Should AI be considered a creator under intellectual property law

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This topic contains 14 replies, has 5 voices, and was last updated by  PopeBeanie 1 year, 4 months ago.

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  • #50422

    Unseen
    Participant

    (Inspired by the article Generative Artificial Intelligence And Copyright Law – Analysis in this week’s Sunday School)

    I had Google’s Bard AI write me a sonnet comparing Poe with Baudelaire.

    Sonnet Comparing Poe and Baudelaire

    Two poets of the dark, their souls entwined,
    Poe and Baudelaire, their visions keen,
    They plumbed the depths of madness and the mind,
    And laid bare truths that others dared not glean.

    In Poe’s tales of terror, we behold
    The haunted heart, the mind’s abyssmal night,
    Where raven’s croak and Annabel grows cold,
    And Usher’s house dissolves in eerie light.

    Baudelaire’s verse, with its decadent grace,
    Evokes the city’s spleen, the soul’s decay,
    Where flowers of evil bloom in every place,
    And beauty’s mask hides darkness and dismay.

    Though oceans vast their native lands divide,
    In kindred spirits, Poe and Baudelaire allied.

    Since copyright exists to protect the work of original creators, should I be able to lay claim to a copyright on this poem? I don’t think so.

    Now, there is a way around this. I can write a work analyzing this poem and claim a copyright on that. I can create a major work full of AI-generated poetry and claim a copyright on that. But what about AI-generated works themselves. Should some human be able to claim a copyright? What about the company that own the AI? Or should the poem be considered public domain…basically like something found on the sidewalk.

    I think we’re looking at another legal quagmire resulting from high technology.

    BTW, it’s not just limited to copyright. There are three forms of protection, copyright being just one. There’s also trademarks and trade secrets, both of which could also be generated by an AI. A company logo is probably the most basic form of a trademark. AI’s are probably already generating those. An AI can generate a new chicken batter formula for KFC chicken.

    These all give protection to the humans or companies that create/invent them.

    But what sort of protection could/should an AI be able to claim, bearing in mind that someday the question of AI consciousness is likely to come to the fore.

    • This topic was modified 1 year, 4 months ago by  Unseen.
    #50451

    RichRaelian
    Participant

    #50452


    Participant

    Intellectual property requires the ability to own property. In the case where AI has some measure of personhood, it’s not going to be entitled to property rights. In the case where a corporation of entity that has corporate personhood is the owner of the AI, then perhaps that entity could claim copy right.

    But to what end? In the case where AI is conscious to the degree that monetization and morality rights matter to it, I’d definitely entertain the possibility that AI should have intellectual property rights. But until such time, I don’t see the point.

    Since copyright exists to protect the work of original creators, should I be able to lay claim to a copyright on this poem?

    I don’t know if that’s entirely accurate. Copyright belongs to whomever owns it, which could be the creator/ author, or it could be the person who commissions the work, or it could be the company employing the creator, or it could be someone who bought or inherited the copyright etc. It exists so that the copyrighted thing can be treated as property.

    #50453

    Unseen
    Participant

    I don’t know if that’s entirely accurate. Copyright belongs to whomever owns it, which could be the creator/ author, or it could be the person who commissions the work, or it could be the company employing the creator, or it could be someone who bought or inherited the copyright etc. It exists so that the copyrighted thing can be treated as property.

    We’re talking about two different things. I’m defining copyright in terms of its purpose of protecting creators from infringement. You’re talking about ownership. It’s purpose is to protect creators as I said, but I can create something for my employer who owns it, but that’s only because of the contractual or implied ceding of the copyright to the employer for the compensation(s) involved by being employed by them.

    I’d be interested in hearing Jake’s take on this, since he’s an attorney.

    • This reply was modified 1 year, 4 months ago by  Unseen.
    #50455


    Participant

    We’re talking about two different things. I’m defining copyright in terms of its purpose of protecting creators from infringement. You’re talking about ownership.

    That isn’t its purpose though. It’s one of the major applications and benefits of copyright law, but copyright didn’t originate for that reason and copyright law in various media has never been that straightforward. At a fundamental level, it’s purpose is literally its name. The same holds true for intellectual property. While protecting creators from infringement is one notable application, it’s not an essential element of either copyright or intellectual property.

