Recently I had the privilege of delivering a presentation/webinar to IPSANZ on the topic of 'The Rise of the Creative Machines'. This article is a condensed version of that presentation.
Developments in Artificial Intelligence
Up until recently, the idea of a “creative machine” was pure science fiction, but the last few years have seen developments in the Artificial Intelligence (AI) field that have made such machines a reality. AIs can now create original images with no human input, or write genuinely moving poetry. News outlets like Forbes use AI to generate financial news stories, which are indistinguishable from those written by a human. Had these works been created by a human, they would attract copyright protection, but as they are the work of AI, it is unclear if copyright can, or should, protect them.
Enter, Machine Learning
Although the “AI” label has been attached to a number of different technologies over the years, the AIs responsible for creative works are almost invariably built on some sort of Machine Learning (ML). Put simply, ML feeding an AI massive amounts of data and then training it, rather than programming it, to do a task. In the case of creative machines, this tends to be thousands of creative works (such as poetry, prose, images, screen plays), from which the machine will determine the works’ inherent characteristics, then construct its own versions. The most advanced ML machines use a technique called Deep Learning (DL). A DL system starts with the construction of an “artificial neural network” which is essentially a collection of algorithms modelled after a human brain. The network then uses vast amounts of data to train itself. The AIs that show the most “creativity” are a type of DL system called a GAN, or Generative Adversarial Network. It is these that produce the most human-like work.
Copyright protects creative works, assigning moral and economic rights to the work’s author. The rights assigned to the author are closely linked to the reasons for copyright’s existence. The first reason is economic, and serves to incentivise the creation of certain works by granting a monopoly over the economic benefits of those works to the copyright holder (be that the author, or some other party). This view has seen copyright described as “an incentive that, properly calibrated, can positively affect the creation and availability of knowledge”. Under this view, the purpose of copyright is to provide a mechanism to reward the creators of works that are beneficial to humanity. The second reason is the protection of moral rights, which consist of the right of an author to be recognised as such, their right to object to derogatory treatment of a work, and the right to object to false attribution of a work.
These reasons show that copyright exists to protect things that matter deeply to humans: their culture, their honour and reputation, and their ability to generate the resources they need to survive through their labour. Given that none of those needs or concepts apply to machines, justifying copyright protection for machine-generated works is problematic.
Copyright for AI Generated Work?
The first question, “can copyright subsist in AI generated works?” is not as straight forward as it sounds. Under New Zealand’s Copyright Act 1994 (CA) the answer appears to be “yes”. Section 5(2)(a) specifically states that in the cases of “computer generated works” the person who makes the arrangements for the work’s creation shall be considered the author. However, when the computer involved is an advanced AI, determining who this person is becomes very difficult. Is it the developers, or the company that employs them, or the customer using the machine? The question becomes even more difficult once Deep Learning (DL) technology is considered. An AI built on DL techniques (such as the creative GANs) has, for the most part, taught itself, so finding a person responsible for the creative output of an AI is exceedingly difficult. When you dig deeper into the way these machines work, its not unreasonable to conclude that the AI itself is the author. If this is the case, we are well outside anything the Copyright Act anticipates.
AI and the Law
Given that current legislation is not set up to deal with AI, we need to look at the common-law, which suggests that copyright will not subsist in AI generated works. The issue of non-human creators has recently been dealt with in a US case. In Naruto et al v. David Slater, more commonly known as the “monkey selfie case”, the Court determined that, because he is an animal, Naruto (the photogenic crested macaque who took the selfies) lacked standing, as an animal is “not an author within the meaning of the Copyright Act”. For our purposes, Naruto stands for the premise that a non-human entity cannot be considered an author under existing laws, therefore works created by non-humans do not attract copyright.
Having established that currently copyright probably does not apply to AI-generated works, the question now becomes “should it?”. Looking at the purpose of copyright as it currently exists then the answer is probably “no”. Quite apart from the fact that neither of the reasons for copyright’s existence (discussed above) can possibly apply to a machine, if we were to say that an AI can be considered an author for the purposes of the Copyright Act, what we are in fact saying is that a machine has rights. The flipside of rights is always the associated obligations, however a machine will have no way to meet them.