In the latest article on artificial intelligence (AI) and IP by the MARQUES Cyberspace Team, Michael Zoebisch discusses copyright, creativity and AI.

In 1998, international DJ WestBam released the song 'Save the Robots', which became the official anthem of that year's big techno party called Mayday. A couple of decades later, those robots could easily have written this (house) song and probably even some of the playlists of famous DJs at that party. More precisely, such software can now 'create' and could have programmed a list of sounds to make that tune. We call this software artificial intelligence (AI) and every day we can read the amazing news about AIs such as ChatGPT and DALL.E.

Of course, Mr Maximilian Lenz (aka WestBam) enjoys copyright protection for his song and many others he has created. But what if an AI had created the song first and the robots had asked for help? Is there any protection at all for those songs or are they free to use?

Can AI creations be protected?

In most jurisdictions, including Germany where WestBam was born, the act of a human being is required to create a work of art protected by copyright (Section 2 Subsection 2 of the German Copyright Act requires a personal act of creation). The same applies to the USA (US Supreme Court of 27.3.1991, Feist Pubs. Inc. V. Rural Telphone Svc. Co., Inc), Australia (Federal Court of Australia of 2.3.2021, Acohs Pty Ltd. V. Ucorp Pty Ltd.) and China (Nashan District People’s Court of December 24, 2019, Shenzhen Tencent v. Shanghai Yingxun). However, there are still questions as to whether and under what conditions AI-generated and/or AI-implemented inventions can be protected. In other words, if we dance on the outcry of help made by the robots, it would be free to use, while the work would be protected all over the world if a human created the same song?

You do not have to look closely at what AI is now capable of creating to feel uneasy about this. There is a project by Deutsche Telekom in Germany where an AI is composing the end of the 10th symphony that Ludwig van Beethoven was unable to finish. The first results are astonishing. In the Netherlands, an AI is continuing the work of master Rembrandt, called 'The Next Rembrandt’, creating works of art so close to the originals that experts have difficulty distinguishing them from paintings by Rembrandt himself. Christie’s auction house sold the painting 'Portrait of Edmond Belamy' for US$ 432,500. Nothing special, you might say. But the painting was created by a computer program.

Humans versus AI

To save time and money, the music in computer games is often created by AI, as are the beautiful designs of landscapes (such as those provided by Unreal Engine 5), people, and even whole scenes. An AI wrote a chapter of Harry Potter, and while some fans of the heptalogy were disgusted, others were very surprised by the creative result.

However, we humans have largely denied robots their copyright. Why do we feel different when an AI creates a work of art that touches us emotionally and even puts itself in Beethoven’s shoes, while we do not care how many times a computer program replies to a query, if we can get the sneakers cheaper? Maybe it is because AI is getting closer to us humans, and that feels disturbing. Creating and being creative was something very human, as far as we can remember, and machines were not able to be creative until very recently.

Other means of protection

If the work of an AI is not protected by copyright, what other means of protection are available? There is always the possibility of registering a particular shape as a design or trade mark. In particular, images or sounds could be protected in this way. Unfair competition law might also be a direction to think about. But these rights require applications and – unlike copyright protection, which comes into existence with the act of creation – are costly. In the UK, there is copyright protection for work created by an AI (Section 178 of the UK Copyright, Designs and Patent Act of 1988); if you are in the EU, the Database Directive might help, a directive that has been widely criticised, and the AI boom might give it a second (some might say any) life. But all these legal bases are not designed for the works of AIs, except for the regulations in the UK.

Time to rethink

So, it may be time to rethink copyright (and, as a next step, patent law) when it comes to AI. We cannot give an AI the right to copyright since such software cannot be the subject of rights and obligations. This is reserved for humans in almost all legal systems. An object cannot itself be the holder of rights. Therefore, if a software does not have its own consciousness and thus its own personality, which would justify qualifying it as a subject of (fundamental) rights, the AI cannot be the owner of the copyright.

But how is the situation to be assessed regarding the copyright owner of an AI? The creator of the software, i.e. the AI, certainly has a copyright. How will the investments of OpenAI and other companies be protected in the long term if the software itself may be protected, but not its results?

It would therefore be worth considering, as in patent law with the process patent (see Section 9 German Patent Act), whether the owner of the process should also be granted protection for the result. The owner of the rights to the AI could therefore have a derived copyright in works 'created' by the AI. It would thus be recognising a kind of derivative or indirect copyright that comes into play in these cases. This consideration is foreign to the system of most copyright laws, which all start from the basic idea of one’s own creation and creative effort. Nevertheless, it may be an idea that we will increasingly be dealing with in the years to come.

Maybe it is time to save them: the robots.

Michael Zoebisch is a lawyer and partner of rwzh Rechtsanwälte, Germany and a member of the Cyberspace Team.

Picture: Travelarz, CC BY-SA 3.0 PL, via Wikimedia Commons