Having been involved with copyright law for more years than I care to remember, I have always been impressed by the ability of copyright to adapt to new technologies and provide the necessary level of protection to encourage creativity and entrepreneurship. However, I wonder if copyright has met its match in trying to accommodate artificial intelligence (AI). I have doubts as to whether copyright law (like patent law) can protect “non-human intelligence” within the confines of English law as it currently stands.
There are many definitions and descriptions of AI, but one good description is: “AI leverages computers and machines to mimic the problem solving and decision-making capabilities of the human mind” (IBM). In essence, it is the combination of computer power and algorithms with data sets to provide solutions to problems, make recommendations or reach conclusions. Many of us do not realise how pervasive AI is in our lives already, including speech recognition, facial recognition, chat bots and recommendation or comparison engines, to name but a few.
The computing device – comprising hardware and software – has to be put together, to a greater or lesser extent – through human intervention – the device cannot (for the time being at least) create itself. It is this that presents the fundamental problem for copyright law.
The relevant provisions of the Copyright Designs and Patents Act 1988 (“CDPA”) are:
S 11 (1): Subject to certain exceptions (which are not relevant here), “the author of a work is the first owner of any copyright in it”;
S 9 (1): The “author, in relation to a work, means the person who creates it.”
S 9 (3): “In the case of a literary, dramatic, musical or artistic work which is computer generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
S 178: “”Computer-generated”, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work.”
Many of us do not realise how pervasive AI is in our lives already.
With a good degree of foresight, the draftsman behind sections 178 and 9 (3) clearly anticipated that computers or other machines could be developed which, following the arrangement of the computer hardware and software by a human, would be able to create a work, without further human intervention. However, section 9 (3) brings us back to the point that the author has to be a “person” and so, under English law at least, an AI machine cannot be the author and so cannot own copyright in a work.
Without wishing to stray into the field of patents too much, we have had decisions both in the UK[1] and the EU regarding a device (DABUS) created by Dr Stephen Thaler. In patent applications, Dr Thaler claimed that the DABUS machine was the inventor. The UK and EU courts rejected this assertion, based on, in the UK, section 7 of the Patents Act 1977, which provides that a patent for an invention will be granted primarily to the inventor. An “inventor” is defined as the actual deviser of the invention. In the case it was said that devising an invention is a human activity and, since patents are property rights, which can only be held by a legal person, logically the “deviser” cannot be an AI machine. (Interestingly, other jurisdictions, such as Australia[2], have held, at a preliminary stage, that the DABUS machine can be treated as the inventor).
So, the current position under English copyright (and patent) law is that the work (or invention) must belong to a person and cannot belong to an AI machine.
Recognising the increasing role played by AI, the UK Intellectual Property Office (“IPO”) opened a consultation[3] touching on AI and IP rights, which closed on 30 November 2020. It asked the questions: “…what if the creators [of works or inventions] are not humans, but machines? Should intellectual property protect their creations? Who would own it? And what rules should apply when machines use the creations of others?”
The current position under English copyright (and patent) law is that the work (or invention) must belong to a person and cannot belong to an AI machine.
In its response[4], the Government referred to AI as “a transformative technology, which is already revolutionising many areas of our lives.” Focusing on that part of the consultation that dealt with copyright and AI, the Government is satisfied that human created but AI assisted works are adequately protected by the current copyright regime. However, it took the view that the CDPA definition of “computer generated works” is unclear and it may need to be re-considered, particularly where the AI machine creates a work without there being any human creative contribution. It will be taking forward the idea of changing the regime that applies to purely AI machine-created works, so they are protected by a new right with their “scope and duration reflecting investment in such works” (but being less than that provided by copyright protection).
In conclusion (to the extent that any conclusion is possible at this time), the fundamental problem remains that intellectual property rights are primarily intended to encourage creativity through financial reward – if you create a copyright work, such as a software program, you can license it and others cannot copy it during the life of the copyright. Similarly, if you obtain a patent, it gives you a monopoly in the claims of the invention, enabling you to commercialise it for the life of the patent. Subject to certain exceptions (such as some open source software or academic collaboration), copyright will belong to a person, who can license or assign rights in the work. Under English law, a machine cannot own a work and cannot commercialise it by granting a licence or assigning it.
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Although the Government’s objective is laudable in seeking to encourage technological advancement, I remain to be convinced that an effective system can be adopted to protect purely AI created works outside the copyright regime, because it raises more questions than it answers. Except for purely philanthropic purposes, why would anyone want to create a machine which in some way “owned” the works it created, when there would be no obvious way to commercialise them through licensing or assignment?
We come back to the basic point that a machine is not legally able to do these things and fundamentally intellectual property exists to encourage and protect human creativity. It will be interesting to see if and how the Government is able to shape the new right and presumably a registration system to enable third parties to exploit the rights created in the interests of technological advancement.
Peter James, Partner
First Floor, 7 Frascati Way, Maidenhead, SL6 4UY
Tel: +44 01793 492265
E: p.james@gardner-leader.co.uk
Gardner Leader is a UK law firm based in the Thames Valley area. Its lawyers offer expertise in commercial law, dispute resolution, residential property and conveyancing, inheritance protection and family. Gardner Leader is also a member of LawNet, a group of over 60 law firms committed to ensuring quality and excellence in their services.
Peter James is a partner in Gardner Leader’s commercial division, bringing a wealth of experience in IP law that he has honed over 37 years of practice. His areas of expertise include copyrights, databases, patents and trademarks, as well as commercial law more broadly. He is also a member of the Society for Computers and Law (SCL) and an associate member of the Chartered Institute of Trade Mark Attorneys (CITMA).
[1] Thaler – v- Comptroller General of Patents, Trade Marks and Designs (2021) EWCA Civ 1374
[2] Thaler –v- Commissioner of Patents (2021) FCA 879
[3] Intellectual Property Office: Artificial Intelligence and intellectual property: call for views, published 7 September 2020
[4] Government response to call for views on artificial intelligence and intellectual property
