Artificial intelligence is already being used to generate works in music, journalism and gaming. However, many argue that these works could in theory be deemed free of copyright because they are not created by a human author.
While conferring copyright in works generated by artificial intelligence has never been specifically prohibited, however, there are indications that the laws of many countries are not amenable to non-human copyright. In the United States, for example, the Copyright Office has declared that it will “register an original work of authorship, provided that the work was created by a human being.” Further, in Europe, the Court of Justice of the European Union (CJEU) has also declared on various occasions, particularly in its landmark Infopaq decision (C-5/08 Infopaq International A/S v Danske Dagbaldes Forening), that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.”
In countries like Hong Kong (SAR), India, Ireland, New Zealand and the UK, authorship of works created using AI technologies is conferred to the creator of the program. In India, Section 2(d) (vi) of the Copyright Act, 1970 lays down that in cases wherein an artistic work is computer-generated, then the author of such work shall be the person who causes such work to be created. The usage of the term ‘person’ is specified as either a human being or an organization/association consisting of human beings as per the Indian jurisprudence with respect to IP laws. Therefore, since artificial intelligence is not considered as a person, even if AI creates a copyrightable work, the protection for such rights shall be conferred on the person causing it to be made and not the AI system.
To date, there is only one proper case regarding the interaction between Artificial Intelligence framework and trademarks. In the case of Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU (2014) the court has reprimanded Amazon for infringing upon the Lush trademarks. Amazon brought the keyword Lush and whenever the word “Lush” is searched on Google it redirects the customer to the Amazon website. Even if the Lush word is searched on Amazon’s website, the AI of the website is suggesting related products to the lush products but not exactly the Lush products.
The United States Patent and Trademark Office (USPTO) is now calling for comments on how to treat AI-related applications. In India, under the Trademark Act, 1999 the entity owning a trademark is not specifically defined. However, a registered proprietor under section 2(v) and registered user under section 2(x) has been defined as per which only a person can register a trademark or be a registered user under the Act.
In a nutshell, the complexity of legal issues surrounding the grant of inventorship to AI technologies is going to increase as artificial intelligence gets more creative, wise and technologically competent. The distinction between IP created by a human and that made by a computer is only going to blur and diminish over time. In the words of Justice Beach: “We are both created and create. Why cannot our own creations also create?”