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
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)
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. AI is not only challenging the way art is being made, it is also challenging the way we see the traditional concept of copyright. This is the issue that will be addressed in this thesis.
1.3 Research question and sub-questions On the basis of the information discussed above, the research question is the following:
“Can art created by an artificial intelligence program be protected under the current copyright framework in the Netherlands and the European Union, and how is this regulated in the jurisdictions of the United States and the United Kingdom?”
In order to give a complete answer to the research question, the following sub-questions will also need answering: - What is an AI-generated creation?
- Are AI-generated creations worthy of protection under copyright law?
- Is an AI-generated creation protected in the current copyright framework of the Netherlands and the European Union?
- Comparative legal analysis: (How) are AI-generated creations protected in the US and the UK?
1.4 Scope of research: a definition of AI? Before getting to the main content, it is important to comprehend what is understood by the term ‘AI’ in this thesis. The definition of AI, according to the Cambridge dictionary, is: “the study of how to produce machines that have some of the qualities that the human mind has, such as the ability to understand language, recognize pictures, solve problems, and learn”.12 This might look like a clear definition, however, the difficulty with defining what AI exactly is, is that there exist many interpretations of what it actually entails. The reason behind this is that AI is complex and covers many aspects. An example of this difficulty is demonstrated by
12 Cambridge dictionary on artificial intelligence
9 the European Parliament asking the European Commission in the Robotics Report for a definition of AI:
“whereas there is a need to create a generally accepted definition of robot and AI that is flexible and is not hindering innovation”13
As a response, the European Commission released a Communication on the 25th April 2018. Artificial intelligence is defined as follows:
“Artificial Intelligence (AI) refers to systems that display intelligent behavior by analyzing their environment and taking actions - with some degree of autonomy – to achieve specific goals. AI-based systems can be purely software-based, acting in the virtual world (e.g. voice assistants, image analysis software, search engines, speech and face recognition systems) or AI can be embedded in hardware devices (e.g. advanced robots, autonomous cars, drones or Internet of Things applications).”14
In my opinion, this is a rather open definition that leaves a lot of leeway and needs to be made more specific. Therefore, the definition that is, in my view, the most fitting to pursue this thesis is a combination of the definitions given by Turing, Davies and Dickenson. According to Turing, AI is the ability of a machine to exhibit intelligence equivalent or indistinguishable from that of a human.15 Davies added that this encompasses a number of components, like learning, reasoning, perceiving, problem solving and also language understanding.16 The programs can understand, learn and act autonomously and independently from certain observations without requiring any additional programming, according to Dickenson.17 It can adapt itself to new situations.18 Without further human input, they can, thus, improve their performance by ‘learning
13 European Parliament Resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics, p. 1 and the Robotics Report. The report underlines the impending industrial revolution, which will feature sophisticated robots, bots, androids and other manifestations of AI which will eventually have massive effects on society and therefore create the need for legislation that is appropriate on one hand and does not hinder innovation on the other. This involves the creation of a flexible and generally acceptable definition of ‘robot’ and ‘AI’. 14 Communication from the Commission to the European Parliament, p. 1. However, the WIPO came with a definition (or ‘a basic premise) of Artificial Intelligence already in 1991, at the Symposium on the Intellectual Property Aspects of Artificial Intelligence. They state in the preface: ““Artificial Intelligence” is an expression commonly used to designate those types of computer systems that display certain capabilities associated with human intelligence, such as perception, understanding, learning, reasoning and problem solving.” 15 Alan Turing, ‘Computing Machinery and Intelligence’ (1950) 49 Mind 433. 16 Colin R. Davies, ‘An evolutionary step in Intellectual Property Rights – artificial intelligence and intellectual property’ (2011) 27 Computer Law & Security Review 601, p. 603. 17 Dickenson, ‘Creative machines: ownership of copyright in content created by artificial intelligence applications’ (2017) 39(8) E.I.P.R. 457. 18 Alessio Chiabotto, ‘Intellectual Property Rights over non-human generated creations’ (2017)
10 from data’.19 AI consists of multiple subfields. One of these subfields is machine learning, which is frequently used in AI-programs. What the AI approach is to machine learning will be elaborated upon in Chapter 2.
1.5 Methodology This research will be a traditional and doctrinal research that is based mainly on (journal) articles, law books, legislation and case law of the Netherlands and EU. It will also include a comparative legal analysis between the EU, United States [US] and the United Kingdom [UK]. Literature that has been referred to in this thesis has been found in the databases of Tilburg University and various electronic databases such as: https://worldcat.org, https://ssrn.com, https://ejlt.org, https://home.heinonline.org and https://westlaw.co.uk.
1.6 Thesis structure In trying to answer the research question and the sub-questions, this thesis will adopt the following structure. In the second chapter, two different types of works that an AI-program can create will be established: AI-aided creations and AI-generated creations. The focus in this thesis will be on AI-generated creations. In relation thereto, two approaches will be distinguished that are frequently used in AI-programs to create art, the subsets of machine learning: deep learning and artificial neural networks [ANNs]. Lastly, the current technological state of the art will be laid out, which will later be used to clarify whether AI-generated creations could be eligible to copyright protection. In the third chapter, the question that will be answered is whether AI-generated creations should be protected by copyright law of the EU. Does protecting such works fit within the rationales of copyright? The fourth chapter will analyze the copyright regime of the Netherlands and the EU to examine whether the AI-generated creations could be protected by copyright. After analyzing the current copyright regime of the EU, this thesis will contain a comparative legal analysis between the copyright frameworks of the EU, US and UK in the fifth chapter. The following paragraph will explain why this thesis, specifically, will elaborate on the copyright frameworks of the US and the UK. Lastly, the conclusion will contain the final considerations of the findings from the former chapters.
1.7 Comparative legal analysis This thesis contains a comparative legal analysis between the legal systems of Europe and two countries: the US and the UK. Both countries have a different approach on the protection of AI-
19 Dickenson, p. 457.
11 generated creations, which is interesting to compare but also raises questions. The approach of the US is rooted in section 313.2 of the Compendium of the Copyright Office [Compendium]: “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author”.20 The consequence is that these creations fall into the public domain.21 This section accentuates the key role of the human author. The US Copyright Act protects ‘original works of authorship’ and the Compendium states that for a work to be qualified as a work of ‘authorship’ it has to be created by a human being.22 With AI-programs innovating in fast pace, less human intervention will take place. This raises questions whether AI-generated creations could be protected by copyright in the US, and if so, under which conditions.23 In the UK legal system, Section 9(3) of the Copyright Designs and Patents Act 1988 provides that “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”. Computer generated art is explicitly protected, which is unique from an international point of view. However, the important aspect of this provision is that it still requires a human actor who makes the necessary arrangements. The copyright protection is then granted to the person who takes the arrangements necessary (for the creation of the work).24
20 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 101 (3d ed. 2017), section 313.2. 21 Compendium, section 313.6(D). 22 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). 23 Compendium, section 313.2. 24 Jesus Manuel Niebla Zatarain, ‘The role of automated technology in the creation of copyright works: the challenges of artificial intelligence’ (2017) 31(1) International Review of Law, Computers & Technology, 91- 104.
12 2 AI-GENERATED CREATIONS
The question that will be answered in this chapter is: what is an AI-generated creation? The central question of this thesis is aimed at the works of art created by an AI-program. These works of art are referred to as AI-generated creations. However, before entering fully on the core topic of this thesis, two different types of creations that an AI-program can produce will be analyzed: AI- generated creations and AI-aided creations. This will let us understand what an AI-generated creation exactly entails, and will highlight the difference between both types of creations. Hereafter, two different approaches in AI-programs will be analyzed. These two approaches are frequently used in AI-programs that produce art. Lastly, three different AI-programs will be discussed to explain how these different approaches function in practice.
2.1 Two types of creations Currently, AI-programs are mainly being used as a mere tool or aid to help humans create works.25 However, with the rapid development of AI-programs – these programs could possibly create works autonomously soon. Hence, there are some different ‘involvements’ of these AI- programs while creating a work. According to Abbott, computer involvement in the inventive process can be conceptualized on a spectrum. On one end, a computer can be seen as a tool to aid a human author and on the other end, the computer fills in the requirements of being an author.26 In my view, two types of creations can be distinguished when using an AI-program, which are AI- aided creations and AI-generated creations.27
2.1.1 AI-aided creations The first and the most common category of works is that the AI-program is used as a tool to create art. Nowadays, an author is usually assisted by some sort of tool that facilitates the task at hand.28 The program functions as an instrument or assistant to realize the creation. The person
25 Ana Ramalho, ‘Will robots rule the (artistic) world? A proposed model for the legal status of creations by artificial intelligence systems’ (2017) Journal of Internet Law
13 using the program makes (almost) all of the creative choices and can foresee the output of the AI- program. This category of works is referred to as AI-aided or AI-assisted creations. Examples of this type of program used in this approach are AI-programs for translation, to generate subtitles in videos or even to block email spam.29 Also, a commonly used program is the spell-checker, where a user has written an essay and the AI-program plays a ‘small’ role by correcting a few mistakes. At the end, the user of the spell-checker still has done almost all of the creative work. Another clear example of AI-aided works is given by Hristov:
“An example may be the creation of a painting by an artist who has selected the colors, tool type (brush size and stroke style) and has to some extent input his requirements into the AI algorithm used to create the work. Although the artist cannot exactly predict the final version of the generated painting, he has directly contributed to its creation and has some expectations as to what it may look like.”30
They can be seen as extending human power, for example to design, display, rearrange and other things in the creation of artworks.31 The program is therefore a mere tool or aid to help humans create works.
2.1.2 AI-generated creations Secondly, at the other end of the spectrum, it is possible that an AI-program develops the art on its own. The program creates the work with little to no aid of a user. Hence, these creations are made in the absence of any - or little - human intervention32 or creative input at the time of the creation of the work. The only human intervention in creating such a work consists of requesting the program to generate a composition. Works like these are referred to as AI-generated creations. The AI-program creates – almost – autonomously a work, whether it is a picture, a painting or music. As put by Margoni, “if there was human intervention, this (referring to computer generated works [CGW’s]) would be no special category, but rather the usual way of creating works by humans”33 A work like that can be created “without expenditure of significant human skill and effort in the completed work”.34 As will be seen with the examples given in the next paragraph, the situation in which an AI-program independently creates a work is not at all unrealistic. With the latest types of AI, the AI-program is no longer a tool, it actually makes many of the decisions involved in the creative process without human intervention.35 AI-generated
29 Communication from the Commission to the European Parliament, p. 1. 30 Hristov, p. 435. 31 CONTU Final Report, Chapter 3, p. 45. 32 Perry and Margoni, From music tracks to Google Maps, p. 622. 33 Perry and Margoni, From music tracks to Google Maps. p. 623. 34 Gerald Dworkin & Richard D. Taylor, Blackstone’s guide to the Copyright, Designs and Patent Act 1988 (1989), p. 185. 35 Andres Guadamuz, ‘Artificial Intelligence and copyright’ (WIPO Magazine, 2017)
14 creations can already be mistaken with works created by humans.36 The term ‘CGW’s’ will be used frequently throughout this thesis because the UK legislation, as well as, articles of certain authors refer to CGW’s. This is why its relationship with AI-generated creations should be briefly explained. The difference between both works is that AI- generated creations are made by an AI-program whereas CGW’s are created by a computer. An AI-generated creation is a more specific type of the much discussed computer generated work [CGW]. The importance of making a distinction in these two categories is but checking whether these creations are protected by copyright. It can go without saying that if a text is written by a person and the spellchecker automatically checks the grammatical errors, that the text can be protected by copyright – under the condition that it is original enough. However, if an AI-program generates a work, it can raise questions as to whether these creations are encompassed within the copyright framework of the Netherlands and the EU. The scope of this thesis is therefore on AI- generated creations, as it is unclear whether these works are protected by copyright.
2.2 Machine learning, deep learning and artificial neural networks “… what we want is a machine that can learn from experience” – Alan Turing, 1947.
An AI-program can be based upon different approaches. In this thesis, the focus will be on two approaches of AI that are mostly used in AI-programs to create art: deep learning and ANNs. Both approaches are a subset of machine learning. Deep learning as well as ANNs show the best potential to produce creative works.37 Later in this chapter, three AI-programs – which are based upon one of these two approaches - will be discussed. As stated in the introduction, one of the characteristics of AI is that it is capable to learn. Firstly, machine learning will be discussed and later the two approaches: deep learning and ANNs. The characteristic of machine learning is that a program can be configured to become capable of learning.38 The algorithm learns from the data that is inserted in the program: it identifies patterns in the available data and then applies this knowledge to new data inserted.39 It can also improve in performance over time on the task that has been given to that program.40 Future decisions taken by the program can be either directed or independent. Guadamuz states the following concerning the ‘learning’-functionality of these programs:
36 See i.a. Communication from the Commission to the European Parliament, p. 11. 37 Andres Guadamuz, ‘Do androids dream of electric copyright? Comparative analysis of originality in artificial intelligence generated works’ (2017) 2 I.P.Q. 169, p. 171. 38 Paul Lambert, ‘Computer-generated works and copyright: selfies, traps, robots, AI and machine learning’ (2017) 39(1) E.I.P.R. 12; Guadamuz, p. 171. 39 Communication from the Commission to the European Parliament, p. 11. 40 Lambert, p. 17.