    I can understand perhaps you want to make a philosophical distinction, but this is a practical area of law. There are many cases where copyright defaults to the creator of the work in question, but it’s not ubiquitous.

    #50456

    Unseen
    Participant

    There are many cases where copyright defaults to the creator of the work in question, but it’s not ubiquitous.

    As I wrote.

    #50457


    Participant

    There are many cases where copyright defaults to the creator of the work in question, but it’s not ubiquitous.

    As I wrote.

    It’s not as you wrote for the reasons already outlined up above. If you are talking about copyright in its contemporary meaning, you are, indirectly, talking about the ownership of IP because the right to make copies belongs to the owner of the IP, not the originator of the work per se. While copyright law typically* defaults copyright to the originator of the work, if the originator cannot actually own IP or has come to some other contractual arrangement, then the originator won’t have copyright.

    *Historically not always the case and may vary by jurisdiction.

    #50458

    Unseen
    Participant

    There are many cases where copyright defaults to the creator of the work in question, but it’s not ubiquitous.

    As I wrote.

    It’s not as you wrote for the reasons already outlined up above. If you are talking about copyright in its contemporary meaning, you are, indirectly, talking about the ownership of IP because the right to make copies belongs to the owner of the IP, not the originator of the work per se. While copyright law typically* defaults copyright to the originator of the work, if the originator cannot actually own IP or has come to some other contractual arrangement, then the originator won’t have copyright. *Historically not always the case and may vary by jurisdiction.

    I said, copyright, right to control and sell copies or sell the original, belongs either to the creator or whom they work for. Where do we disagree?

    #50459


    Participant

    I said, copyright, right to control and sell copies or sell the original, belongs either to the creator or whom they work for. Where do we disagree?

    We’re talking about two different things. I’m defining copyright in terms of its purpose of protecting creators from infringement. You’re talking about ownership. It’s purpose is to protect creators as I said,

    Copyright doesn’t exist to protect creators. That’s not why it was created and that’s not its actual function at the most fundamental level. The practice of defaulting copyright to creators and enshrining morality rights exists to protect creators. But it’s not by virtue of being a creator that you hold copyright. Currently, AI cannot hold copyright whether we think they should be able to or not. Being a creator doesn’t create an argument for why AI should hold copyright if the more fundamental issue of ownership isn’t first addressed.

    Elephants create art that is sold. Some of it is likely replicated. They do not and cannot hold copyright because that is a matter of property ownership, not some ideal pertaining to creators. To ask if elephants should hold copyright to their created works is to ask if they should be able to own property. Whether your answer is yes or no, that is fundamentally the question because that is fundamentally what copyright is: not an abstract property of creators, but rather property full stop.

    #50460

    TheEncogitationer
    Participant

    RealRaëlian,

    And what does this mean? If you don’t mind, could you work with me on this? 😁

    #50466

    Unseen
    Participant

    @autumn

    Sometimes people just don’t speak the same language.

    It’s often framed as being designed to protect works of art, but works of art by themselves are inanimate, lifeless things. One has to ask why bothering doing that? Was it because the works of art hired lobbyists because they feared being copied. No.

    It was done on behalf of original creators or those the creators work for, which I will subsume under the term “creator/creators.” They are the ones with a vital interest in being protected. Hence, no matter how it’s worded, it’s there to protect the interests of the creators. The created works don’t care.

    Now, if we differ as intensely as you seem to think we do, I only ask that you demonstrate that with a revelatory case making the distinction you’re hanging your hat on plain. An example. Is that too much to ask?

    Maybe that could cut across the language barrier.

    #50467


    Participant

    @autumn Sometimes people just don’t speak the same language. It’s often framed as being designed to protect works of art, but works of art by themselves are inanimate, lifeless things.

    It was created to regulate the right to create reproductions/ prints of written works. Protecting the intellectual property of authors came after (though instituted long before any of us were born). But ultimately, even in that regard, copyright protects the owner of the IP. For instance, early copyright practice for photography was ambiguous and had more to do with who owned the plates/ negatives/ transparencies which could, by default, be the person who commissions the image and not the photographer. In Canada this was only resolve in the 21st century with amendments to the copyright act (2011, I believe).

