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Artificially Intelligent Copyright: Rethinking Copyright Boundaries Osgoode Hall Law School of York University Osgoode Digital Commons PhD Dissertations Theses and Dissertations 7-2-2019 Artificially Intelligent Copyright: Rethinking Copyright Boundaries Aviv Hertzel Gaon Osgoode Hall Law School of York University Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/phd Part of the Law Commons Recommended Citation Gaon, Aviv Hertzel, "Artificially Intelligent Copyright: Rethinking Copyright Boundaries" (2019). PhD Dissertations. 53. https://digitalcommons.osgoode.yorku.ca/phd/53 This Dissertation is brought to you for free and open access by the Theses and Dissertations at Osgoode Digital Commons. It has been accepted for inclusion in PhD Dissertations by an authorized administrator of Osgoode Digital Commons. Artificially Intelligent Copyright: Rethinking Copyright Boundaries Aviv-Hertzel Gaon A DISSERTATION SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY Graduate Program in Law York University, Toronto, Ontario March 2019 © Aviv-Hertzel Gaon, 2019 Abstract My dissertation explores the legal boundaries of copyright law in the wake of artificial intelligence (AI) technology. In building the theoretical foundations for my dissertation, I go through several key phases. First, I highlight important historical events and milestones in AI. I further develop the philosophical debate on AI legal personhood and deliberate whether we are approaching a “singularity” – the next stage of AI evolution. I also explore the concept of AI as it matured through the years. In the second part, I theorize how AI can be regarded as an author under IP normative standards. Part of accepting the argument that AI deserve copyright is a willingness to change the perception that only human creations are worthy of copyright protection. I also seek an answer to two sub-questions – the “who” and the “what”. The “who” considers the normative standards of authorship in the ongoing struggle between an author’s right and the public domain. The “what” raise the originality debate and discusses the standard of creation. In the third part, I outline the many “candidates” for AI authorship – the programmer, the user, the AI and an alternative legal framework for AI’s ownership like the public domain or author-in-law. Finally, I discuss the outcomes of each model and provide my conclusions. ii Acknowledgments Undertaking a Ph.D. degree is like walking in the jungle. You might be fortunate enough to have a decent map and a compass, but without guidance, you are most likely to get lost. I was not. During my journey, I had many teachers and mentors who guided me, carefully and patiently, through the intellectual property maze. First, I wish to thank my supervisor, Giuseppina D’Agostino, the founder and director of IP Osgoode. From the moment we met, Professor D’Agostino encouraged me to develop my ideas, which at the time seemed irrelevant and maybe even preposterous to many. However, Professor D’Agostino realized the potential artificial intelligence could have on intellectual property law, and my abstract ideas materialized under her guidance. I was also very fortunate to have David Vaver and Lior Zemer as members of my supervisory committee. I benefit greatly from their wisdom, both theoretically and doctrinally. I first met Professor Vaver at a conference I had organized in Israel with Professor Zemer in 2014. Professor Vaver’s talk during that conference inspired me and planted the seed for my doctorate studies the following year. I am thankful to Professor Vaver for his support, feedback, and for being an inspiration for many IP scholars around the world such as me. I hope I have earned my place in Professor Vaver’s club now. I would have never dreamed of pursuing a Ph.D. degree if not to Professor Lior Zemer. I owe Lior a debt of gratitude for pushing and stirring me in the right direction. I am happy to discharge some of this debt now. From the moment I met Professor Zemer, I felt his passion for law while sitting in the first row of his first course on Jurisprudence at IDC Herzliya in 2006. More than a decade later, I can say he managed to pass his passion on to me, and I would forever be grateful for this and for all he has done for me. iii I found Osgoode Hall Law School to be an intellectually fertile place and enjoyed the opportunities and support I received from Benjamin Geva, Lorne Sossin, Shelley Kierstead, Dan Priel, and Fred and Joyce Zemans. I remember Dean Sossin’s remarks (and glooming warning) on my first day at Osgoode (if memory serves) that a Ph.D. program is a very lonely one. I thank the many people mentioned here for proving Dean Sossin wrong. And I will always treasure my many friends and colleagues who made my journey a very pleasant one. Special thanks go out to my partner in crime(s) – Ian Stedman – who went on with most of my crazy ideas. Ian, you have been a terrific friend and colleague. I am also grateful to Tamera Burnett, Suzanne Chiodo, Matthew Dylag, Amit Elazari Bar On, Jordan Fine, Ung Shen Goh, Bob Tarantino and many more. As a member of IP Osgoode, I had the opportunity to work alongside many great people at Osgoode and other institutions while organizing conferences and events that contributed to the vibrant discussions that IP Osgoode facilitates. In all those endeavours Michelle Li was – and still is – an absolute force. I could not have imagined a more capable or supportive person to work alongside in order to make all our innovative ideas come to life. I thank Michelle for both her support and her friendship. My dissertation is also the tipping point in my legal education, to which many have contributed. I would like to mention a few: Professor Amnon Rubinstein, who gave me excellent advice and support throughout the years. Ronen Kritenshtein, who is a role model for me in regard to academic and legal practice excellence. Aharon Barak, Dov Greenbaum, Justice Asher Grunis, Liav Orgad, Sharon Rabin-Margalioth, Hillel Somer and many other mentors and brilliant legal scholars that nurtured me as a student. And I owe Sharon Pardo a debt of gratitude for sharing his academic wisdom and experience with me. iv I also wish to thank Mrs. Nina Weiner, ISEF Foundation Chairwoman Emerita and ISEF for their continuing support of my research. Last, but not least, I thank the Canadian branch of my family who opened their homes and hearts for me during these challenging times and helped me cope with the weather and my longing for Israeli food. Freda, Arthur, Zak and Noam Muscovitch, I would always cherish the time we shared together. v Table of Contents ABSTRACT .................................................................................................................................... ii ACKNOWLEDGMENTS ............................................................................................................. iii TABLE OF CONTENTS ............................................................................................................... vi PART I: SEARCHING FOR COMMON GROUND: CONCEPTUALIZING AI ......................... 1 1.1 Introduction .......................................................................................................................... 1 1.2 The Singularity Is Near ...................................................................................................... 11 1.2.1 The AI Momentum ........................................................................................................ 11 1.2.2 A Look Back – A Brief History Of AI .......................................................................... 16 1.2.3 Current Trends In AI – Assessing The AI Potential And Risks .................................... 26 1.2.3.1 The (Re)Emergence Of AI Technology ................................................................. 26 1.2.3.2 Regulating AI ......................................................................................................... 30 1.3 Legal Personhood For AI ............................................................................................... 47 1.3.1 Only Natural Humans Deserve Legal Rights ................................................................ 49 1.3.2 The Critical Component Argument ............................................................................... 50 1.3.3 AI Is Property Argument ............................................................................................... 52 1.3.4 Alternative Models For AI Personhood ........................................................................ 53 1.4 Defining Artificial Intelligence ...................................................................................... 57 1.4.1 The AI Concept ............................................................................................................. 58 1.4.1.1 Concept Vs Conception ......................................................................................... 58 1.4.1.2 Different Approaches To AI .................................................................................. 59 1.4.1.3 “Breaking” The AI Concept................................................................................... 67 1.4.2 AI As An Essentially Contested Concept ..................................................................... 72 1.4.3 The Contingent Concept Of The Law ........................................................................... 76 1.5 Non-Human Intelligence ...................................................................................................
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