15 “A computer program developed for machine learning purposes has a built-in algorithm that allows it to learn from data input, and to evolve and make future decisions that may be either directed or independent. When applied to art, music and literary works, machine learning algorithms are actually learning from input provided by programmers. They learn from these data to generate a new piece of work, making independent decisions throughout the process to determine what the new work looks like.”41
As stated before, machine learning consists of two subsets: deep learning and ANNs. Both approaches will be discussed hereafter. The AI approach to deep learning is best explained by Goodfellow, Bengio and Courville. According to them, deep learning is a form of machine learning where a computer learns from experience.42 There is no need for human interception to explain all the knowledge that the program needs, because the program itself gathers the knowledge from experience. Next to this, the program understands the world in terms of a “hierarchy of concepts” which allows it to learn difficult concepts by building them out to simpler concepts: these hierarchies can consist of multiple built-out layers.43 These layers are based on neural networks.44 An interesting example of how this exactly functions, is given by the Communication on AI of the EU: a deep learning algorithm can be trained by showing some examples that have been categorized correctly. When they are sufficiently trained, they can categorize correctly objects that they have never seen before, in certain cases even more accurate than humans could.45 ANNs is an AI approach “based on biological neural networks that use neuron equivalents based on mathematical models”.46 An ANN mimics the way of processing information of a human brain. It works differently than normal input-output algorithms. ANNs learns by showing it examples. It is interconnected by neurons that work together to solve a problem – much like the human brain.47 An ANN learns from its mistakes – when data is inserted for the first few times it will not get the right answer. If the ANN is told whether it is warm or cold, it will try the same process a number of times just until it gets the right balance of neurons.48 ANNs are becoming faster and are able to solve complex problems in a reasonable amount of time.49 Both approaches,
41 Guadamuz in WIPO Magazine. 42 Ian Goodfellow, Yoshua Bengio & Aaron Courville, Deep learning (The MIT Press, 2016), p. 1 to 3. 43 Ibid. 44 Riccardo Miotto, Fei Wang, Shuang Wang, Xiaoqian Jiang, Joel Dudley, ‘Deep learning for healthcare: review, opportunities and challenges’ (2017) 1 Oxford University Press, p. 2. 45 Communication from the Commission to the European Parliament, p. 11. 46 Guadamuz, p. 3 with reference to Nelson and Illingworth, ‘A Practical Guide to Neural Nets’ (New York: Addison-Wesley, 1991), p.13. 47 David Aslan French, ‘How Artists Can Use Artificial Intelligence to Make Art, ArtPlusMarketing
16 deep learning and ANNs, make use of neural networks. 50 They both can categorize objects that they have not ever seen before and be used for tasks like object or speech recognition or categorization.
2.3 Technological state of the art In this paragraph, a closer look will be taken at the current state of the art of AI-programs. There are some questions that come into mind when describing AI-generated creations and its approaches, such as: what kind of art can AI-programs currently create, how much human input do they need and how ‘independent’ are they? By looking at the current state of art of these programs, these questions will be answered. On the basis of a clearer look into the works of art these programs create, later in this thesis can be established whether these works are worthy of copyright protection and whether they are protected by copyright in the Netherlands and the EU. Three AI-programs will be discussed: Google Deep Dream, Amper Music and AIVA.53
2.3.1 Google Deep Dream Generator The Google Deep Dream Generator is a set of tools that was invented to “explore different AI algorithms” and create visual content.54 It exists of three tools with different styles and algorithms. The ‘Deep style’ algorithm is capable of using its knowledge to interpret a certain painting style and then applying this style to the uploaded picture. The ‘Thin Style’ algorithm is a simplified version of the deep style algorithm, but works faster. The third algorithm, ‘Deep Dream’, helped scientists and engineers see what a deep neural network is perceiving when it looks at an image.55 The program mimics the human thinking and
50 There are a few differences between the ANN and the deep learning approach. These differences are minor and will not play a role in the rest of the thesis. However, to understand both approaches, the differences will be explained. According to Miotto et al. the differences are rooted in three elements: the number of layers, their connection to each other and their ability to learn from the input: “In fact, traditional ANNs are usually limited to three layers and are trained to obtain supervised representations that are optimized only for the specific task and are usually not generalizable. Differently, every layer of a deep learning system produces a representation of the observed patterns based on the data it receives as inputs from the layer below, by optimizing a local unsupervised criterion.” Miotto et al., Deep learning for healthcare, p. 2 and 3. 53 There are however many more AI-programs that create different sorts of art. An example of an AI-program in the Netherlands is the Rembrandt-project. In the Netherlands, a group of museums and institutions created a portret called “the next Rembrandt”. They wanted to bring the works of the painter back so they took in a select number of paintings and took them pixel by pixel and inserted them into the program. It analyzed about 346 selected paintings of Rembrandt which accumulated to 150 GB of data. Via deep learning algorithm and machine learning it then made a painting which could have been created by Rembrandt himself. See: The Next Rembrandt,
17 makes a decision as to how to transform the input based on an ANN algorithm.56 An image can be uploaded into the program, and the program shows what your neural network is seeing. The AI blog of Google contains the latest news of the developments of Google AI and in one of these blogs, Inceptionism, a Google Software Engineer explains how the Deep Dream algorithm works.57 They train the network by i.a. adjusting parameters until it reaches the classification they want. Its ANN consists of ten to thirty layers which can ‘talk’ to each other until the last layer - the output layer – is reached which gives the output.58 The Google AI blog states how these layers interact with each other:
“One of the challenges of neural networks is understanding what exactly goes on at each layer. We know that after training, each layer progressively extracts higher and higher-level features of the image, until the final layer essentially makes a decision on what the image shows. For example, the first layer maybe looks for edges or corners. Intermediate layers interpret the basic features to look for overall shapes or components, like a door or a leaf. The final few layers assemble those into complete interpretations— these neurons activate in response to very complex things such as entire buildings or trees.”59
What is remarkable is that the program itself can make decisions, which implicates that the outcome is unpredictable but at the same time is a direct result of a decision made by the algorithm.60 About this process, Guadamuz states the following:
“The different levels of abstraction produce new images that do not resemble the originals, but, most importantly, they are not the result of creative decisions by the programmers; rather, they are produced by the program itself”61
2.3.2 Amper Music Amper Music is “an AI composer, performer, and producer that empowers you to instantly create and customize original music for your content.”62 The AI-program is based on a machine learning algorithm. In order to create a song; a mood, style and length must be selected.63 The outcome is an original music track that is ready for use within minutes. Taryn Southern’s new album is composed and produced with Amper Music and three other AI music programs: IBM’s
56 Guadamuz, p. 171 57 Google AI Blog, Mordvinstev, ‘Inceptionism: Going Deeper into Neural Networks’ (2015)
18 Watson Beat, Google’s Magenta and AIVI.64 Amper Music is not the only music AI-program on the market. Basically, music can be made with the touch of a button. However, it is still possible to change the parameters of the created song (e.g. the structure, tempo, adding some elements and more).65
2.3.3 Artificial Intelligence Virtual Artist AIVA [Artificial Intelligence Virtual Artist] is based on a deep learning algorithm and is capable of understanding concepts of music theory and compose music on its own.66 The program has been learning the art of composing by going through a large collection of music written by i.a. Mozart, Beethoven and Bach to create a mathematical model representation of what music is.67 This model representation is then used by the program to create unique music. AIVA is the first virtual composer in the world that is recognized by the author’s rights society of France and Luxemburg: Société des Auteurs, Compositeurs et Éditeurs de Musique [SACEM]. Thus, it is the first non-human being that is recognized by an author’s right society as a composer and has acquired the “worldwide status of Composer”.68 This implicates that even if AIVA learns from a collection of music that is copyright-free, because the program is registered under SACEM, its compositions are not in the public domain. 69
2.4 Conclusion The central question in this chapter was: what is an AI-generated creation and what are the approaches in an AI-program? Firstly, a distinction was made between two types of works: AI- generated creations and AI-aided creations. The focus in this thesis is on AI-generated creations. These are works that have been created in the absence of any – or little – human intervention, the AI-program almost autonomously creates the work. An example of this type of work is when the user’s efforts consist of merely requesting the program to generate a work. An AI-generated creation is a more specific type of CGW’s, which are works generated by a computer. Secondly, approaches of AI were analyzed: machine learning and it subsets: deep learning and ANNs. Lastly, three AI-programs were discussed.
64 Podcast Taryn Southern 65 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. In an interview, Taryn Southern explained that the AI music program of Watson musicians who have more background a more creative license, where Amper might be easier for beginner musicians and early music creators who want a bit more of a full production experience. 66 AIVA Technologies,
19 The Robotics Report states that in the long term, smart and autonomous machines will be created that will have the capacity of making independent decisions.70 As seen in paragraph 2.3, some of these AI-programs can already make independent decisions, but still need a human actor to press the button. In this thesis, the focus is on ‘simple’ AI-programs that can produce for example tunes, pictures or paintings. AI-programs that are capable of creating this type of art are already reality and the fact is that they are only going to become more sophisticated and complex. Whether AI-generated creations should be protected under intellectual property law and/or more specifically copyright, will be elaborated further upon in the next chapter.
70 Robotics Report, p. 2.
20 3 AI-GENERATED CREATIONS: WORTHY OF PROTECTION?
Before getting to an in-depth analysis of whether an AI-generated creation can be protected by a copyright, we first need to establish if the works of an AI-program are worthy of protection under intellectual property law, and more specifically copyright. The central question that will be answered in this chapter is: are AI-generated creations worthy of protection under copyright law? The analysis takes place step by step. First, the rationales of intellectual property law will be analyzed to get a better understanding and going more in-depth and pursuing the topic of this thesis, the arguments in favor of and against protection of AI-generated creations within the copyright framework will be discussed.
3.1 Intellectual Property Law 3.1.1 Rationales of Intellectual Property Law To understand whether a work created by an AI-program is worthy of protection under intellectual property law [IPL], we first need to have a deeper understanding of the underlying rationales of intellectual property rights [IPR]. The first chapter of the World Intellectual Property Organization [WIPO] IP Handbook starts off with the following statement:
"Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and the right of the public in access to these creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development."71
One of the basic concepts of why intellectual property rights exist is that innovation has to be rewarded.72 By giving an author a certain monopoly over what he has created, it will facilitate him to recoup the costs incurred and he would be stimulated to invent more.73 If an author would not be given this protection, it could have an opposite effect for innovation, as the competitors could exploit the work without consequences.74 The effect would be that the authors would not bother to invest financially and mentally to create new forms of art. Moreover, next to the innovation, there are also other economic aspects to be considered in having an intellectual property right protection. According to Kur and Dreier, the economic importance of intellectual property rights can be ascertained on the macro and the micro level.75
71 WIPO, WIPO Intellectual Property Handbook (2nd edition, WIPO, 2004), p.1. 72 Ibid. 73 Davies, p. 605 and 606. 74 Ibid. 75 Annette Kur and Thomas Dreier, European Intellectual Property Law (Edward Elgar Publishing, 2013), p. 9.
21 At the macro level they foster innovation and competition, which in turn leads to employment, improves the gross national product and results in a higher per-capita-income.76 The legal protection is of great significance for the countries with a strong intellectual property production. On the micro level, they are seen as determinants of the market value of a business, indicating the innovative and creative strength, as well as potential.77 Kur and Dreier mention that these aspects are important for IPR in general, however, a parallel could be drawn to the works that are created by an AI-program. AI is a (potential) crucial technology that can have a big impact on i.a innovation and the society. Taking all the aforementioned into consideration, it seems of importance that AI-generated creations are protected within the intellectual property framework. Furthermore, it would contradict the reasons of why we have intellectual property rights in the first place, namely for innovation and economic reasons and also for the protection of the interest of the authors.
