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Ai-Generated Creations AI-GENERATED CREATIONS: CHALLENGING THE TRADITIONAL CONCEPT OF COPYRIGHT A RESEARCH INTO THE QUESTION IF WORKS THAT ARE CREATED BY AN ARTIFICIAL INTELLIGENCE PROGRAM HAVE COPYRIGHT PROTECTION IN THE NETHERLANDS AND THE EUROPEAN UNION A. MICHEL Name: A. Michel Student number: U1258696 Date: august 27, 2018 Thesis supervisor: prof. dr. C. Stuurman Second reader: ir. M.H.M. Schellekens 2 Contents List of abbreviations 5 1 Introduction 7 1.1 Background 7 1.2 Subject and purpose of research 8 1.3 Research question and sub-questions 9 1.4 Scope of research: a definition of AI? 9 1.5 Methodology 11 1.6 Thesis structure 11 1.7 Comparative legal analysis 11 2 AI-generated creations 13 2.1 Two types of creations 13 2.1.1 AI-aided creations 13 2.1.2 AI-generated creations 14 2.2 Machine learning, deep learning and artificial neural networks 15 2.3 Technological state of the art 17 2.3.1 Google Deep Dream Generator 17 2.3.2 Amper Music 18 2.3.3 Artificial Intelligence Virtual Artist 19 2.4 Conclusion 19 3 AI-generated creations: worthy of protection? 21 3.1 Intellectual Property Law 21 3.1.1 Rationales of Intellectual Property Law 21 3.1.2 Neutral view of IPR 22 3.2 Copyright law 23 3.2.1 Incentive for innovation 23 3.2.2 Stimulation of creativity 25 3.2.3 Importance for the society 26 3.2.4 No copyright on AI-generated creations 26 3.3 Conclusion 28 4 Copyright protection in the EU 29 3 4.1 Copyright Framework of the European Union and the Netherlands 29 4.1.1 (Copyright) harmonisation in the acquis communautaire? 29 4.1.2 “Works” 31 4.1.3 Originality: author’s own intellectual creation 32 4.2 AI-generated creations 37 4.2.1 A creative AI-program? 37 4.2.2 The human presence in copyright 38 4.3 Conclusion 41 5 Comparative Legal Analysis 43 5.1 United States 43 5.1.1 Legal framework 43 5.1.2 AI-generated creations 47 5.2 United Kingdom 48 5.2.1 Legal framework 49 5.2.2 AI-generated creations 52 5.4 Conclusion 53 Conclusion 55 Bibliography 57 Books 57 Articles 58 Legislation 60 European legislation 60 Other legislation 60 Jurisprudence 61 European Court of Justice 61 The Netherlands 61 United Kingdom 62 United States 62 Other sources 62 4 LIST OF ABBREVIATIONS AI Artificial Intelligence AI-program Artificial Intelligence Software Program ANN Artificial Neural Network ANNs Artificial Neural Networks BC Berne Convention CAW Computer Assisted Work CDPA Copyright, Designs and Patent Act CGW Computer Generated Work CGW’s Computer Generated Works CONTU Commission on Technological Uses of Copyrighted Works Compendium Compendium of U.S. Copyright Office Practices ECJ Court of Justice of the European Union DCA Dutch Copyright Act E.g. exempli gratia [example given] E.I.P.R. European Intellectual Property Review EU European Union I.a. inter alia Ibid. ibidem I.e. id est InfoSoc-directive Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society IP Intellectual Property IPL Intellectual Property Law IPR Intellectual Property Rights Robotics Report Report with recommendations to the Commission on Civil Law Rules on Robotics of 27 January 2017 SACEM Société des Auteurs, Compositeurs et Éditeurs de Musique TRIPs Trade Related Aspects of Intellectual Property Rights UK United Kingdom US United States WIPO World Intellectual Property Organization 5 6 1 INTRODUCTION 1.1 Background Music created by artificial intelligence [AI] used to be a far-fetched and alien concept. However, with the rapid development of AI-programs within the music industry, it is not so anymore. One of the first AI music creations stems from 2016. Sony’s software, Flow Machine, was given the task to compose a track akin to the style of the Beatles, and it was filled with more than 13,000 different songs.1 The AI rolled out a track in the style of the Beatles and with the help of a human composer and lyrics produced by a human writer, the result was a song.2 Nevertheless, a fully produced song by an AI has only been realized recently. Taryn Southern’s new album is almost entirely composed and produced with the help of Amper Music and three other AI-programs.3 While Taryn wrote the lyrics and melodies, Amper Music made some of the compositions in the album. Amper Music states on their website that every composition is unique: “your music is uniquely crafted with no risk of it being used by someone else.”4 However, the creation of music by AI(-programs) raises multiple questions, for example: what does this mean for the copyright on the music? Can there exist a copyright on the music? And if so, who owns the copyright? These questions cannot only be asked in relation to music, but also to art in general. AI has been used in multiple fields of art, such as creating a movie trailer, a novel and even a horror film.5 These developments did not go unnoticed by the European Commission. In its Communication6, it addresses the fact that AI is already a part of our lives: “Artificial intelligence (AI) is already part of our lives – it is not science fiction. From using a virtual personal assistant to organize our working day, to travelling in a self-driving vehicle, to our phones suggesting songs and restaurants that we may like, AI is reality.”7 1 Rich Haridy, ‘2016: The year AI got creative’ (2016) Newsatlas <https://newatlas.com/ai-art-film-writing- review/46891/> accessed 27 August 2018. 