Aside from issues of citizenship, in the realm of IP one of the questions that have been asked with increasing frequency is whether and to what extent AI has the potential to replace humans, including in the creative fields.
As AI machines become increasingly autonomous, can they be regarded as 'authors' in a copyright sense and, if so, can the works they create be eligible for copyright protection? If the answer was again in the affirmative, who would own the copyright in such works?
Recent developments stand as a demonstration that answering these questions may not be something for an indefinite future.
For instance, readers with an interest in music might have had the opportunity to listen to the recently released single Hello Shadow, which is the first song extracted from the the first multi-artist music album composed with AI.
This album was curated by Benoit Carré, head of SKYGGE, who collaborated with several musicians and performers, including - in the case of Hello Shadow - Stromae and Kiesza.
The SKYGGE project started as a research project (the Flow-Machines project, conducted at Sony Computer Science Laboratories and University Paris 6) in which scientists were looking for algorithms to capture and reproduce musical “style” [an example being Daddy’s car, a song in the style of the Beatles]. However, the novelty and huge potential of the approach triggered the attention of musicians who joined the team.
It is clear that SKYGGE produces music thanks to AI, but there is a substantial human input. But as things have the potential to develop in the sense that AI will be able to create music entirely on its own, without any human input, will the resulting songs be protected by copyright?
The notion of 'authorship'
As I discuss more at length in this recent short article for the Journal of Intellectual Property Law & Practice here, at the international level there is no definition of who is to be regarded as an 'author' in a copyright sense. However, legal scholarship seems oriented in the sense of concluding that, from its text and historical context, under the Berne Convention only natural persons who created the work can be regarded as authors.
In any case, although generally speaking it seems possible “to agree that an author is a human being who exercises subjective judgment in composing the work and who controls its execution”, this does not mean that at the national level there are not situations in which also works created by non-human authors can qualify for protection, or courts have not addressed issues of non-human authorship.
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The CJEU refined further its construction of the standard of protection in its subsequent decision in Painer, C-145/10. In discussing originality for photographs and, in particular, portrait photographs, the court held that what is required is for the author “to express his creative abilities in the production of the work by making free and creative choices”, so that he “can stamp the work created with his ‘personal touch’”.
It is therefore apparent that the EU standard of originality, as also acknowledged by Advocate General Mengozzi in his Opinion in Football Dataco, C-604/10 entails a “‘creative’ aspect, and it is not sufficient that the creation of [the work] required labour and skill.”
Can an AI machine's creation fulfill the requirement of originality as intended by the CJEU?
arguably one of the first AI
One may wonder how a non-human author can exercise such rights. The question becomes even more complex, if not impossible to solve, if one considers that the CJEU has clarified that the language of that directive imposes that authors are considered as the exclusive first owners of economic rights [Reprobel; Soulier].
Now such issues might re-surface with increasing frequency and relevance also in the area of copyright and, in doing so, test the scope of protection. This will require revisiting concepts that traditionally have been considered basic.
However, similarly to the case of originality, it has become clear that what ‘basic’ refers to may not be entirely straightforward.