3.1.2 Neutral view of IPR The rapid development of AI did not go unnoticed by the European Parliament and the European Commission. In the Robotics Report, the European Parliament’s Committee on Legal Affairs stated that there are no legal provisions applying to robotics in the European legislation, including AI, on the field of intellectual property rights.78 However, existing legal regimes could be applied to them – but some aspects call for a specific consideration. The Commission is called upon to support a “horizontal and technologically neutral approach to intellectual property” applicable to sectors in which robotics could be employed.79 The explanatory statement to the Robotics Report states that the Commission should come forward with a balanced approach to intellectual property rights when applied to hardware and software standards and codes that should protect and foster innovation at the same time.80 Next to this, they demand that the criteria for ‘own intellectual creation’ for copyrightable works produced by computers or robots is elaborated.81 In the recent Communication to the European Parliament, the Commission reacted to this call from the European Parliament and stated that creating works by using AI can have implications on various intellectual property rights.82 The Commission stated that using AI to create works can have effects on different intellectual property rights – patentability, copyright and right ownership. Next to this, the Commission underlined the importance of reflection on the interactions between AI and intellectual property rights from intellectual property offices and users “with a view to fostering innovation and legal certainty in a balanced way.”83
76 Ibid. 77 Ibid. 78 Robotics Report, p. 11 79 Ibid. 80 Explanatory statement to the Robotics Report. 81 Ibid. 82 Communication from the Commission to the European Parliament, p. 15. 83 Ibid.
22 What can be concluded from the Robotics Report and the Communication is that there are no IP provisions that specifically apply to AI, however existing legal regimes can be ‘readily’ applied to them. There are nonetheless some aspects that call for a specific consideration, for instance, the “own intellectual creation”-criterion for i.a. AI-generated creations. In the next paragraph, the focus will be on answering the question: if and why AI-generated creations should be protected by copyright law.
3.2 Copyright law Taking it a step further, it could be conceived important to protect AI-generated creations by copyright law. Copyright is an intellectual property right, which exists to protect literary, dramatic, musical and artistic works.84 Copyright is particularly important for the creative industries because it protects the creative or artistic expression of an idea, not the idea itself.85 Copyright law allows the owner of the right(s) of the particular literary or artistic work to control the use of this work. It protects every original work, regardless of its literary or artistic merit.86 Copyright has global significance - think about Hollywood, Bollywood, the music industry and art museums. There are numerous of copyright creations, and their worth can go up in millions.87 There exist different rationales for copyright protection, and three of them will be discussed: innovation, creativity and importance for the society. On the basis of these rationales, explained is why it could be conceived important to protect AI-generated creations within the copyright framework. There are a few counterarguments for the copyright protection of AI- generated creations which will also be discussed. However, who the holder should be of that copyright exceeds the purpose of this chapter, as well as, thesis. Hereafter, criticism is discussed of why it could not be conceived important to protect AI-generated creations.
3.2.1 Incentive for innovation Firstly, copyright can be used as an incentive for innovation. The main means of earning income for literary and artistic authors is their creativity, skill and talent. Their effort and creativity can be compensated and rewarded with copyright protection, which can result in an incentive to create new works.88 Copyright law aims to foster an environment in which creativity and innovation can flourish by striking a right balance between the interests of creators and the wider public interest.89 Next to this, the aim is to incentivize and to reward the investments made in
84 Davies, p. 605. 85 WIPO, ‘How to Make a Living in the Creative Industries’ (2017) accessed 27 August 2018,
23 creation and innovation at the same time. This is achieved by guaranteeing the creator a legally secured lead time to recoup his investment made to come up with and market the created work.90 This right gives the creators a safeguard by granting them a time-limited right to control the use made of those productions.91 The importance of copyright protection for innovation is also accentuated by Kur and Dreier:
"In view of the increasing importance of copyright in the marketplace and for the economy at large, copyright law is to increasingly be seen as a legal instrument to further innovation and to regulate competition"92
Secondly, copyright can be used for follow-on to innovation. Innovation can not only be seen as a stand-alone achievement within the sphere of the developers, but it also can be seen as a trajectory.93 If one has knowledge of a work, it may inspire to come up with a new creation or an improved version thereof. Only direct copying is precluded - copyright law does not prohibit independent creation of the same work by two (different) people. However, there is no obligation for a creator to make his creation public.94 Without an adequate legal protection, it can be imagined that there is little incentive for the developers of AI software programs to (continue) creating, using and improving the capabilities of these programs.95 However, developers could make use of contractual provisions. On the long term, a lack of proper legal protection could possibly hamper development and innovation in the (niche)market of AI-generated creations. Eventually, not only the art-sector could suffer from this, but also the health, education and technology sector, which will, among others, result in loss of valuable research and future AI-programs.96 Also, creators might want to keep the innovation they make to themselves and not make it public, which might have an opposite effect on innovation and creativity. Although, it can also be reasoned that the protection of AI-generated creations within the copyright framework does not have a (direct) influence on innovation and development of this
gross domestic product. In 1996, this number had already increased to 13 billion, 5,2%. However, critically seen, it could go too far as to say that if there was no copyright protection, the incomes would not exist and if everything in the industry is due to copyright.” 90 Kur and Dreier, p. 7. 91 WIPO, Intellectual Property Handbook, p. 3. 92 Kur and Dreier, p. 241 and 242. 93 Ibid. 94 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (2001) OJ L 167/10, article 3. It is possible that an author decides not to make his creation public. Whenever he decides to publish his creation, registration is not necessary, according to the Berne Convention. However, in the US, registering a creation has certain advantages, such as filing infringement suits. Filing an infringement suit is not possible if a creation is not registered. 95 Hristov, p. 438. 96 Ibid.
24 sector. By creating an AI-program that can produce art ‘with the touch of a button’, the automation of creation will bring the costs of creation down. If AI-programs can create works automatically, without any working time or without getting tired, these programs could produce - in theory - an infinite amount of creations. This could bring the costs for the creation of works to a minimum level. In addition, the AI-program itself is protected.97 Nonetheless, the goal of the developer of an AI-program that creates art, is not only to create the program itself, but also to enjoy and/or exploit the art that is created by the program. If the creations of the program are not protected, this could dissuade developers from developing and/or investing in the program, resulting in (valuable) loss of development and research within this sector and the sector of AI.
3.2.2 Stimulation of creativity Next to innovation, copyright also stimulates the creation of intellectual and/or creative works. According to the Greenpaper for Copyright, a rigorous and effective system for the protection of copyright is necessary to provide the authors of works a reward for their creative efforts and to encourage investors to invest in creative works.98 This is closely linked to the stimulation to innovate. In civil law countries, the emphasis is placed on the link between the human author and their work. Copyright acts of these countries usually contain some form of reference to ‘create and/or creativity’.99 Civil law countries have a more moral rights approach whereas common law countries, such as the UK, see more to the exploitation of the work.100 Copyright can be used to recognize the developer and to protect the integrity of the work. Developers of AI-programs can be provided with a reward for their creative efforts and intellectual labor and can be encouraged to continue developing AI-programs.101
97 Computer programs are protected under article 1(3) of the Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs [2009] OJ L 111/16. The computer program can be protected, provided that it is (sufficiently) original. 98 Greenpaper Copyright, Copyright in the Knowledge Economy (2008), p. 4. Greenpaper stated about recitals 10 and 11 of the InfoSoc-directive the following: “A rigorous and effective system for the protection of copyright and related rights is necessary to provide authors and producers with a reward for their creative efforts and to encourage producers and publishers to invest in creative works.” Copyright in Europe started with the Greenpapers in 1988. A few Greenpapers were published, and the last one is this one from 2008. A few guidelines have been adopted on the base of these Greenpapers who are trying to harmonize copyright law, usually in one area. 99 Thomas Margoni and Mark Perry, ‘Scientific and Critical editions of Public Domain Works: an example Of European Copyright Law (dis)harmonization’, (2011) 27 Canadian Intellectual Property Review 157, p. 158 to 160. Examples that are i.a. given are the French Code of Intellectual Property, the German and Italian Copyright Act. 100 Ibid. 101 InfoSoc-directive, recitals 10-11.
25 On the other side, protecting AI-generated creations within the copyright framework does not directly stimulate creativity. An AI-program creates works and does not need any financial motivation, nor to be stimulated to create more works and/or be more creative. In addition, the developer of the program is rewarded already because his program is protected by copyright, so his creative efforts and intellectual labor are recognized. However, from another perspective, the intellectual labor and creative efforts of the developer may be within the program itself, but the works are the direct result of the developer’s labor. The copyright protection should then also ‘stretch out’ to protect these creations.
3.2.3 Importance for the society One of the main goals of copyright is to benefit the society.102 This rationale on its turn also closely relates to innovation and creativity - all three rationales mentioned have a close interaction. Copyright protection is one of the means of “promoting, enriching, and disseminating national cultural heritage”.103 The development of a country depends to an extent on the creativity of its people - the encouragement of individual creativity and its dissemination have a direct connection with progress.104 The enrichment of national cultural heritage directly depends on the level of protection given to literary and artistic works.105 Copyright is therefore an essential element in the development process of a country. Next to benefiting society, the public also has a right to access the works that have been created. This is aside from the aforementioned right that a creator has no obligation to make his creation public.106 It would go far to state that protecting AI-generated creations within the copyright framework is important for the society. However, programs like these could have a positive influence on the society. The market of AI-programs that create art is a (niche)market, but it could be of importance for the development of the broader sector of AI, for example to share research.
3.2.4 No copyright on AI-generated creations Several authors have criticized the inclusion of AI-generated creations within the copyright framework. Their critic mainly expresses that there should not be such a thing as a non-human authorship within the copyright framework, and more specific, that the Berne Convention [BC] does and/or should not incorporate this.
102 WIPO Intellectual Property Handbook 2004, p. 41. 103 Ibid. 104 Ibid. 105 Ibid. 106 InfoSoc-directive, article 3.
26 Ricketson rejects “copyright objectives based in a commercial value rather than the protection of the fruits of human authorship”.107 This would purge copyright of its soul, given the humanist cast of the BC and the human authorship notion that it embodies.108 Ricketson states that there are a few powerful arguments in favour of human authorship. Firstly, he states that recognition of authorship is a fundamental human right of the creator of a work. Reserving the concept of authorship to humans not only affirms the basic human values but also stands as a "welcome reminder of human individuality and uniqueness". In his eyes, the solution is that CGW’s, and thus also AI-generated creations, should be kept out of the BC and receive a personalized legal regime which will result in an easily maintainable level of protection of already existing works of authorship within the scope of the BC. Some authors also argue that programs do not need to be given any incentive to generate output and that the purpose of the intellectual property system is to grant rights to the creators, stimulating them to create and to innovate.109 According to Zatarain, it also needs to be taken into consideration that programs do not get tired and could possibly create better quality works than humans could. This could lead to a replacement of the human element in works that were traditionally considered as an expression of the human nature.110 This could take out the soul and/or human part of copyright. Thus, most criticism of authors is based on the fact that there should not be such a thing as a ‘non-human authorship’.111 However, these authors do not implicate that AI-generated creations should be left without any form of protection – the prevailing view is that a sui generis approach would be the most appropriate option. In my opinion, awarding copyright to AI-generated creations does not rob copyright of its soul. To protect creations like these does not mean that the human author is completely away from the scene. It does not contradict the human nature of creativity either. Protecting these creations by copyright does not remove the human author from the scene, it moves the author to another place in the creation process of the work.112 The human author may not create the work of art itself, however, he has created the algorithm of the program that creates the work. For example, if a
107 J. Ginsburg, ‘People not machines: authorship and what it means in the Berne Convention’ (2018) 49(2) International Review of Intellectual Property and Competition Law 131; Sam Ricketson, 'The 1992 Horace S. Manges Lecture - People or Machines: The Bern Convention and the Changing Concept of Authorship.' (1991) 16(1) Columbia-VLA Journal of Law & the Arts 1. 108 J. Ginsburg, “People not Machines: authorship and what it means in the Berne Convention”. 109 Samuelson, ‘Allocating Ownership Rights in Computer-Generated Works’ (1986) 47 University of Pittsburgh Law Review 1185, p. 1199. 110 Zatarain, p. 95. 111 Ricketson, People or Machines; Ginsburg, People not Machines; James Grimmelmann, 'There's No Such Thing as a Computer-Authored Work - And It's a Good Thing, Too' (2016) 39(3) Columbia Journal of Law & the Arts 403. Grimmelmann states that no one has ever exhibited a work that could be a computer authored work in the sense of the Copyright act. In his article, he states that there are five reasons as to why CGWs are completely different than human-generated works. According to him, CGWs are the response to the question as to whom should be considered as the author of a CGW. 112 Zatarain, p. 97.
27 developer develops an AI-program that can create works with little or no human intervention, and subsequently the developer receives the copyright for the works the program has created - indirectly, it is still a human authorship and the humanist cast of the BC is safeguarded.
