By, Lettisha L S
Perhaps John McCarthy could not have imagined the extent to which human thought would carry forward the concept when he coined the term “Artificial Intelligence” in 1955. Like bees to pollen, entrepreneurs have gravitated towards this curious concept for decades. Microsoft’s new venture: the recreation of Rembrandt Van Rijn’s artwork titled ‘The Next Rembrandt’ by an AI being a case in point. Its incredulous venture into formulating whisky with AI is definitely worth noting, also.[i]
Rembrandt was a 15th Century artist who has since then received much attention from artists world over for his portraits, especially his acute attention to expressions and facial details. This skill has until Rembrandt been scarce, if not non-existent. It has also been confidently stated that, since the artist’s demise very few, if any at all, has achieved such a level of scrutiny of the human features and inherent expressions. It is ironic that such a feat is now possible under the attention of a machine.
The workings of the software that achieved this feat were driven by data analysis. The software was fed with data such as the distance between the features of the faces in Rembrandt’s paintings; the proportions of the eyes, the mouth; the height of the portrait itself. To not leave out the height dimension a 3D print the portrait was scanned out using UV ink. The recreated version is yet to be unveiled officially. However, the result is a portrait eerily akin to the original, curators claim.
This news has been received by the tech world with a re-affirming buzz in the discussion of the growing possibility of data and algorithms, and more importantly, computer software capabilities. On the contrast, it has been received by the legal fraternity with a mixture of curiosity and skepticism. Concerns over increase in forgery have been flagged.
The author, however, is keener about the discussion revolving around the possibility of Artificial Intelligence (“AI”) receiving copyrights over a work that it has generated, such as in ‘The Next Rembrandt’. The article will discuss whether AI can be attributed legal personality, and if so, whether it can be granted copyrights and what standards it would have to satisfy the same.
Artificial Intelligence, as it was originally conceptualized to be, is achieving higher levels of autonomy because of more precise mirroring of human cognition, neural networks, etc. This fact is important for discussion.
In the above-discussed case, the computer software recreated the artwork upon analysis of various metrics of the artist’s artworks. Hypothetically speaking, if it had used the metrics to make a painting that was influenced by the techniques Rembrandt used rather than to recreate the same, it begs the question as to how its “authorship” is any different from a human being. This hypothetical situation is no longer as deviant from rationality as it might have been a few decades ago because there are now AI that can create their own musical compositions: Artificial Intelligence Virtual Artist (Aiva), by Aiva Technologies being a case in point[ii].
Interestingly, she has also been considered as a “composer” by the French & Luxembourg’s author rights society (SACEM) and owns copyrights under its name.
In the light of these groundbreaking developments, we must start reconsidering the jurisprudence of “person,” in order to explore the possibility of entities like Aiva becoming the norm, than the exception.
There’s a wrong understanding of the term ‘person’ which has made discussions to extend the personality to other entities rather difficult. For example, layman presumption of the term ‘person’ is that it will automatically include human beings[iii]. This is incorrect. Throughout history we see this presumption being thwarted: In the Constitution of Antoninus Pius, under the Roman law[iv], a slave was not ‘person’ and enjoyed no legal rights, he was considered a thing; and also in the concept of “civil death” seen under the common law[v], the Roman strict law[vi], French law[vii], and even the American law[viii]. Roscoe Pound roots this tendency to associate ‘person’ to human beings to natural law theory[ix]. Professor Gray adds on with a brilliant note that if the natural law basis is eliminated we are left with the distilled definition of ‘person’: “A subject of legal rights and duties.”[x] Salmond shares this view as well.[xi]
Therefore, we see the concept of ‘person’ is much more flexible than it is made out. However, not all entities are considered; lower animals for instance do not have legal personality, even though we see contrary case laws[xii].
In Feist Publications case[xiii] non-human copyrights were barred because copyright was for the protection of the labour of the “creative powers of the mind.” However, in the light of deep learning and reinforcement techniques that allow for autonomous AI, adept in finding its way without external instructions, it begs the question of whether AI has already met that criteria. Differing with Acohs Pty Ltd v. Ucorp Pty Ltd[xiv], AI is not the medium for the creative work, AI can now become the creator. The Turing test, among others, echoes the fact.
We end this section with the posit that the term ‘person’ being much more flexible, its extension may be a possibility in case of autonomous AI which have high levels of cognition and pass the standards of Turing test, such as Aiva. This certainly will have strong ramifications on legal landscapes, something nations will need to consider.
