In an AI-driven world, should computers have a legal personality?

Intellectual Property (IP) and copyright law are of vital importance to the Irish economy and an excellent choice of specialisation for lawyers, Carol Plunkett of William Fry said last night at the first annual Law Society/Irish Music Rights Organisation (IMRO) copyright lecture, at Blackhall Place.

The fascinating and fast-evolving area of copyright law makes it an exciting time to be an IP lawyer, intersecting as it does with information technology law and data protection law, Carol Plunkett said.

Intangible value

Up to 80% of corporate value is represented by intangible assets, in essence, intellectual property assets (IPRs) such as patents, trademarks, copyright and designs.

And the 2019 copyright directive became EU law last year and must be transposed by the Irish Government into Irish law by June 2021.

This directive contains important copyright exceptions covering text and data mining, digital and cross-border teaching activities and the preservation of cultural heritage.

The aim of the directive is to modernise EU copyright law so that it can react to rapid technological development.

Disruptor

Law Society Adjunct Professor Mark Hyland, who delivered the main lecture, said that the printing press was the key disruptor which set in train the initial idea of copyright in printed works.

Prior to Gutenberg’s invention, books were copied by hand and therefore very scarce. Illegal copying was rare, prior to the printing press.

"Moveable type enhanced and increased the production and accessibility of the printed word,” said Dr Hyland.

The law of copyright first introduced by the 1710 Statute of Anne, gave the right to copy one’s own creative work.

This acted as an incentive to creativity and creation, by protecting it economically, under the law, but only gave 28 years’ protection.

Flexible

Copyright is a proven and flexible tool in protecting a diverse range of works, Professor Hyland said. Copyright protects such things as music, literary works (eg novels or screenplays) software and operating systems, paintings, photographs, dramatic works and the very broad group of works known as 'artistic works', which makes it economically very important.

And copyright confers both economic and moral rights, both to make money and to protect the reputation and creative integrity of the copyright owner.

Strong copyright laws are particularly important to Ireland as the second largest exporter of software in the world, he said.

Last autumn, the Irish Government ran a consultation process on the new EU Copyright Directive. The process covered Article 17 which addresses the perceived ‘value gap’ – the mismatch between the amount of money generated in favour of the online platform and the money that ends up in the pockets of the individual creators, such as musicians.

Since artificial intelligence algorithms now create extensively on computers, the question arises as to where the copyright sits, when there is limited human input.

“This is almost certain to become more complex, as artists use more and more artificial intelligence (AI),” Dr Hyland pointed out, forecasting an increased dialogue between copyright and technology – the internet of things, 3D printing, block-chain and robotics.

“IP stimulates and protects innovation and creativity in economic and cultural systems. AI, on the other hand, has actually allowed the creation of a lot of cultural goods."

Human creators

The crux is that AI is creating things but not by human hands, and copyright law was always designed with human creators in mind.

“That creates the problem,” said Professor Hyland.

“Are the copyright laws amenable to works created by non-humans, such as algorithms, machines and computers?” he asked.

“If not, what happens then?"

If AI-generated works are deemed to be free of copyright, then the said work could be reused by anyone without seeking permission.

Problematic

This is problematic for companies investing in AI and will probably have a chilling effect on investment in automated systems.

“There is a lot of case law that copyright cannot vest in non-humans,” he pointed out.

And US Copyright Office has declared that it will only register an original work of authorship if the work has been created by a human being.

Rulings from the US, Australia and the EU are not amenable to non-human copyright.

“If the copyright-AI relationship appears complex now, it is almost certain to become more complex as time passes, because AI tools are being used more and more often by artists," he said.

In addition, machines are getting better and better at reproducing creativity and it can be difficult to distinguish between human-generated and machine-generated work.

Sui generis copyright regime

It may be that there should be a new sui generis copyright regime for artificial intelligence, the audience heard.

Computers could have a legal personality, in an AI-driven world, and there is a worry that authorship could ‘slide over’ to machines and humans lose control of authorship.

Alternatively, there is an argument for assigning copyright to machines from the outset.

Yet this poses the question of how computers could be held liable for damages, and whether liability should attach to the programmer who inputs data.

Where human input is very minimal, should product ownership still reside in an individual, particularly where AI works are created by being fed pre-existing copyrighted work?

In some cases, an AI algorithm generates work where the human contribution is simply to push a button.

Muddle

The real legal muddle lies when original work is meshed into a new AI-generated creation. Often, courts have grappled with repeated small takings from different original works, with outcomes hinging on the ‘substantiality’ of the original fragments.

Copyright needs to remain a flexible tool to react to rapid technological developments, Professor Hyland concluded.

“In addition, copyright legislation needs to be future-proofed so as not to impede technological development. It is very important to create a symbiotic relationship been copyright and technology.

Symbiotic

“The more symbiotic the relationship, the better for everyone.”

Professor Alison Firth of Newcastle Law School said that IP and patents are an excellent tool for structuring transactions.

She said that it will be very difficult operationally if the UK diverges on copyright protection, with the UK Government having shown a lack of sympathy to copyright concerns.

Valuable 

She said it was valuable to follow the wisdom of previous judgments.

“My guess is that when things come to disputes, our judges will be open to follow along the lines that EU Member States are moving … but it requires the litigation to take place in the first place.

“It’s going to be a too-interesting time,” she predicted.

The UK could also gain a competitive advantage by how they deal with the ‘value gap’ and will seek to protect its own interests.

Reference was made to a law firm in Nova Scotia run entirely on robotic data-input and AI.

Ultimately, Professor Hyland said that a law firm made up of robots could never have the same charm and charisma as a law firm comprising lawyers!