3.3 Conclusion Concluding, the central question of this chapter was: are AI-generated creations worthy of protection under copyright law? There has been an explosion in new forms of AI-generated creations which were not originally envisaged when the intellectual property system was designed. The intellectual property framework does not seem to be prepared for what is coming on the field of new technological developments. The European Parliament and the European Commission have taken a stance on these developments. In a Report and a Communication, both the European Parliament as the European Commission came to the conclusion that the EU should strive towards a more technologically neutral approach of i.a. copyright statuses. There are no IP provisions that particularly apply to AI, however existing legal regimes can be applied to them. Intellectual property rights are granted to authors to protect their moral and economic rights and at the same time to promote creativity and encourage fair trading, which in its turn can lead to social and economic development. These rationales correspond with the rationales of copyright. In this chapter is argued that it could be conceived important to protect AI-generated creations by copyright on the basis of the combination of three rationales: innovation, creativity and society. If AI-generated creations are protected by copyright, developers of these programs will not be dissuaded of (further) innovation and this could have a positive influence on the society. Even if protecting AI-generated creations by copyright does not directly stimulate innovation and creativity, it could hamper development in the (niche)market of AI-generated creations, and also the AI-sector. However, copyright is not only about these three rationales, it also has a strong humanist cast over it. Authors are therefore, rightly so, pleading for an only human authorship, some even bringing a solution like a sui generis approach specifically for CGW’s, including AI-generated creations. Nevertheless, in my opinion, the three rationales could override the arguments of these authors. If AI-generated creations are protected by copyright, this does not necessarily mean that the human actor is out of the picture. A copyright on these works will reward the intellectual labor and creative choices made by the developer and at the same time protect his moral and economic rights. In the next chapter, the copyright framework of the Netherlands and the EU will be discussed to answer the question whether an AI-generated creation can be protected by copyright in both legal frameworks.
28 4 COPYRIGHT PROTECTION IN THE EU
The copyright framework of both the EU and the Netherlands will be discussed in this chapter. The central question in this chapter is: is an AI-generated creation protected in the current copyright framework of the Netherlands and the European Union? The conditions to which a work must comply with in order to receive copyright protection will be laid out. Throughout the years these conditions have been established by legislation and jurisprudence. Hereafter, these conditions will be applied to AI-generated creations in order to answer the question whether these works can be protected by copyright within these frameworks.
4.1 Copyright Framework of the European Union and the Netherlands In this paragraph, the copyright framework of the Netherlands and the EU will be established.
4.1.1 (Copyright) harmonisation in the acquis communautaire? European copyright law is fragmented which implies that some subjects concerning copyright are regulated at the European level and some are left to the Member States to regulate. The EU copyright framework is also referred to as “piecemeal legislation”, referring to the limited power the EU legislator had, until a short time ago, to regulate copyright.113 One of the topics that is not regulated by the EU legislator is the material conditions to which a work must comply with, in order for the work to receive copyright protection. This is why both the law of the member state as the EU need to be examined in order to answer the question whether an AI-generated creation can be protected by copyright law. European legislation has only expressed explicitly the conditions of protection with regard to databases, computer programs and photographic works.114 In order for a work to be protected by copyright, it must be a ‘work’ and the work must be original. The European Court of Justice [ECJ] has found itself competent in a few decisions to give an interpretation on the concept of originality, which confirms that there is a European wide harmonization of the originality criterion. Before the harmonization of this criterion, there was
113 Thomas Margoni, ‘The Harmonization of EU Copyright Law: The Originality Standard’ in Mark Perry (ed.) Global Governance of Intellectual Property in the 21st Century (2016), p. 86. 114 See respectively, Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases [1996] OJ L 77/20, article 3 under 1; Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs [2009] OJ L 111/16, article 1 under 3; Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights [2006] OJ L 372/12, article 6.
29 only a generalized originality-criterion for databases, computer programs and photographic works through the three directives.115 The groundbreaking decision of the ECJ on the standard of originality was Infopaq. The ECJ referred to the BC and concluded that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations. The Court continues and states that just as in the three aforementioned directives, works like these are only protected by copyright if they are original in the sense that they are the author’s own intellectual creation. In establishing a harmonized legal framework for copyright, the Directive 2001/29/EC [InfoSoc-directive] is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in its preamble.116 The Court finalizes this analysis with the much-discussed consideration:
“… copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation”.117
The ECJ has repeated this is in a few other decisions, which will be discussed later.118 In aforementioned considerations the ECJ judged that the InfoSoc-directive is based on the same principle as the former international and community provisions. That is why the same protection criterion is applicable to all the categories of works, including the works that are the subject of previous directives. According to Kur and Dreier, “national legislation is precluded from granting copyright protection under conditions which are different from those set out in the Directive”.119 This confirms the uniform interpretation of the originality criterion in Europe. The Dutch Copyright Act [DCA] consists of a list of works, but does not give (general) criteria to which a work must comply with to receive copyright protection. The law, jurisprudence and doctrine regulate the conditions which a work must comply with in order to be protected by copyright.120 It is all about “het werkbegrip”, translated: the concept of work. The conditions for copyright protection are best formulated in the Dutch Supreme Court decision of Lancome/Kecofa.121 A work can be protected if it is susceptible to human perception, has an own, original character and carries the personal stamp of the author. Also, the character and the personal
115 Annemarie Beunen, ‘Geschriftenbescherming: The Dutch Protection for Non-Original Writings’ in A Century of Dutch Copyright Law (deLex, 2012) p. 88. Whether it implies a minimum harmonization or an exhaustive maximum harmonization will not be discussed. 116 Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society 117 Infopaq, paras. 34 to 37. 118 C-403/08 Football Association Premier League and Others [2011] I-09083; C-145/10 Painer [2013] I-12533; C-604/10 Football Dataco e.a. [2012]. 119 Kur and Dreier, p. 293. 120 Charles Gielen, Kort begrip van het Intellectuele Eigendomsrecht (12th edition, Wolters Kluwer, 2017), p. 465 to 467. 121 Kort Begrip van het Intellectuele Eigendomsrecht, p. 468.
30 stamp do not protect what is necessary to obtain a technical effect.122 The same conditions can be extracted out the ECJ’s judgements: there should be a work and this work has to be the author’s own intellectual creation. Therefore, in the next paragraphs, we will discuss the conditions to obtain copyright, which are separated in two categories: the works and standard of originality.
4.1.2 “Works” Copyright comes into existence without any formalities, such as registration.123 Nevertheless, this does not mean that the work should not meet certain requirements, like the standard of originality - this standard will be discussed in the next paragraph.
4.1.2.1 Netherlands In the Netherlands, article 10(1) of the DCA mentions that literary, scientific and artistic works are protected. The list then mentions several examples of these works, i.a. books, brochures, geographical maps, photographic works and film works.124 This list is non-exhaustive, which becomes clear by reading article 10(12) of the DCA:
“and generally any creation in the literary, scientific or artistic domain, regardless of the manner or form in which it has been expressed”.125
A work of ‘literature, science and art’ is according to Hugenholtz a flexible and open concept, which means that all kinds of intellectual creations - even if they have not been thought of by the legislator yet - can constitute a work within that category and thus qualify for copyright protection.126
122 HR 16 juni 2006, NJ 2006/585 (Lancome/Kecofa). HR stands for ‘De Hoge Raad der Nederlanden’ which is translated: The Supreme Court of the Netherlands. The technical effect-condition will not be elaborated upon, since the main friction point is whether an AI-generated creation can be ‘original’. 123 This is different with trademarks, design rights and patents for example. 124 All the examples are: 1° books, brochures, newspapers, periodicals and all other writings; 2° dramatic and dramatic-musical works; 3° recitations; 4° choreographic works and entertainments in dumb show; 5° musical works, with or without words; 6° drawings, paintings, works of architecture and sculpture, lithographs, engravins and other graphic works; 7° geographical maps; 8° plans, sketches and three-dimensional works relating to architecture, geography, topography or other sciences; 9° photographic works; 10° film works; 11° works of applied art and industrial designs and models; 12° computer programs and preparatory materials; and generally any creation in the literary, scientific or artistic domain, regardless of the manner or form in which it has been expressed. 125 Reproduced from the translation in: A Century of Dutch copyright law. The DCA states: “ieder ander, niet genoemd werk van letterkunde, wetenschap of kunst geniet bescherming onder deze wet”. 126 Bernt Hugenholtz, Works of Literature, Science and Art, about art. 10(2) of the DCA, p. 35.
31 The work must be perceptible, susceptible to human perception,127 and is the spiritual creation of the author.128 Ideas are not protected. A work can exist from the moment on it is expressed in any form or manner. Even if the work is not completed yet, it can already be a work in the sense of the DCA. If the work is perceptible, copyright can emerge and it remains so, even if the perceptibility disappears.
4.1.2.2 European Union The BC protects literary and artistic works. All Member States of the EU are a party to the Convention.129 According to the BC “literary and artistic works” includes every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”.130 The BC does not give a definition of what is considered a work, rather it gives a quite complete but non-exhaustive list of categories of works.131 This illustrates that works can be protected by copyright in whatever shape it takes and thus all sorts of intellectual productions that have not been thought about (yet) are encompassed.
4.1.3 Originality: author’s own intellectual creation
4.1.3.1 The Netherlands The history of the current standard for originality to obtain copyright protection in the Netherlands starts in 1985. In the Screenoprints-decision, the Dutch Supreme Court judged that a work can be susceptible to copyright if the work “has its own original character, which bears the personal stamp of the maker”.132 This standard is later confirmed in multiple decisions taken by
127 HR 28 juni 1946, NJ 1946/712 (Van Gelder/Van Rijn). The Dutch Supreme Court considered: “dat alleen de vormgeving, die uiting is van datgene, wat den maker tot zijn arbeid heeft bewogen, de bescherming van het auteursrecht geniet.” 128 Kort Begrip van het Intellectuele Eigendomsrecht p. 470; Paul Geerts and Dirk Visser, Tekst & Commentaar Intellectuele Eigendom (5th edition, Wolters Kluwer, 2016) on article 10 of the DCA. 129 The BC was adopted in 1886 and revised a couple of times. The BC and the WCT are the most relevant treaties in copyright law. 130 The text of article 2 under 1 of the BC is as follows: The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramaticomusical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.”. 131 Thomas Dreier and Bernt Hugenholtz, Concise European Copyright Law (2nd edition, Wolters Kluwer, 2016), p. 13. 132 HR 29 november 1985, NJ 1987, 880 (Screenoprints/Citroen). The Dutch Supreme Court considered that a work can be protected by copyright if it is a work with an original character that bears the personal stamp of the author.
32 the Dutch Supreme Court and is still the criterion that is used daily to analyze whether a work is sufficiently original.133 Thus, in order to receive copyright protection, the work must have an original character of its own and bear the personal stamp of the maker.134 This condition is a two-pronged test: on the one side the work should have its own, original character and on the other side the work has to bear the personal stamp of the author. In the Endstra-decision, the Dutch Supreme Court elaborated both conditions. 135 An own, original character means that the work’s form should not be derived from another work. That the work should bear the personal stamp of the author entails that the work should be the result of creative human labor and thus of creative choices which result in a creation of the human intellect. What an ‘original character of its own’ entails exactly seems a bit vague, however, clarification can be found in the doctrine. The ‘original character of its own’ means that the work should have an own character, which can be expressed in multiple aspects of the creation. This also entails that the work should not be copied from another work.136 To answer the question whether a work has its own character, the next rule of thumb can be used: is it imaginable that two authors, independent from each other, can create the exact same work?137 If this is not possible, it is presumed that the work satisfies that condition. The words ‘personal stamp’ implicitly state that the work must be the result of a human creation.138 In the Van Dale/Romme-decision, the Dutch Supreme Court ruled that a collection of factual data, such as keywords in a dictionary, can be a work if the selection of the words expresses the personal vision of the author.139 However, stating the importance of a human actor, the Dutch
133 Amongst others in the Van Dale/Romme-decision and most recently in the Endstra-decision. 134 Tekst & Commentaar with reference to HR 4 januari 1991, NJ 1991, 608 (Van Dale/Romme). In Spoor/Verkade/Visser, the authors assume that it is not a double requirement with both elements that need to be tested separately. But that it can be extracted from the supreme court’s judgement, that the fact that the work could be different, is by all means not enough for a work to be protected by copyright. There must be a creative performance of the author which is reflected in the work. Technical, objective inventiveness does not fall under the creativity that is protected by copyright: it should be a subjective, personal character that is expressed. 135 HR 30 mei 2008, NJ 2008/556 (Endstra). HR: “dat het voortbrengsel een eigen, oorspronkelijk karakter moet bezitten, houdt, kort gezegd, in dat de vorm niet ontleend mag zijn aan die van een ander werk (vgl. art. 13 Aw). De eis dat het voortbrengsel het persoonlijk stempel van de maker moet dragen betekent dat sprake moet zijn van een vorm die het resultaat is van scheppende menselijke arbeid en dus van creatieve keuzes, en die aldus voortbrengsel is van de menselijke geest. Daarbuiten valt in elk geval al hetgeen een vorm heeft die zo banaal of triviaal is, dat daarachter geen creatieve arbeid van welke aard ook valt te aan te wijzen.” 136 Hugenholtz, Auteursrecht op informatie (Amsterdam University Press, 2005), p. 28. See also: Endstra-decision. 137 Spoor, Verkade, Visser, Auteursrecht, p. 66. However, it is a thumb rule and not a criterion on its own. 138 Spoor, Verkade, Visser, Auteursrecht, p. 66. 139 Van Dale/Romme-decision. In this decision is decided that the work should not only have an own character, but also bear the personal stamp of the author. “Dat wil een werk kunnen worden beschouwd als een werk van letterkunde, wetenschap of kunst als bedoeld in art. 1 in verbinding met art. 10 Aw, vereist is dat het een eigen, oorspronkelijk karakter bezit en het persoonlijk stempel van de maker draagt”.
