Jurisdiction – USA
What is AI?
Artificial Intelligence (AI) is intelligence exhibited by machines which allows them to ‘think’ and perform cognitive functions like humans. Machines use this ability to learn, solve problems and improve themselves with minimal human intervention. Popular examples of AI are self-driving cars, Amazon Echo and AlphaGo.
Based on their sophistication and capabilities, AI applications can be classified into various levels. These levels, in decreasing order of human dependence, are –
- Level A – Lowest degree of sophistication; can only perform operations that they have been programmed for with no operational variation.
- Level B – Respond to users’ questions by retrieving data from external sources such as websites or applications resident on other devices.
- Level C – Can make autonomous decisions such as deciding what data to retrieve from which source and the manner of presenting it in response to a query.
- Level D – Most sophisticated; can work without human interference. Capable of reprogramming itself and using data in any manner it wants, making its functioning identical to human behaviour.
Copyright of poems authored by Level A and Level B AI would vest with the creator of the AI because the creativity stems from the creator while the AI merely performs a mechanical function. This post deals with Level C and Level D AI which is capable of expressing its own creativity.
Copyright in a poem vests in its author. According to Burrow-Giles v. Sarony, a landmark case dealing with authorship in a photograph, the court held that an author is one to whom the work owes it origin. The author should be the cause for the creation of the work. The court held that even though the photograph was taken by a camera, the authorship vested with the photographer because the photograph was his intellectual conception. The photographer had used his creativity in deciding the pose, costume and arrangements; therefore he had copyright in it.
For copyright to exist in a work, it must be original and creative (Baltimore Orioles v. MLBPA). Originality means that the work should be independently created by the author and creativity means that the work must embody some amount of intellectual labour. The question, therefore, is whether AI is capable of exhibiting creativity – a traditionally human skill – sufficient to author a poem independent of human involvement.
Creativity by AI
In a 1998 article, Selmer Bringsjord explains that there are two opposing views about AI. Some computer scientists believe in “Strong” AI, i.e. AI that can replicate a human mind and have feelings and emotions similar to humans. Such an AI would also have its own consciousness. On the other hand, sceptics believe in a “Weak” AI which may exhibit some human behaviour but will never have all the characteristics of a human brain.
Traditionally, it has been believed that computers cannot create anything. Nothing can originate from computers – they can only execute those orders that they have been programmed for. With the advent of intelligent and creative AI, however, this perception is being challenged.
A patent for the Cybernetic Poet has been granted to Raymond Kurzweil. The Poet is a poetry-writing software that reads poems, generates a language model imitating (but not plagiarizing) the style of the poems and writes original poems in that style. The following is an example of a haiku written by the Poet –
The stifling stuffy
where I cannot be real.
Similarly, Selmer Bringsjord and David Ferrucci created a story-telling AI named Brutus which was capable of writing short stories on the theme of betrayal (hence the name).
The first question is whether these poems and stories authored by AI after studying pre-existing works can be called ‘creative’ for the purposes of copyright. For copyright, only a modicum of creativity is necessary in the work – a substantial amount of creativity is not required (Feist Publications v. Rural Telephone). Even though the works authored by the Cybernetic Poet and Brutus are created in the style of other works, they demonstrate adequate creativity to meet this threshold. Therefore original poems and stories authored by AI are creative enough to have copyright in them.
The question that follows is who owns this copyright. While the programmer of the AI owns copyright in the code of the program, it cannot be said that the programmer also owns copyright in the works created by the AI. These works are created by the AI through its own originality and creativity. For instance, the creativity in the haiku written by the Cybernetic Poet originated from the AI itself and not the creator of the Poet. The author of the work is the AI and the not the programmer – thus copyright cannot vest with the latter.
In certain countries such as the UK and New Zealand, copyright in works authored by AI is given to the programmer through legal fiction. In these countries ‘computer-generated’ works are defined as words “generated by a computer in circumstances such that there is no human author.” These legislations further state that the author of such a computer-generated work would be the person who made the necessary arrangements for the creation of the work i.e. the programmer. In these countries, the programmer who created the AI that wrote the poem would own copyright in the poem.
Other countries such as India, US and Australia do not have such provisions. This means that no legal fiction has been created which deems the programmer as the author of an AI-created work. In a legal vacuum, it can be argued that there would be no copyright in works authored by AI in these countries. As a result, an AI-authored poem would fall in the public domain to be freely utilised by anyone.
It is important for these countries to amend their copyright legislations so that this issue can be resolved effectively.
Featured image from here.
This article by Annemarie Bridy explains possible solutions to problem of AI-copyright ownership.
Similarly, this post also explains the issue.