, journalists may use word processing software to write news articles and publish them online. Poster designers can create new works through graphic tables. Composers may adjust their music through a computer. In this circumstance, the computer is regarded as a tool which plays the role of “assistant” for human authors. And works created with the aid of computers are defined as ‘computer-assisted works’ (CAWs).
However, with the development of advanced technologies, computers can generate artistic and literary works more autonomously, which requires less human’s intellectual intervention in the creative process. Works that are created by computer program without the human author’s intellectual intervention are referred to ‘computer-generated works’（CGWs）. In recent years, some research teams and big technology companies have kept on doing exploration in this field. For example, a team in the Netherlands lead a program named ‘the next Rembrandt’. It generated a new artwork of Rembrandt’s style with a facial recognition algorithm. Some companies like Associated Press, Forbes, New York Times and Tencent are using AI to generate news articles. Enterprise teams like Amper Score also provide more rapid production of music to fit in the targeted market with AI technology. These outputs of AI technology belong to computer-generated works.
Why talk about copyright issues? – The example of Xiaoice
Artificial intelligence can generate new “works”, which is different from the past situation that “works” can only be created by humans. In the case of AI“poet” Xiaoice (小冰)，the computer can “write” a modern poem through image information stimulation. Before starting the process of work production, Xiaoice have been trained by a large amount of data and developed its “writing skills”.(Xiaoice has learned thousands of works from 519 Chinese modern poets) After this training, Xiaoice can start a generation of new works. Xiaoice will receive a designated image and the first step is to match some words that can describe it. In the next step, it will find corresponding words and phrases frequently used as keywords in poems. Then, each sentence will be constructed by the analyzed keywords. Meanwhile, the whole structure of the poem will also be considered. Finally, contents will be generated and a new poem is produced. During this process, some critical decisions for the work creation, like the selection of theme and key words, are made solely by the computer. Human beings only play a role to give instructions.
The rise of computer “creators” raises concerns of copyright issues of their “works”. In previous times, the creation of works was monopolized by humans and the computer was just an “assistant”. Whitford J （Express Newspapers plc v Liverpool Daily Post & Echo plc FSR 306）even described that a “computer is no more than the tool”. However, today AI technology helps computers to generate artistic and literary works more autonomously and many questions come along. Are AI-generated works copyirghtable? Who is the author? And who can own the copyright? This uncertainty of legal status may affect both the development of related industries and the public use of AI-generated works. In this circumstance, the balance of the incentive of AI applications in creative industries and fair sharing of the fruits of AI creations needs to be considered. Therefore, copyright issues of AI-generated works are important and need to be discussed.
The implementation of Chinese copyright law
According to WIPO technology trends report 2019- Artificial Intelligence, China is very active in the field of artificial intelligence. Instances like Xiaoice (小冰), Lu Ban（鹿班），Dao Zi(道子) show that AI has widely applied in the creative field. However, some disputes have also emerged in this field. For example concerning Lu Ban (鹿班), Alibaba’s poster design application. As an “AI designer”, its logo generated by itself is questioned by netizens that it copies the work of Unipen (a human designer). In this situation, people expect that Chinese copyright law can respond to the copyright issues, which is very important to the future development of AI-generated works.
In fact, there is no direct provision about computer-generated works in Chinese copyright law. Looking into the existing provisions, Chinese copyright law 2010, Article 3 regulates forms of the “work”. And in the Regulations for the Implementation of the Copyright Law 2013, Article 2 defines the work in a copyright sense and emphasizes“original intellectual creations”. However, whether AI-generated works are original still remains to be discussed. Relevant literatures have controversial perspectives on copyright issues of AI-generated works. Some argue that AI-generated works should be protected by the current Chinese legal system, because they are hard to be distinguished from human works, and “copyright law cannot abandon the infringement and transfer doctrine which all are based on traditional subject matter and ownership”. So, AI-generated works objectively achieve the minimum originality standards. While the opponents believe that AI-generated works are the result of algorithms, which cannot reflect the author’s unique personality, and it should not be warranted copyright protection. To sum up, the legal status of AI-generated works is still under discussion in China.
Legal practice in other countries
If we look at legal practice in other countries, we will find that some countries have given their protection to computer-generated works by clear provisions. The UK copyright law, the Copyright, Designs and Patents Act 1988, as an example, provides provisions of computer-generated works, which includes the definition, duration, authorship and the moral rights of computer-generated works. The section 178 gives the definition of “computer-generated work” as “‘computer-generated’, in relation to a work, means that the work is generated by computer in circumstance such that there is no human author of the work”. Indian and Irish copyright law follow the UK’s step on this issue. However, in most European countries, very few direct regulations of copyright are about computer-generated works. Moreover, EU has a series of cases which set the criteria of originality standards that copyright only applies to original works with the author’s own intellectual creation. In Australia, both IceTV Pty Limited v Nine Network Australia Pty Limited (2009) and Acohs Pty Ltd v Ucorp Pty Ltd (2012) indicate that computer-generated works are not to be protected, for they are non-human produced works.
AI-generated works are constantly emerging in society. It is thus necessary to reflect on some fundamental issues of copyright law. As for China, there is no direct provision about computer-generated works. And under the current Chinese copyright legal system, the legal status of AI-generated works is still under discussion. There has been some legal practice of copyright protection of computer-generated works in other countries and regions. They can serve as an inspiration for China.
Ying Ye is a Ph.D candidate at Durham Law school, UK, with a research focus on Artificial Intelligence and Copyright system.
Published under licence CC BY-NC-ND.