33 Supreme Court emphasized that the involvement of the author with the creation of the work is a necessary condition for protection.140
4.1.3.2 European Union International treaties do not explain what ‘originality’ entails and what level it has to reach to satisfy the condition and be protected by copyright.141 All the Member States of the EU are party to the Berne Convention and to The Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPs] and the ECJ has found itself competent to explain both the BC and TRIPs. According to Margoni, the reason that these treaties do not explain the notion of originality is that the EU did not have a “clear and direct attribution of powers” to regulate copyright.142 The consequence is that this ‘gap’ is filled up by the legislation and the jurisprudence of the Member States. Article 2(5) of the BC explains that the work is protected as an ‘intellectual creation’.143 “Intellectual creations” does not only apply to literary and artistic works - it extends to all the subject-matter mentioned in article 2.144 The author is not defined in the BC, however from the wording in article 2(5), it can be assumed that the author is the person who authored the intellectual creation, the creator.145 The criterion to obtain copyright protection on literary and artistic works is ‘originality’. The only problem is that originality is not mentioned in the BC. The reason behind this is that the drafters of the BC did not thought it necessary to state that for copyright protection it is required to have a personal intellectual creation.146 The only reference in legislation can be found in the Copyright Terms Directive. In this directive is stated that the protection of photographs in Member States is the subject of varying regimes and that a photograph can be ‘original’ in the sense of the BC if it is “the author’s own intellectual creation reflecting his
140 Spoor, Verkade, Visser, Auteursrecht, about the Supreme Court’s decision of Van Dale/Romme, p. 71 and 72. 141 Treaties such as TRIPs, BC and the WIPO Copyright Treaty (WCT); Margoni, The Harmonization of EU Copyright Law; Ricketson, Threshold Requirements for Copyright Protection under the International Conventions’ (2009) 1 W.I.P.O. Journal 51; Margoni and Perry, Scientific and Critical editions of Public Domain Works, p. 160 and 161. Margoni and Perry continue by stating that the treaties do not explicitly require that a work has to be original, only that it should not be a copy of another work. 142 Margoni, The Harmonization of EU Copyright Law, p. 89. 143 The reason it is only mentioned in article 2(5) is because the originality is inherent in collections, whereas in works collected it may not be discernible. See Ricketson, Threshold requirements for Copyright Protection; Margoni, The Harmonization of EU Copyright Law, p. 88. 144 Ricketson, Threshold requirements for Copyright Protection, p. 57; Margoni, The harmonization of EU Copyright Law, p. 88. In this context, Margoni referred to the principle of conferral in the Treaty on European Union which states that the Union “shall only act within the limits of the competences conferred upon it by the Member States in the Treaties”. 145 Jacqueline Seignette, ‘Authorship, Copyright Ownership and Works made on Commission and under Employment, in A Century of Dutch Copyright Law (deLex, 2012). 146 Concise of the EU Copyright Law, p. 15.
34 personality”.147 However, this extends only to photographs and not to other types of works. This left a certain void, so the ECJ decided to step in with i.a. the aforementioned Infopaq-decision. Throughout the years, formalities have been stipulated by the ECJ on what originality entails. According to the ECJ, the criterion of originality is: ‘the author’s own intellectual creation’. One of the most quoted Court decisions regarding the topic of formalities of a work is the Infopaq- decision. The ECJ decided that a combination of eleven words can be protected by copyright if the work is “the author’s own intellectual creation”. It is however left to the national court to decide whether in the case at hand - the expression of - these words are protected. The standard of ‘author’s own intellectual creation’ is applied horizontally to all of the subject-matter that is covered by the copyright directives of the EU.148 The originality criterion of the Supreme Court of the Netherlands is similar to the “own intellectual creation”-standard of the ECJ.149 Thus, both can be placed on equal footing. Although, with the Infopaq-decision, the ECJ gave a uniform interpretation of the criterion of originality and thereby harmonized this concept throughout the EU. It is now the general criterion of originality for all works.150 Before the Infopaq-decision, Member States applied a different level of originality than others for databases, photographs and software. However, this is not compliant with EU copyright law anymore: one originality standard applies now to all subject-matter that is covered by EU copyright law.151 This means that all Member States in the EU now have the same criterion for copyright protection on works. Nevertheless, it is possible that they will apply this standard in a way that “reflects their own traditional standards”.152 The Dutch Supreme Court ruled in a decision that its originality criterion of “own original character and personal stamp of the author” has the same meaning as the developed originality criterion of “author’s own intellectual creation” in the jurisprudence of the ECJ.153 What this criterion exactly entails, has been decided in multiple landmark decisions which will be elaborated hereafter. After the Infopaq-decision, the ECJ needed to decide whether a computer graphical interface could be seen as a work in accordance with the definitions set out in the European copyright framework.154 The Court ruled that an interface could fall under the subject-matter
147 Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights [2006] OJ L 372/12, recital 16. 148 Margoni, The Harmonization of EU Copyright Law, p. 94. 149 Kort Begrip van het Intellectuele Eigendomsrecht, p. 472. Both come down to the same thing. In the literature, this point of view has also been taken by Geerts, see commentary of Geerts under HR 12 April 2013, NJ 2013/503, under 4. (Stokke/Fikszo). This point of view is also shared by Hugenholtz in his commentary under the Infopaq and BSA-decision. 150 Kur and Dreier, p. 293. 151 Margoni, The harmonization of EU copyright law, p. 101. 152 Margoni, The harmonization of EU copyright law, p. 101. 153 HR 23 februari 2013 (Stokke/H3 Products), para. 4.2. 154 C-393/09 Bezpečnostní softwarová asociace [2010] I-13971, para. 51. The Court judged that “A graphic user interface is not a form of expression of a computer program within the meaning of Art. 1(2) of the Council
35 criterion and be protected by copyright as set out in the Infopaq-decision: if it is the author’s own intellectual creation. Whether in this case the interface could be protected is, likewise, left for the national court to decide. The court elaborated the criterion “own intellectual creation” in the Painer-decision.155 In this case, Ms. Painer had taken a portrait photograph of a child. This child was abducted for many years and newspapers lacked a recent photograph to show to their readers, so they used Painer’s photographed portrait of the child and also made photo-fit images to show what the child may look like now that she was older. The ECJ in this case ruled that photographic works can be protected under article 6 of Directive 93/98 (now: The Copyright Terms Directive) by copyright “if, which is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph”. The free and creative choices can be shown “in several ways and at various points in its production” and by making these choices, the author can stamp the work with his “personal touch”.156 By exercising these choices while making a work, the creative labor will not be minor or non-existent.157 The Football Dataco/Yahoo-decision,158 has as a subject-matter the annual fixture lists of the football leagues in England and Scotland. The question that was raised is whether using the fixture lists with no financial compensation would infringe the sui generis right under the Database Directive. The referring court asked the ECJ to elaborate on the meaning of originality in the Database Directive. The Court ruled that there is no room for ‘free and creative choices’ where the work is dictated by “technical considerations, rules or constraints”.159 It also ruled that:
“significant labour and skill of its author … cannot justify the protection of it by copyright … if that labour and that skill do not express any originality in the selection or arrangement of that data”.160
In SAS International, the ECJ judged that the functionality of a computer program, the computer language and the format of data files used in a computer program are not protected by copyright. The user manual for a program is susceptible to copyright protection if it constitutes the
Directive … and cannot be protected by copyright as a computer program under that directive. Nevertheless, such an interface can be protected by copyright as a work by Directive 2001/29 … if that interface is its author’s own intellectual creation”. 155 Painer, para. 94. 156 Painer, paras. 90 to 92. 157 Painer, para. 93. “Consequently … the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent.” 158 Football Dataco. 159 Ramalho added about the Football Dataco-case: “much like it is the case of a creative AIs, whose “autonomous creations” still depend on technical rules and programming by a human being”, p. 8. 160 Football Dataco, para. 42.
36 expression of “the intellectual creation of the author of the user manual for the computer program”.161 The notion of originality for copyright protection of all types of subject-matter is defined as the “authors own intellectual creation.162 However, what constitutes an own intellectual creation is left to the Member States to decide. This means that having a copyright in one Member State, does not automatically mean having a copyright in another Member State.163
4.2 AI-generated creations Since EU copyright law is fragmented, it is possible that Member States have a specific provision that addresses CGW’s: it can either protect AI-generated creations or decide not to. The Dutch law does not have a suchlike provision. Hence, this paragraph will look at the question whether AI-generated creations are encompassed within the ‘traditional’ copyright framework. It already has been established that there is a uniform interpretation of what the conditions of the work should be in order to be protected by copyright. Authors have argued that the ‘new’ originality-standard that has been set by the ECJ focuses more on the qualitative type than the quantative type of contribution of the author.164 These conditions will be discussed in the light of the Dutch and European legal framework. In order to come to an answer, firstly will be briefly discussed whether it is possible that an AI-program produces a creative work. Hereafter, the question will be answered whether these works can be protected by both copyright regimes.
4.2.1 A creative AI-program? An AI-program can produce creative works within the literary and artistic category. Examples of these works are paintings and music tracks, as discussed in Chapter 2. However, does that make the program creative or does the AI-program exhibit creativity? One could argue that the AI-program itself is creative. An AI-program can imitate the human creative thinking process and make independent decisions, which in theory could mean that the program itself is creative. For example, if the AI-program is given the instruction to perform certain tasks and the algorithm provides the AI-program with more freedom to fulfill these tasks by itself. However, questions can be raised as to whether an AI-program really can be creative. If being creative is “defined in terms of human consciousness”, it could be very difficult and even impossible for machines or programs to reach it.165 But this could be different if it is sufficient that the program creates a non-repetitive
161 C-406/10 SAS Institute [2012], para. 45: “The Court also points out … that the SAS language and the format of SAS Institute’s data files might be protected, as works, by copyright under Directive 2001/29 if they are their author’s own intellectual creation”. 162 Infopaq, paras. 34 to 37. 163 Concise of the EU Copyright Law, p. 15. 164 Margoni, The Harmonisation of EU Copyright Law, p. 95. 165 Annemarie Bridy, ‘Coding Creativity: Copyright and the Artificially Intelligent Author’ (2012) 5 Stanford Technology Law Review, p. 9.
37 and unexpected creation which is not a copy of another work. Especially with more sophisticated and advanced AI-programs, the scenario in which the program generates a predictable and repetitive output can be excluded.166 Its underlying approaches like deep learning and ANNs can be programmed in a way that they can become capable of learning from the data inserted in the program. Hence, it is more likely that an AI-program exhibits creativity. Dorotheou makes an interesting distinction in her text between two groups of artificial intelligence advocates.167 The first group consists of supporters of ‘weak’ artificial intelligence that believe that an AI-program or computer could never have a cognitive process and will merely appear as intelligent. They believe that a computer is a tool with a human controller. The second group, being supporters of ‘strong’ artificial intelligence believe that all human thought is an algorithm, just like a computer, and can be seen as a “succession of mathematical instructions”.168 The question if an AI-program can really be creative is an interesting but also a very broad and wide-ranging question. Therefore, for the discussion if an AI-generated creation can be protected by copyright in the Netherlands and/or EU, we will take the stance that an AI-program can exhibit creativity, but is not creative itself – the stance of the ‘weak’ AI advocates. Boden states on the creativity of computers (and AI):
“Whether computers could “really” be creative isn’t a scientific question but a philosophical one, to which there’s no clear answer. But we do have the beginnings of a scientific understanding of creativity.”169
Concluding, it is possible that an AI-program produces a creative work, which is not predictable nor repetitive. An AI-program can exhibit creativity – but whether that is enough to fulfill the standard of originality, will be discussed below.