2 Ibid. 3 The three other programs are: AIVA, IBM’s Watson Beat and Magenta. Keith Nelson Jr., ‘Taryn Southern’s new album is produced entirely by AI’ (2018) <https://www.digitaltrends.com/music/artificial-intelligence-taryn- southern-album-interview/> accessed 27 August 2018; Lizzie Plaugic, ‘Musician Taryn Southern on composing her new album entirely with AI’, site: https://theverge.com. 4 Amper Music, <https://ampermusic.com> accessed 27 August 2018. 5 Rich Haridy, 2016: The year AI got creative. 6 A Communication is a policy document with no legal effect. The European Commission publishes this document “when it wishes to set out its own thinking on a topical issue”. European Judicial Network, ‘Glossary’ < http://ec.europa.eu/civiljustice/glossary/glossary_en.htm> accessed 27 August 2018. 7 Communication from the Commission to the European Parliament, p. 1. 7 There are various types of existing AI-programs - from a simple spell-checker program to a program that can generate outputs that could be patentable inventions if created by a human.8 Some authors even argue that computers will inevitably displace human inventors to become the creators of the majority of innovation.9 The emergence of AI-programs raises a lot of legal issues such as liability, employment and privacy but also ethical issues, such as autonomy, transparency and accountability. Intellectual property rights, and more specific copyright, is only one of them. The current European copyright framework was not created with the view of protecting works that are not created the ‘traditional’ way, that is, solely by humans. Many aspects of AI were not envisaged fully or even considered at all when modern copyright statutes were enacted in the European Union [EU]. The same view is shared by the European Parliament’s Committee on Legal Affairs. In its report on civil law rules on robotics, the Committee raises multiple questions on the future of AI in the EU – i.a. on intellectual property rights. The Committee states in the explanatory statement: “Notes that there are no legal provisions that specifically apply to robotics, but that existing legal regimes and doctrines can be readily applied to robotics, although some aspects appear to call for specific consideration; calls on the Commission to support a horizontal and technologically neutral approach to intellectual property applicable to the various sectors in which robotics could be employed;”10 The Committee then continues and states specifically on the topic of copyright that it ‘demands the elaboration of criteria for “own intellectual creation” for copyrightable works created by computers and robots’. Currently, a work created by a human being can be protected by copyright, provided that it is the author’s own intellectual creation. However, does this also count for works that have been created almost autonomously by an AI-program? Questions like these will make us rethink traditional notions like ‘author’ and ‘originality’ in copyright. 1.2 Subject and purpose of research The aforementioned AI-programs are only the beginning. As soon as AI-programs start becoming faster and more capable, it is possible that AI could become one of the main drivers of creativity and innovation.11 There is no specific legislation on this subject in the EU, which raises several questions. Is it possible that works created by using an AI-program or by an AI-program 8 Erica Fraser, 'Computers as Inventors - Legal and Policy Implications of Artificial Intelligence on Patent Law' (2016) 13(3) SCRIPTed 305; Ryan Abbott, ‘Hal the Inventor: Big Data and Its Use by Artificial Intelligence’ (2015) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2565950> accessed 27 August 2018. 9 Abbott, Hal the Inventor, p.12; Fraser. 10 Report of the Committee on Legal Affairs with recommendations to the Commission on Civil Law Rules on Robotics of 27 January 2017 (2015/2103(INL)), p. 11 11 Kalin Hristov, ‘Artificial Intelligence and the Copyright Dilemma’, (2017) 57 IDEA 431. 8 autonomously can be protected by copyright in the current EU legal framework? Do other countries have specific legislation for protecting such works? The answer to these questions can be important for multiple actors in the process of developing or using such a program, for example, the developers of the program, the user and other parties involved.
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