Copyrights: New dimensions
Even though legal personality may be attributed to AI, the firewall is still whether an AI will be eligible for copyright protection. Companies, considered a ‘person’ (de jure not de facto), can apply for copyright protection. The basis of this entity being able to be a copyright owner can be traced back to the Fiction theory and the Realist theory that Savigny, Salmond and other jurists have posited. However, one of the arguments against non-human entities being denied copyright protection was considered in the Monkey Selfie case[xv].
The dilemma was the jurisprudence of the copyrights, itself: A non-human entity has no use for the economic and moral rights that copyright confers, presently. Herein, we find our roadblock.
‘Modicum of creativity’ standard
The technical basis given preference, an AI can be a copyright holder. AI that pass the Turing Test and exercise autonomous functions can satisfy the “modicum of creativity” criteria. In Infopaq decision[xvi], the Court of European Justice (CJEU) had decided that the originality that must be the “author’s own intellectual creation.” The foundations of Aiva and other such AI is the neural networks which through reinforcement techniques, or other algorithms can achieve a level of autonomic thinking which is indistinguishable from human beings (Turing test). Aiva, an entity that studies classical compositions of Bach, Beethoven, and Mozart, for instance, to create musical compositions of its own cannot be any different from a piano player who does the same. Cognition is cognition is cognition.
Notably, copyright law has welcomed computer intervention in creating work through the inclusion of clause “computer-generated works”[xvii]. Notably, the Copyright Act of 1957 does not define it. However, in these cases the author is considered as the person “by whom the arrangements necessary for the creation of the work are undertaken”: the copyright attaches to a human being. But in the light of the autonomous nature of the AI, the human element would seem too far removed from the end product that it breaks the causation chain. For example, Aiva who studied music libraries and composes her own music, independent of dominant human intervention.
The article has tried to follow the breadcrumbs to a possibility that we might be looking at an evolution shaking the foundations of law; the extension of the term ‘person’ to autonomous AI. This in itself will have unimaginable consequences on every kind of law. Focusing on copyright law nations would have to reconsider their definitions of authorship, ownership and standards of copyright. However, the author concludes that she finds no basis in AI being conferred copyright if they cannot enjoy the fruit of labour like labour theorists envisaged. However, she finds no bar in copyright law bellying AI from copyright, technically.
[i] Alan Boyle, How Microsoft got in on the World’s first whisky formulated with AI, GeekWire (September 6, 2019).
[ii] Bartu Kaleagasi, A New AI can write Music as a human composer: The future of art hangs in the balance, FUTURISM (March 9, 2017), https://futurism.com/expert-self-driving-cars-will-eliminate-traffic-jams-by-2030.
[iii] ROSCOE POUND, JURISPRUDENCE 189 (1st ed., St. Paul, Minn: West Publishing Co., 1959).
[iv] CAPITANT, INTRODUCTION ՝A L’ETUDE DU. DROIT CIVIL 134 (4 ed. 1923).
[v] BLACKSTONE, COMMENTARIES 132 (1st ed. 1765).
[vi] SOHM, INSTITUTES OF ROMAN LAW § 35 (3rd ed., Ledlie’s translation, 1905).
[vii] French Civil Code § 25 (1804). See SAVIGNY, JURAL RELATIONS 112 (Translated by Rattigan, 1884).
[viii] In re Nerac, 35 Cal. 392 (1868).
[ix] supra n. 2.
[x] GRAY, NATURE AND SOURCES OF THE LAW 27 (2 ed. 1921).
[xi] DR. AVTAR SINGH, DR. HARPEET KAUR, INTRODUCTION TO JURISPRUDENCE (3rd ed., LexisNexis, 2009).
[xii] In re Dean, Cooper Dean c. Stevens (1889) 41 Ch D 552; Pettingall v. Pettingall 11 LJ Ch 176.
[xiii] Feist Publications v. Rural Telephone Service Company, Inc. 499 U.S. 340 (1991).
[xiv]  FCAFC 16.
[xv] Naruto v. David J Slater, 15-cv-04324-WHO.
[xvi] Infopaq International A/S v. Danske Dagblades Forening,  EUECJ C-5/08.
[xvii] § 178, Copyright Designs and Patents Act, 1988.
Image source: Photo by Antonio Molinari on Unsplash. Available at https://unsplash.com/photos/kJFzlWhFlnE