4.2.2 The human presence in copyright The Dutch legislation does not have a specific provision that sees on AI-generated creations nor CGW’s and if Member States do not have a provision that allows those works to be protected under national copyright law and they are not protected within the already existing copyright
166 Chiabotto, p. 6. 167 Emily Dorotheou, ‘Reap the benefits and avoid the legal uncertainty: who owns the creations of artificial intelligence?’ (2015) 21(4) Computer and Telecommunications Law Review 85, p. 88. 168 Ibid. 169 Margaret Boden, ‘Computer Models of Creativity’ (2009) AI Magazine 23, p. 23; Boden, The creative mind: myths and mechanisms (2nd edition, Routledge, 2004), p.1. Boden explains creativity at the hand of two categories: P-creativity, which entails a psychological novelty, “one that is new to the person who generated it” and H-creativity, historical creativity, an idea that has not occurred in history and that is also P-creative. In her opinion, AI-programs can be H-creative, but are aiming mostly at P-creativity. Boden states that creativity is “the ability to come up with ideas or artefacts that are new, surprising and valuable.” P-creativity seems the novelty of patent law, whereas H-creativity seems the standard of copyright law.
38 framework, these works are in the public domain. The public domain is the residence of works that are free of any copyright protection.170 Hereafter will be analyzed whether the traditional copyright framework of the Netherlands protects AI-generated creations. The Dutch Supreme Court puts both elements of the twofold test next to each other: the work has to have an own, original character and bear the imprint of the author.171 Together it can be seen as the ‘own intellectual creation’ criterion of the ECJ. One of the two conditions to originality is that the work should bear the personal stamp of the author. This on its turn can be split in two subsets: the work should be the result of creative human labor and the creative choices should result in a creation of the human intellect. The personal stamp-condition implicitly presumes a human author. Taking a closer look to the explanation of this criterion – that the work should be the result of creative human labor and thus of creative choices which result in a creation of the human intellect – the human presence stands out. In para 4.5.2 of the Endstra-decision, the Dutch Supreme Court ruled that in determining whether the work is the product of the creativity of a human being and is thus susceptible to copyright protection, there must be ‘a characteristic that can be seen in the work itself’.172 This means that from the creation itself should be seen if something is created: the will of the author does not play a part in that. According to Hugenholtz, it is not possible to have a copyright on works that have been autonomously created by AI, because there is no direct relationship between the work’s form and the creative labor of the human author.173 On the one hand, one could say that the algorithm of the AI-program is made by creative human labor in such a way that there is always some kind of relationship between the work’s form and the algorithm. On the other hand, one could say that there is no real direct relationship between the two because the outcome of the program is almost unpredictable. In the jurisprudence of the Netherlands, there are two decisions concerning CGW’s. In one of the decisions, the Dutch Supreme Court clearly mentions that there is no place for computer generated works to be protected by copyright.174 The press picture of a soccer player that makes a goal is a work, though that could possibly be different if the picture would be determined by the technique in a prevalent way.175 Another decision (in preliminary proceedings) in 1991 also saw
170 Margoni and Perry, Scientific and Critical Editions of Public Domain Works, p. 162. Examples given are works that are not sufficiently original, expressed or fixed. Or works of which the copyright protection term has expired or works that are not protected because of an exception. 171 Endstra-decision. 172 Endstra-decision, paras. 4.5.1 and 4.5.2. The Dutch Supreme Court states that in determining whether the work is the product of human creativity and it thus a work protected by copyright, there must be a “characteristic that can be seen from the product itself”. 173 Farewell seminar of Hendrik Struik on the 6th of June at CMS by Bernt Hugenholtz. Http://www.ie- forum.nl/artikelen/afscheidsseminar-hendrik-struik 174 Rb. Amsterdam 20 november 1991, AMI 1994, p. 73 (Foto Eusebio). 175 It is possible that it is not clear anymore which ‘creativity’ the program and the user have shown to make the work. The example used is when a computer memory is filled with combinable words and a random generator. In that case, it is doubtful that a push on a button makes a work, how unique and beautiful it may be.
39 specifically to CGW’s. The case was about a computer generated, electronical design of a memory module of a computer company named PSION. The president of the Court ruled that there is no possible way of any creative human labor in its creation, but merely of a complete random, computer generated creation series of circuits which lacks every personal stamp of the author.176 Therefore, the only possibility that an AI-generated creation can be protected by copyright is if there is an identifiable person who uses the technology, and whose personal stamp is present in the result of the collaboration between human and program. If that is the case, there can be a work that is an own intellectual creation in the sense of Dutch copyright law.177 However, an AI- generated creation is made autonomously by the AI-program. The only human intervention is requesting the program to generate a creation. The user of the program will not have its personal stamp embedded in the creation of the program. The developer, however, could be different, since it could develop the program in such a way to have certain functionalities. Though, even if the developer has the space to make certain creative choices whilst developing the program, it is unlikely that it could fulfill the personal-stamp criterion of the Netherlands. Concluding, AI- generated creations cannot be protected within the copyright framework of the Netherlands. Analyzing the ECJ-rulings, the Infopaq’s famous “author’s own intellectual creation” implicitly calls out the author being a human being. Handig declared that “the expression ‘author’s own intellectual creation’ clarifies that a human author is necessary for a copyright work”.178 This can be extended to the Painer-decision, in which the Court uses the words “intellectual creation of the author reflecting his personality”. This, just as the personal-stamp condition of the Dutch Supreme Court, seems to implicate a human being. Even the Softwarova-decision seems to look at the program itself as a work, but not the works the program can produce. Also in this decision, the ‘author’ seems to be a human being. The Copyright Term directive mentions that the work should reflect the author’s personality in order to be original. The Court decision and the mention in the Copyright Term Directive all seem to hint strongly at a human presence. According to Dickenson, even if the Infopaq-standard or the European Copyright Framework could be stretched to cover, for example, human beings using an AI-program, it can be difficult to reconcile this with CGWs, where a human may start a creative process, but does not put its own intellectual ‘creation’ or personal stamp into the final work itself.179 Guadamuz concluded that whether a CGW can be protected by copyright in the European legal Framework under the Infopaq-standard may come down to a case-by-case analysis of how much input comes from the programmer and how much from the program itself.180 However, since we are looking specifically at AI-generated creations with little to no human input, this necessarily means that there can only exist protection if the developer has had sufficient input and his
176 Pres. Rb. Breda, 13 februari 1991, BIE 1992, p. 20; Madeleine de Cock Buning, ‘Computer generated works’, een test voor de grondslagen van het auteursrecht?’ (1993) 1 Computerrecht 10, p. 10 and 11. 177 Spoor, Verkade, Visser, Auteursrecht, p. 31 and 32. 178 Handig, ‘The copyright term ‘work’ – European Harmonization at an unknown level’ (2009) 40(6) IIC 465. 179 Dickenson, p. 459. 180 Guadamuz, p. 176.
40 personality is reflected in the (AI-generated) creation. Guadamuz further states that in the case where there is little to no human interaction, two scenarios are possible for copyright protection of the works created by the AI-program: it can deny copyright for these works or it can attribute ownership to the creator of the program.181 Thus, no copyright protection is possible if the personal stamp of the author cannot be derived from the final result of the work. Concluding, the ‘personal stamp’-criterion requires a strong human presence in both copyright frameworks. Considering all of the above, the ‘author’ in the Dutch and European copyright framework needs to be necessarily a human being, whose creative efforts can be distinguished in the work. Hence, an AI-generated creation is not protected in the current copyright framework of the Netherlands nor the EU.
4.3 Conclusion Currently, the state of the art of AI-programs is evolving, with AI-programs as Google Deep Dream that can almost independently create works. The creations of these programs are unpredictable but also a direct result of a decision that is made by the algorithm.182 So, AI- programs can already produce creative works. However, these works are not encompassed by the Dutch and European copyright framework. Both frameworks require a strong presence of the human author and if there is no human being whose personal stamp can be detected in a work, it is not protected by copyright. While many AIs are not at the stage yet that they can produce creative works independently, we are rapidly approaching that stage. In this respect, it will be important to make a decision about whether works like this will be protected, and if they are protected, under what law. And as stated in Chapter 3, it is essential and important that creations like these are protected as not to discourage authors to create these programs. AI-programs like these can help benefit the society in a country and stimulate innovation and creativity. Since we have established that in the EU AI-generated creations are not protected – unless Member States have a specific provision protecting these works. Hence, in the next chapter, two countries will be discussed that have a different approach on the protection of AI-generated creations. In the US, creations like these will likely fall within the public domain. In contrast, in the UK – for now still a Member State to the EU - the copyright framework allows a CGW to be protected by copyright.
181 Guadamuz in WIPO Magazine. 182 Blog of Google about artificial intelligence.
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42 5 COMPARATIVE LEGAL ANALYSIS
As stated in the previous chapter, AI-generated creations fall within the public domain in the EU. There are a few countries in the world that have explicit provisions in their legislation which make it either possible or not possible to have protection on these works. In this chapter, the copyright framework of the US and the UK will be analyzed. Those countries have, respectively, a provision that makes the works fall within the public domain and which protects the works. The question that will be answered in this chapter is: what are the different approaches on AI-generated creations that exist within or outside the European Union and what lessons could be learned from these approaches?
5.1 United States 5.1.1 Legal framework The question whether CGW’s can be protected by copyright in the United States goes back to 1965. Back then, questions were raised concerning CGW’s and its authorship. The Register of Copyright, director of the Copyright Office, raised those questions in a report to Congress.183 In 1974, the Congress created the Commission on Technological Uses of Copyrighted Works [CONTU] i.a. to study the authorship of CGW’s. Its report was released in 1978. CONTU took on the questions about human authorship184 and stated that:
“This discussion may have stemmed from a concern that computers either had or were likely to soon achieve powers that would enable them independently to create works that, although similar to other copyrightable works, would not or should not be copyrightable because they had no human author”185
However, the examples CONTU subsequently uses to substantiate this claim resembles the AI- aided works as elaborated in Chapter 2. 186 One of the examples that CONTU used, was the computer being used to “simulate musical instruments and perform the music so composed”.187 The conclusion of the report was that there were no new problems imposed by CGW’s and that the existing legislation and jurisprudence were enough to answer the questions posed and no action of the Congress was necessary.
183 Samuelson, p. 1192. U.S. Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights (1965). 184 CONTU Final Report, chapter 3, p. 44. “The crucial question appears to be whether the “work” is basically one of human authorship, with the computer merely being an assisting instrument of whether the traditional element of authorship in the work (literary, artistic or musical expression or elements of selection, arrangements etc.) were actually conceived and executed not by man but by a machine”. 185 Ibid. 186 Ibid. “In every case, the work produced will result from the contents of the data base, the instructions indirectly provided in the program, and the direct discretionary intervention of a human involved in the process.” 187 Ibid.
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5.1.1.1 The Copyright Office’s Compendium The U.S. Copyright Office is the official government body that i.a. advises Congress on issues related to copyright and conducts studies and programs relating to copyright.188 The Copyright Office releases a Compendium, which is an administrative manual of the Register of Copyrights. The Compendium provides instruction to agency staff regarding their statutory duties and provide expert guidance to different parties.189 The information and policies put down in the Compendium do not have the force and effect of law and are not binding, but they explain the legal rationale and determinations of the U.S. Copyright Office - “including circumstances where there is no controlling judicial authority”.190 The Copyright Office has taken a stance on the copyright protection of CGW’s and authorship. The Compendium states in section 306 the following:
“The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.”191
The Compendium continues, stating that it will refuse a copyright if a human being did not create the work. Works that do not satisfy this requirement are not protected by copyright.192 According to the Copyright Office, a work like this cannot fulfill the formalities because it has not a de minimis amount of authorship. The consequence is that these works end up in the public domain.193 The Copyright Office also states in the Compendium that they will not register works that are “produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author”.194 On the base of this, Ramalho argued that:
“Therefore, while it is arguable that the current drafting does not seem to contemplate a future where machines will create works non-randomly or automatically, the requirement of a human author is clear and unescapable.”195
188 U.S. Code, Title 17, Chapter 7, §701. 189 Compendium. 190 Ibid. 191 Compendium, section 306. 192 Compendium, section 313.2. The office also does not register works created by nature, animals or plants. They abundantly state that the office also does not register a work created by a divine or supernatural beings. 193 Compendium, section 313.6. 194 Compendium, section 313.2. 195 Ramalho, p. 6.
44 Interestingly however, the US Copyright Act does not explicitly require human authorship, but there seems to be an assumption that copyright law presumes human authorship.196 The Compendium mentions in this respect two cases - the Trademark cases and the Burrow Giles case - in which not only the originality standard is discussed, but is also an example of the human ‘spirit’ that is embedded in authorship in the US. Both cases will be discussed in the next paragraph.
