Artificial intelligence has limitless potentials, but if it creates a piece of art, who is the author and can this work be protected under copyright laws?
In 2013, industrial band Nine Inch Nails released “Copy of A” as a second single of the album “Hesitation Marks”. The track is on the concept of copy, that is rather picturesque in a time when digital files can be copied without limits and any visible decrease in quality.
Recently, analysis of large quantities of data relating to old creative works, digitally copied and reproduced by way of complex systems of artificial intelligence, can transform machines into creators and authors. How is this possible?
???? The portrait of Edmond de Belamy made by an AI system
Let’s begin from a very recent fact. In late October 2018, the portrait of Edmond de Belamy, a gentleman with a black suit, was sold for 432,500 US dollars. This may not seem an attention-grabbing piece of news, since this work looks basically like a standard portrait from the 18thor 19thcentury. Moroever, the clearing price is not that high, considering that the highest price ever reached at an auction is 450 million US dollars, paid by the Saudi prince Bader bin Abdullah bin Mohammed bin Farhan al-Saud for Leonardo’s Salvator Mundi.
Actually, the sale of the portrait of Edmond de Belamy has been sensational not for its own features, but for its author’s. Indeed, such work has been created by a complex system of artificial intelligence (AI) called GANs (Generative Adversarial Networks) – briefly and journalistically known as an algorithm. The French collective Obvious developed such technology, that was fed with data about 10,000 portraits from the 15th to the 19th Century and, as a result, made the auction-breaking work.
©️ Can artificial intelligence be deemed to be an author under copyright laws?
Leaving aside ethical and philosophical questions on the role of the algorithmic artist – someone wonders if still this is really art – several legal challenges clearly arise here. Can a creative work made by an artificial intelligence system be protected under current copyright law?
As is widely known, copyrighted works must be original. Such requirement prevents an algorithmic work from access to copyright protection, since originality is eminently deemed a human feature. And yet such requirement is fundamental for both the main legal systems of the Western legal tradition – i.e. common law and civil law.
- Member States of the EU unanimously link originality to individuals. For example, under art. 8 of the Italian Copyright Law,
“he / she is considered the author of the creative work, unless proven otherwise, who is indicated therein as such in the forms of use, that is, it is considered as such in the performance, execution, representation or radio-diffusion of the work itself.”
- At EU level, the originality standard has been subject to limited harmonization, since EU directives generally provide that softwares, databanks and photographs enjoy copyright protection only where they are their
“author’s own intellectual creation.”
- Also, recitals 9 and 11 of the InfoSoc Directive undoubtedly set out that the standard of copryright originality is purely a human intellectual creation and
- Similar conclusions are relevant for the US scenario. Indeed, according to the landmark Feist decision of the Supreme Court, copyright law only protects
“the fruits of intellectual labor” which “are founded in the creative powers of the mind.”
Clearly, both legal approaches exclude machines and therefore artificial intelligence from the notion of authorship under copyright laws. But is this enough to preclude IP protection for such kinds of works? In the next post I’ll dwell on this topic.
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