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Kristina Mulina

Assistant to Patent Attorney

31 May 2021

Works Generated by Artificial Intelligence: Claiming Copyright Protection

This century has been marked by the development of artificial intelligence (AI). A few decades ago, mankind could not imagine that in the near future AI will greatly simplify our lives. However, it is constantly improving, and it is not only a tool to achieve a programmed result, but also an independent decision-making instrument of a creative nature. For example, musical works, works of literature, fine art, architecture, as well as many other things in the scientific and technical sphere are created through AI. And at this stage, the question arises about the establishment and provision of legal protection of created objects: will the AI be the author of generated works, i.e., can such works be recognized as copyright?

To begin with, let’s see how the Russian legislation interprets the right of authorship. In accordance with Article 1257 of the Civil Code of the Russian Federation: “The author of a scientific, literary or artistic work is the citizen by whose creative work it has been created”. This approach regarding the right of authorship is interpreted not only in the Russian legislation, but also in many countries around the world. Based on this, we can conclude that the AI cannot be recognized as an author, since only a natural person can be an author, and, accordingly, those results of intellectual activity, which are created by a person and are the result of his or her creative work, will be subject to protection.

In this case, it would be necessary to assign the rights to the result of the AI creation to a specific person or group of people who participated in the creation of the AI algorithm. But if the AI independently carried out the creation of a new work, then the possibility to recognize the developer of the AI, who gives certain commands to perform the task, as the author decreases and the question arises who in this case will be recognized as the author or at all the works generated by the AI will be in the public domain and, therefore, can be used by everyone.

In such a situation, the right of authorship will be determined by the courts in specific legal disputes. Thereby, based on the experience of court practice, it becomes clear that in defining the authorship of works created directly not by a person, the judicial grounds are rather aspirational and the decision on them can be delayed for indefinite period of time.

For example, there is a popular case in which the object of a similar and scandalous trial was content created by an animal rather than a person. In 2011, British photographer David Slater lost his camera in Indonesia, and it was found by a macaque named Naruto. This monkey took several hundred pictures, among which there were very successful photos. After the camera was returned to its owner, Slater demanded recognition of his right to the pictures taken by the monkey. The trial lasted several years. The monkey’s defenders argued that he should assert copyright in the photos because Naruto was aware of everything it was doing, including seeing its reflection in the camera lens, understanding the relationship between pressing the shutter button and changing the reflection, and making different facial expressions.

In the end, in 2017, the court ruled that the animal could not be the author of the work. All of the photos taken by the monkey, many of which very funny, were found to be in the public domain.  Based on this case, we can conclude that the rights should belong to the one who controls the result and performs actions aimed at achieving that result. But what about the establishment of the right of authorship in the case when the AI independently generated some work without the participation of the person who contributed to the result of the work? To answer this question, I will give an example below which has become a landmark event in the world jurisprudence.

In 2018, a conflict arose between Chinese companies Tencent and Shanghai Yingxun Technology (hereinafter the Company), which was caused by the latter company copying a financial report on its website written by Dreamwriter robot. This robot was created by the Chinese innovation holding company Tencent in 2015 to write analytical financial articles using financial market data and special algorithms to analyze them. And once written, these articles were posted on the company’s website marked “automatically written by Tencent Robot Dreamwriter”.

Due to the fact that the text was generated by AI, the Company and Shanghai Yingxun Technology considered it possible to copy it without permission, deciding that they did not violate copyrights, since the material compiled by AI has no author in the traditional sense of the word. In January 2020, the Shenzhen court ruled in favor of Tencent, stating that the way the material was presented in the article met the requirements of originality and novelty and could be classified as a copyrighted intellectual work.

Thus, this case was the first case in the world practice, as a result of which the court recognized that the AI has a copyright on the work generated by it, disagreeing with the defendant’s arguments that it is in the public domain and can be freely used. Shanghai Yingxun Technology was ordered to pay compensation of 1,500 yuan ($217).

The ruling by a Chinese court has become a leading case provoking a new wave of discussion regarding the ownership of copyrights on works generated by AI. This means that the existing copyright system may be changed due to the influence of AI.

So, for example, amendments may be made to Russian law to fix the right to intellectual property generated by AI, not for itself, but for its developer. The corresponding document was prepared by United Russia deputy Alexei Kobilev and sent for approval to the Ministry of Economy of Russia as early as of October 21, 2020. The explanatory note to Kobilev’s bill states that gaps in the current legislation regarding the rights to the results of AI activities could lead to negative consequences. In particular, on this basis, there can be numerous disputes about ownership of the rights to a particular AI brainchild.

Thus, in current practice AI is just a tool in the hands of the creator. But to be fair, it should be noted that AI is constantly growing and developing, and this may lead, for example, to the creation of such AI, which will teach other computers to generate new works, and in this case, the situation with the recognition of copyrights may become more complicated.

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