5.1.1.2 Standard of originality – modicum of creativity “Originality is the ‘bedrock principle of copyright’ and ‘the very premise of copyright law’.”197 The standard of originality in the United States is determined in Feist Publications v Rural Telephone Service.198 The Supreme Court rejected in this decision the famous ‘sweat of the brow approach’ and ruled that only skill, labour and judgement is not enough and that the work should constitute of more creativity: “the standard of originality is low, but it does exist.”199 The Court did more than only state the current standard of originality, it additionally determined that there was a “constitutional requirement of creativity”.200 The Supreme Court also ruled that “the requisite level of creativity is extremely low; even a slight amount will suffice”201 followed by “as a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity”.202 On authorship, the Court stated that “Copyright protection will only be given to those components of a work that are original to the author”.203 A
196 Bridy, ‘The Evolution of Authorship: Work Made by Code’ (2016) 39 Columbia Journal of Law and Arts 395, p. 399. 197 Compendium, section 308; Feist, 347. 198 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 362 (1991). Facts of the case: Rural had telephone directory and refused to license it to Feist. Feist – a publishing company specializing in a larger geographic range of telephone directories than Rural- then copied the information in Rural’s directory without permission and Rural sued for copyright infringement. Supreme Court ruled that Rural’s telephone directory was not protected by copyright and there was thus no copyright infringement. 199 Feist, 362. “Rural's selection of listings could not be more obvious: it publishes the most basic information -- name, town, and telephone number -- about each person who applies to it for telephone service. This is "selection" of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression.” 200 Daniel J. Gervais, ‘Feist goes global: A Comparative Analysis of the Notion of Originality in Copyright Law, (2012) 49 Journal, Copyright Society of the U.S.A. 949, p. 950; Margoni, The Harmonisation of EU Copyright Law, p. 89. 201 Feist at 345. Paul Goldstein and Bernt Hugenholtz, International Copyright: Principles, Law and Practices (3rd edition, Oxford, 2013), p. 192. Followed by: “The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying.” 202 Feist, at 363. 203 Gervais in p. 952 states that the Court found it is enough to fulfill the criterion of originality by making creative choices in the arrangement and selection of the data; Guadamuz states that the difference with the Infopaq- decision is that in Feist, the Supreme Court reckons that selection, co-ordination and arrangement of information is not an act that conveys originality, while the opposite is stated in Infopaq.
45 work can fulfill the standard of originality even if another person has also created it, as long as the second work is not a copy from the first.204 Some authors state that Feist did not invoke a new standard of originality, but restated the standard in the Trademark and Burrow-Giles case.205 In the Trademark case of 1879, the Court ruled that works are only protected by copyright if they are “the fruits of intellectual labor” that “are founded in the creative powers of the mind”.206 The author in the Burrow Giles-case of 1884207, was said to be “he to whom anything owes its origin; originator; maker; one who completes a work or science or literature”. Likewise, the definition of writing was “productions … by which the ideas in the mind of the author are given visible expression”. By defining the notions of author and writing, it is clear that the human spirit is embedded in both of the notions. In this context, it may be worthy of designation that while examining a work for originality, the time, effort or expense required to make the work will not be taken into account by the Copyright Office on whether the originality requirement has been met.208
5.1.1.3 Naruto The stance of the US courts on non-human produced works becomes clearer with the recent Naruto-case. In this case a photographer, named Slater, was taking pictures in the jungle in Indonesia when a macaque monkey took his camera and took multiple selfies. Slater published one of the pictures and stated to own the copyright to this picture. PETA took notice of it and sued Slater on behalf of the monkey, called Naruto.209 The District Court stated that the Copyright Act does not “plainly extend the concept of authorship or statutory standing to animals” and that the Copyright Office also agrees that works made by animals should not be protected by copyright.210 The Court followed by citing the Compendium, which explicitly states that works created by nature, animals or plants cannot be protected by copyright and then mentions a list of examples.211
204 Feist, at 345 and 346. Bridy, Coding Creativity, p. 13. 205 Gervais, p. 954. 206 Compendium, section 306; Trade-Mark Cases, 100 U.S. 82, 94 (1879). 207 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58-59 (1884). Facts of the case: first case to extend copyright to photographs. Concerned a picture of writer Oscar Wilde. The importance of this decision is used (daily) as a legal precedent to granting copyright to and not limited to pictures. 208 Compendium, section 310 en 310.7. 209 Naruto v. Slater, N.D. Cal. (2016), p. 1 to 3. PETA, plaintiff in the case, was of opinion that Slater, defendant, infringed Naruto’s copyright (sections 106 and 501 of the Copyright Act) by “falsely claiming to be the photograph’s authors and by selling copies of the images for profit”, the profits of the copies should go to Naruto. The plaintiffs stated that i.a. that the monkey purposely pushed the shutter release “understanding the cause-and- effect relationship between the shutter release, the noise of the shutter, and the change to his reflection in the camera lens”. Update: Naruto v. Slater No. 16-15469 9th Cir. (2018). PETA and Slater ended up settling the case before the Court could give its decision in appeal. The appellate Court decided not to grant their motion to dismiss the case and decided the case on the 24th of April 2018. The macaque ended up lacking statutory standing since the Copyright Act does not expressly authorize animals to file copyright infringements suits. 210 Naruto v. Slater, 2016, p. 5 and 6. 211 Compendium, section 313,2.
46 Its first example being “A photograph taken by a monkey”.212 The stance of the Courts in the US is however very clear: authorship means human authorship.
5.1.2 AI-generated creations
5.1.2.1 Mechanical process that operates randomly or automatically One of the aforementioned exemptions of copyright protection is: works created by a machine or mechanical process that operates randomly and automatically, without any creative input or intervention from a human author.213 In Chapter 4 already has been established that AI- programs can exhibit creativity and produce creative works. AI-programs do not have a repetitive or predictable outcome. It could be debated whether an AI-program really fits within the terminology that is being used by the Compendium: a machine that operates random and automatic. On the one side, an AI-program can be seen as a program that operates randomly and automatically. On the other hand, to say that there is no creative input or intervention from a human author is not correct. The developer has put intellectual labor and creative choices into the creation of the AI-program. However, from the wording of the provision, it seems that it is likely to incorporate also AI-generated creations. The interesting part, and the follow-up ‘criterion’ is that the work should have creative input or intervention from a human author. This will be discussed in the paragraph below.
5.1.2.2 Enough creative input? In the words of the Copyright Office: if a human being did not create the work – the work is not protected by copyright. This entails that AI-generated creations which cannot be attributed specifically to a human being, fall into the public domain. However, that a work should be attributed to a human being seems to leave enough room to conclude that it could allow certain AI-generated creations, providing that there was enough input from a human being in the work. Thus, there should be some creative input or intervention from a human author. Some questions are in place. Such as, what is the amount of (intellectual) human labor that would be enough so it can be attributed to a human author? What can be seen as enough creative input or intervention from a human author? And if it is enough, who could be the human being attributable for making the AI-generated creation? Programs like these are becoming more capable and sophisticated and require less human intervention, which in its turn results in a more autonomous process with less input from a human being.214 CONTU stated in 1978 on this topic:
212 Compendium, section 313,2. 213 Nevertheless, the source code underlying the program may be subject to copyright as a literary work under the US Copyright Act. Hristov, p. 436; Computer Software Copyright Act, Pub L. No 96-517. 214 Hristov, p. 438.
47 “Thus, it may be seen that although the quantum of originality needed to support a claim of authorship in a work is small, it must nevertheless be present. If a work created through application of computer technology meets this minimal test of originality it is copyrightable.”215
Simply, it comes down to this: if there is no human author attributable for the work, the originality standard is not fulfilled and the work will not be protected by copyright. The work then falls within the public domain. Taking into consideration that an AI-generated creation is made almost autonomously, it is doubtful whether either the user or the developer has sufficient input. Thus, whether a human author is attributable for the creation of an AI-generated work is difficult to answer. Consequently, the question is raised: what is ‘attributable’ enough? Is creating the program enough input from a human author? The legislation, jurisprudence nor literature do not give any clear handles as to what would be considered enough. Bridy states that the US courts see authorship as purely human. There always seems to be some form of “reference to human genius or intellect”.216 Together with the Naruto-case, in which the District Court took the explicit stand that non-human created works cannot be protected by copyright, it seems that AI-generated creations will not be protected by copyright in the US.
5.2 United Kingdom The UK is one of the few countries in the world that has an explicit provision protecting CGW’s.217 In the Copyright, Designs and Patents Act 1988 a definition is given of a computer-generated work. A CGW is a work that “is generated by computer in circumstances such that there is no human author of the work”.218 The CDPA has incorporated such an exception to an all human authorship because they recognize the work, labour and/or creativity that goes into creating such an AI-program.219
215 CONTU Final Report, chapter 3, p. 45. 216 Bridy, The Evolution of Authorship, p. 398. 217 For example, Ireland. Section 2(1) of the Irish Copyright and Related Rights Act 2000 also refers to CGW. Copyright protection has been extended to computer-generated works and the of the work is the author who makes the arrangements for the creation of the work (subject to any employee presumptions which may apply). The definition of a CGW is as follows: "the work is generated by computer in circumstances where the author of the work is not the individual". Also, Japan, Dickenson states on p. 460: “in Japan an intellectual property task force is currently developing an updated legal framework in order to protect AI-created works from unauthorized use, and to ensure a fair compensation of the developers of AI systems”. The Robotics Report states that multiple jurisdictions [US, Japan, China and South Korea] have taken or are going to take a stance or regulatory action with regards to i.a. AI to provide for the need of legislation to take account of the rapid emerge of these technologies. However, it is not specified if this includes copyright. 218 Copyright Designs and Patent Act, section 178. 219 Guadamuz in WIPO.
48
5.2.1 Legal framework The approach of granting authorship for a CGW is incorporated in section 9(3) of the CDPA 1988, which states:
“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.”220
As mentioned before, the UK is one of the few countries in the world to protect CGW’s. Some countries were inspired by section 9(3) of the CDPA and incorporated a similar formulation.221 Summarized, for a CGW to qualify for copyright protection, the work must be a ‘literary, dramatic, musical or artistic work’, it must be ‘original’ and there should be a demonstrable person who took the necessary arrangements.
5.2.1.1 Works – literary, dramatic, musical or artistic Section 3 of the CDPA defines which works can be protected by copyright. The UK has a ‘closed list’ system.222 This means that the CDPA grants copyright protection to the eight categories of works that are mentioned.223 If the work of an author does not fall within one of those eight categories, it is precluded from copyright protection. However, only literary, dramatic, musical or artistic created by a computer can be protected by the CDPA. The work therefore needs to be literary, dramatic, musical or artistic.224 The owner of this copyright is the human (being) that makes the arrangements necessary for the creation of the CGW, this will be elaborated later. The term of protection is set out in article 12(3) of the CDPA, the copyright expires for a CGW at the end of the period of 50 years from the end of the calendar year in which the work was made.
220 Copyright Designs and Patent Act, section 9(3). 221 Guadamuz, p. 185. He refers to Ireland and almost the same wording can be found in i.a. Copyright Act 1994 of New Zealand s.5(2)(a) and the Copyright Act 1957 of India s.2(d)(vi). 222 Aplin and Davis, Intellectual Property Law, p. 55. 223 The categories are literary, dramatic, musical and artistic works; films; sound recordings; broadcasts; and typographical arrangements of published editions. 224 Copyright Designs and Patent Act, section 1. This means that the other two categories of works mentioned in the CDPA cannot be protected as a computer generated work.
49 5.2.1.2 Originality – sweat of the brow? In the UK, section 1(1)(a) makes clear that the work must be original to be granted copyright protection.225 The CDPA does not define what ‘original’ entails. The consequence is that the ‘originality’ requirement has been defined judicially.226 Copyright protection in the UK is namely seen as an economic right with an incentives-based approach that sees on the exploitation of a work, this in comparison to continental Europe which sees more on the personal rights and/or moral rights of the author and consequently has a more rights-based approach.227 Although, this does not necessarily say anything about the standard of originality in common law countries.228 Traditionally the UK has a low standard of originality, since it protects any work which is not a copy of another work and the creation of which involved some degree of skill and labor (or judgement/capital).229 In addition to this “skill and labour” test, the work also should not be a copy from another work. This has been established in a decision of 1916.230 The most crucial decision regarding originality in the UK has been the Walter v Lane case.231 The House of Lords ruled that the reporting of another one’s words gives rise to a reporter’s copyright so long as skill and judgement have been employed in the composition of that report.232 This was later confirmed in the Express Newspaper plc v News in 1990, where was judged that skill, labour and judgement was still the appropriate test for originality by copyright law in the UK.233 This has later been confirmed in a decision in the House of Lords.234 In a 2005 case it was again confirmed in Sawkings vv. Hyperion.235
225 There are three categories of works, but have different criteria in order to be protected by copyright. The other two categories – sound recordings, films, broadcasts and typographical arrangements – do not have the originality criterion. It suffices that they are not copied from another work. 226 Aplin and Davis, Intellectual Property Law, p. 73 227 Peter Ras, Auteursrechtrevolutie (Celsus, 2011), p. 15; Eugene Lau, ‘Originality in European Union Copyright Law’ (2015) 5 Southampton Student Law Review 46, p. 47; Andreas Rahmatian, ‘Originality in UK Copyright Law: The Old “Skill and Labour” Doctrine Under Pressure’ (2013) Springer, p. 5, “The underlying rationale for obtaining the property right of copyright is really a protection of the author’s investment in the production of the work against unfair competition, especially against a competitor’s free ride and his parasitical undercutting of the author’s expenses by unauthorized and cheaper copying.”. 228 Margoni, The Harmonisation of EU Copyright Law, p. 89. 229 Concise of EU Copyright Law, p. 15. 230 “Copyright Acts are not concerned with the originality of ideas … The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author.” University of London Press Ltd./University Tutorial Press Ltd., 1916 2 Ch.D. 601. 231 Walter v Lane [1900] AC 539. However, in that time the decision was made under the Copyright Act 1842, which did not contain the requirement of ‘originality’, this has been only a requirement from the Copyright Act 1911 on. 232 Lord Davey said at p. 552: “… a man shall not avail himself of another’s skill, labour and expense by copying the written product thereof”. 233 Express Newspapers plc v News (UK) Ltd. [1990] 1 WLR 1320. 234 Aplin and Davis, Intellectual Property Law, p. 76; Express Newspapers plc v News [1990]. 235 Sawkins v Hyperion [2005] 3 All ER 636, paras. 33 and 78.