    While the philosophy of protecting creators existed in the concept of copyright, ownership was still the defining characteristic of the right itself. A dead person cannot hold copyright because a dead person cannot own property. An elephant cannot hold copyright because an elephant cannot own property. AI cannot hold copyright because AI cannot own property. Until you address the issue of holding property, the aspect of protecting creators is moot.

    #50470

    Unseen
    Participant

    It was created to regulate the right to create reproductions/ prints of written works. Protecting the intellectual property of authors came after (though instituted long before any of us were born). But ultimately, even in that regard, copyright protects the owner of the IP.

    We do not pass laws to protect works of art but their owners, I agree. In the case of creative works, those are the creators themselves, which are either an independent self-employed hands-on creator or the employer of the hands on creator who owns the work via implied or explicit contract with the hands on creator.

    #50475


    Participant

    It was created to regulate the right to create reproductions/ prints of written works. Protecting the intellectual property of authors came after (though instituted long before any of us were born). But ultimately, even in that regard, copyright protects the owner of the IP.

    We do not pass laws to protect works of art but their owners, I agree. In the case of creative works, those are the creators themselves, which are either an independent self-employed hands-on creator or the employer of the hands on creator who owns the work via implied or explicit contract with the hands on creator.

    In the case of creative works, the owner of the IP is simply the owner of the IP. The default first owner is the creator except a) when other legal arrangements have been made, or b) the creator cannot own property. I’ve given you two examples. If the creator dies, they do not own the IP. If the creator was a non-human animal, that animal does not own the IP. AI fits unambiguously into this category. AI cannot own property. So long as that is the case, AI should not own the copyright because it is a matter of property rights first and foremost. If you want to argue AI should hold copyright, you’d have to make the case that AI can own property.

    As for who would own the copyright, likely the person who instructed the AI on what to create. It’s questionable if AI can be considered an artist in the first place, or if it’s merely a tool. Procedurally generated art is already a thing. Art generated through randomized processes is a thing. Modern phones use intelligent software and hardware to do render the human actually snapping a photograph all but a technicality in some cases. There are plenty of ambiguous cases. Alternatively, whoever created the AI could argue it’s theirs. Also possible is that the works aren’t subject to copyright. Not all work is.

    #50478

    PopeBeanie
    Moderator
    I have a couple of nits to pick, y’all can tell me whether or not they’re relevant.

    Since copyright exists to protect the work of original creators, should I be able to lay claim to a copyright on this poem? I don’t think so.

    I feel a need to refine this definition, and your question. Let’s stick to created music, for now. The creator first has to claim ownership of the music, so then according to law, the creator gains the right to sue for “illegally copied” work. The copyright owner has “standing” in court, to sue for alleged copying. But who would actually have standing in court, with “AI created work”? I’ll come back to this, below.

    But what sort of protection could/should an AI be able to claim, bearing in mind that someday the question of AI consciousness is likely to come to the fore.

    And more specifically, what laws will be made defining such rights? Will philosophers (or say, religious scholars) be consulted to define what rights of “personhood” AI should be given? Elected, federal legislatures? We might end up with variety of definitions, by state, same as rights of person assigned by law to fetuses and people who are losing their mental faculties due to something untreatable.

    I think that second question about personhood won’t be fully answered until long after ownership of (e.g.) artistic creations must be answered, e.g. by determining exactly which human(s) is responsible for illegally propagating copyrighted work. This should, at least sometimes be provable to be whoever owns or used the AI. Like always, a person with standing in court will have to bring suit, and then a court will have to decide if law was broken.

    So no, even if AI can be considered to create the same kind of work that could be copyrighted if it were created by a human(s), AI won’t have standing in court for who knows how long?

    In my mind, the deeper question until then is, Should humans who use AI remain responsible for breaking copyright laws?, and I say yes, of course.

    Throwing another possible monkey wrench into the works here, is how increasingly easy it is for AI to find patterns in music (and other art), and then create it before real people would otherwise have a chance to create it, first. You could call that free enterprise, creating art for profit, before people at grass roots level can create it new, for profit. Meanwhile, AI isn’t just creating art on it’s own, it’s learning how to create it by scanning what humans have created and put out there, and then calculating, eventually by algorithms with feedback, what’s likely to be the next art that humans at large might appreciate.

    Will any computers at today’s level inherit the right to own this kind of copyright?

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