50 Variants of the ‘skill, labour and judgement’ exists.236 For example, in the Ladbroke- decision, to fulfill the originality criterion, there needed to be “skill, judgement and labour”.237 Nonetheless, they must always be seen in conformity with the principle that the work should not be a copy of another work.238 In the aforementioned chapter, we have established that there is a uniform interpretation of the originality standard. However, there seems to be a discrepancy between the ‘sweat of the brow’ standard for copyright protection of the UK and the Infopaq-standard.239 The sweat of the brow- criterion does not require any form of creativity whereas the Infopaq-test does. In the Football Dataco decision, the ECJ held that significant labor and skill cannot be enough to obtain copyright protection if it does not express originality.240 The Infopaq-test now seems to be the standard test in the UK, this stems from a court decision in the UK: SAS Institute v World Programming. The High Court ruled that: “it is clear from Infopaq that the test should be applied in these circumstances to determine whether what has been reproduced in itself expresses the author’s own intellectual creation”.241 Nevertheless, the Infopaq-criteria were applied for the first time in the Meltwater-decision in 2010 and subsequently its higher appeal 2011. In the decision in first instance and later confirmed in the Court of Appeal, the courts held that the ‘test of quality’, test of originality, has been restated but not altered by Infopaq.242 Concluding, there is some ongoing discussion whether the Infopaq-decision has altered the sweat of the brow-standard of the UK. Whether or not that is the case, with the Infopaq-decision, the ECJ gave a uniform interpretation of the originality criterion and harmonized this concept throughout the EU. Since the UK is still a part of the EU for now, the standard of originality in the UK is the “own intellectual creation”-standard of the ECJ.
5.2.1.3 Who is the author The author of a CGW is the human being who made the arrangements for the creation of the work. It considers who should be the author of the work.243 In the case of an AI-generated
236 F.i. “capital”, “effort”, “industry”, “time, “knowledge” etc. Margoni, The Harmonisation of EU Copyright Law; Interlego v Tyco [1989] AC 217. 237 Ladbroke Ltd. v. William Hill Ltd [1964] 1 WLR 273. 238 Interlego: “copying per se however much skill or labour may be devoted to the process, cannot make a work original”. 239 Peter Ras, p. 12 to 15. 240 Football Dataco, para. 46. “the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains”. 241 SAS Institute. 242 Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] EWHC 3099 (Ch); The Newspaper Licensing Agency and others v Meltwater Holding BV and others [2011] EWCA Civ 890. Also in Temple Island Collections: the UK originality standard is in line with the in jurisprudence elaborated ECJ standard of originality. 243 Dickenson, p. 458.
51 creation, the question that rises is: who is the human being that made the arrangements necessary?244
5.2.2 AI-generated creations
5.2.2.1 Who made the necessary arrangements? There has been an explosion of new forms of AI produced works that were not envisaged while incorporating the CGW-provision into the CDPA. When that provision was drafted, there was little reflection on the reality of any form of AI technology.245 AI-generated creations are made with little to no human input, leaving the question: who is the “person by whom the arrangements necessary for the creation of the work are undertaken” and more specifically, what does ‘necessary arrangements’ entail?246 The Court of Appeal had to decide on the authorship of a computer game in the decision of Nova Productions, and declared that a player’s input “is not artistic in nature and he has contributed no skill or labour of an artistic kind”. Considering action case by case could be one possible solution to see who is the person that is meant by the CDPA.247 However, it seems that the CDPA regards the developer of the program as first owner.248 Dickenson states that looking at this decision, a way to approach who the necessary arrangements made is to look who the person is who used its skill, labour and judgement in that arrangement.249 The logical option would be that - and the provision includes the possibility that - arrangements can be i.a. creating and developing the AI-program. The creative work is done by the developer(s), the person(s) who created the program. However, in regard to more evolved forms of AI-programs which can learn and adapt on its own, can the developer of the program still be the person who took the arrangement necessary? Will the current provision for copyright protection on CGW’s not stretch out too far with AI- generated creations? With more advanced AI-programs that are making use of deep learning algorithms or ANNs, it could be a problem to view the developer as the person who took the necessary arrangements to create the work. AI-programs will adapt themselves and learn from experience, which can make it harder to attribute the works that have been created by an AI- program to the developer. Dickenson argues that it would be probable that the Courts in the UK will interpret the provision broadly in order to give effect to its provisioned intent. Therefore, it is likely that the person that is granted the copyright, is the person who created the AI-program.250
244 Dickenson, p. 458 and 459. 245 Ibid. 246 Copyright Designs and Patent Act, section 1. 247 Guadamuz in WIPO Magazine; Nova Productions v Mazooma Games [2007] EWCA Civ 219 248 Dworkin and Taylor, Blackstone’s Guide, p. 186. It is likely that just as with “films and sound recordings, the ‘producer’ will be regarded as the first owner.”; Dickenson, p. 458 and 459. 249 Dickenson, p. 458 and 459. 250 Dickenson, p. 458 and 459.
52 Clark and Smyth say about section 9(3) of the CPDA the following: "[I]n deeming this person to be the author, the Act makes clear that authorship is entrepreneurial rather than being creative in nature: a more neutral meaning of author would be the technical staff who collectively or alone enabled the computer to generate the work". Thus, it is safe to say that the developer(s) of the program is the person who the CDPA means who made the arrangements necessary. It will likely be the case that AI-generated creations will be protected by copyright in the UK. Who will/ should receive the copyright, whether that is user, developer(s) or both, is still an open question.251
5.4 Conclusion In this chapter, the legal frameworks of two countries have been analyzed that have a different approach on protecting certain works by copyright. The US takes a strong stand on a sole human authorship. Both the Copyright Office as the courts see a strong and undeniable link between authorship and humans. Therefore, non-humans, such as animals or AI-programs, cannot create works that can be protected by copyright. Nevertheless, it could be possible that if there is enough human input in the work, AI-generated creations could be protected by copyright. The follow-up question is then, what is ‘enough’? On the base of the approach of the Copyright Office and the Courts it seems that the only way a work can be protected by copyright, if it is mostly produced by a human author. If the AI-program’s input supersedes the human author’s input, the work will likely not be enough. AI-programs can almost autonomously produce works and learn from itself and its mistakes. AI-generated creations therefore will likely fall within the public domain. Authorship in US copyright law, means implicitly human authorship. The UK on the other side has a provision that sees specifically on CGW’s. Literary, dramatic, musical and artistic CGW’s can be protected by copyright, nevertheless there should be an author distinguishable that has taken the necessary arrangements. What ‘necessary arrangements’ exactly entails is not clear, though, it is likely that an AI-generated creation will be protected by copyright. However, the question remains, what arrangements of the developer and/or user would be sufficient to fulfill the ‘necessary arrangements’ condition of the CDPA? This is a question that, hopefully, will be answered soon by the UK courts.
251 A few interesting articles are the subject of this topic, see i.a.: Samuelson; Chiabotto; Hristov.
53
54 CONCLUSION
The aim of this thesis was to research whether AI-generated creations could be protected within the copyright framework of the Netherlands and the European Union and how the protection of AI-generated creations is regulated in the jurisdictions of the United States and the United Kingdom. Firstly, two approaches to AI and the current state of the art were discussed. The current state of the art showed that AI-programs are rapidly evolving and can create works almost independently. These programs are at this time still in need of a human user, whether it is to adjust some settings to get the desired result, or if it is to upload a picture and a certain style and get a new picture in that style. It could be a matter of time before these programs will create works autonomously with less and less help of a human being. Secondly, the question that was answered in the third chapter is whether AI-generated creations are worthy of protection. By researching the rationales of copyright law and drawing a parallel with AI-generated creations, the conclusion was that on the basis of the combination of three pillars: stimulating innovation, flourishing creativity and benefiting the society, these works should be protected. By protecting these creations, developers could be motivated to innovate and this could have a positive influence on the society. This could not only help develop the (niche)market of AI-programs that create art, but also the broader sector of AI. There exists some criticism on protecting AI-generated creations within the copyright framework, namely on the base that copyright requires human authorship. However, in my opinion, AI-generated creations should be protected by copyright. Thirdly, the copyright regimes of the Netherlands and the EU have been examined. For a work to be protected by copyright, it should be original. In i.a. legislation and jurisprudence has been established that the EU has a harmonized concept of originality. The criterion for originality is that the work should be an “author’s own intellectual creation”. A controversy is whether a program can exhibit creativity or is creative; in this thesis is substantiated that an AI-program can exhibit creativity and is not creative itself. There is a strong presence of human authorship in both the Netherlands and the EU copyright framework. In the Netherlands, the personal-stamp criterion explicitly states that a work should be the result of creative human labour and thus of creative choices which result in a creation of the human intellect. In Europe, the ECJ ruled in the Painer- decision that the work should reflect the personality of the author. Therefore, the fact that a work needs to be created by a human being is undeniable. It is however possible that an AI-generated creation is protected, but only if the personal stamp of the user or the developer is embedded in the result of the collaboration between human and program. Whether there is ‘enough’ personal stamp or creative human labor in the work, can require a case-by-case analysis. However, AI- generated creations are made with little to no human input. The role of the developer or the user is too small to fulfill the originality-criterion of the Netherlands and the EU. This implies that AI- generated creations cannot be protected within the copyright frameworks of the Netherlands nor the EU.
55 Fourth, the legal frameworks of the US and the UK have been analyzed. In the US, there seems to be an even stronger human cast over copyright than in the Netherlands and the EU. The US copyright Act does not require human authorship explicitly, however, the Compendium of the Copyright Office states that it will only register a work that is created by a human being. The Compendium also states that it will not register works that are made by a machine that operates randomly without any creative input and/or intervention from a human being. This leaves room for interpretation. A work can be protected if a human being had provided sufficient input and/or intervention. However, I established that this will likely not be enough to protect an AI-generated creation, the human actor is inevitably important in the process of creating a work. The strong human presence in copyright law became clearer with the recent Naruto-case, in which a District Court explicitly ruled that non-human actors cannot create works that can be protected by copyright. My remark on this approach of the US is that this could dissuade AI advancements in the art sector. These works will be released in the public domain and this may have an opposite effect for innovation and the development of creativity. On the other side, the UK has a provision designed specifically for CGW’s. AI-generated creations in the UK could be protected on one condition, if there is a person that has taken the arrangements necessary for the creation of the work. However, a question that can be raised is: who is the person who takes the necessary arrangements for the creation of the work? The CDPA seems to strongly hint at the developer, since it’s their intellectual labor and creative work that has led to the making of the program. However, the question remains, what are “necessary arrangements”? In my opinion, AI should be more taken into account in copyright. It is a new way of creating works, and there can be no doubt that programs like these can exhibit creativity. I definitely do not think that the human author should disappear from the scene. The developer of the program puts its intellectual labor and creative work in the process of creating such a program – which should be rewarded. The UK-approach towards computer generated works - and thus AI- generated creations – is an approach that I can support. It protects these works with copyright, and the human author is still very present. Guadamuz states on the UK-approach: “Moreover, a standard that allocates authorship to the person who made the necessary arrangements for a work to be made is consistent with existing law and case law. There is no need to change originality standards as such; we would only be creating an addendum that applies to works made by a computer.”252 By incorporating an addendum in the existing legal framework, AI-generated creations could be protected within the copyright frameworks of the Netherlands and the EU. However, some fundamental questions can be asked, such as, what the scope is of ‘necessary arrangements’. Maybe that question will be answered soon by the UK courts.
252 Guadamuz in WIPO Magazine.
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