Could there be Copyright in AI Generated Works

A pink female AI robot reading

Is it really intelligence if it is artificial?


As technology becomes more advanced, the lines between human intelligence and artificial intelligence blurs. What really is intelligence? And can it truly be “artificial?”


The Cambridge Dictionary Online defines intelligence as “the ability to understand and learn well, and to form judgments and opinions based on reason,” while the Oxford Dictionary Online defines it as “the ability to learn, understand and think in a logical way about things; the ability to do this well.” The recurring theme here is learning, understanding and applying reason/logic. These are historically anthropic cognitive functions, with some animals displaying lower levels of these capabilities (even though, maybe higher than some humans… but that’s besides the point). With technological advancements, “artificial intelligence” has challenged this notion by replicating these cognitive functions.


How artificial is it?


In Machine Learning, neural networks, inspired by the structure of the human brain, are used to enable AI systems to learn from data and improve their performance over time. AI systems can learn to recognize patterns, make decisions, and even generate creative outputs. AI machines learn through algorithms and vast amounts of data, lacking the human capacity for intuition, emotional understanding, and creative insight.


Current AI systems (as far as we know) lack true consciousness, self-awareness, and an understanding of the world and how it functions (but to be honest, so do most of us!). They operate within predefined parameters and are only as good as the data they are trained on. AI systems may struggle with tasks outside their training scope and can exhibit biases, reflecting the biases in their training data.


The question is left unanswered about how artificial this intelligence is, considering how closely it mimics human intelligence, and how much closer it gets as technology advances.


Why does this matter in IP?


There are many reasons why AI would not be able to own IP based on current IP laws, laws of contract and ethical considerations etc. However, one of the main reasons is the lack of legal personhood. Since AI is not a natural person, it cannot own IP. Since AI is not capable of “independent creativity,” it cannot own IP.


With this in mind, does the creator of the AI own the rights? That would place too much of a burden on the creator. So then, should the person who prompted the AI own the IP? Well, is there enough creative output from the “prompt engineer” to make this feasible? Okay, so should the IP remain with the people whose works are being swindled? Well, in most cases, individual works from the input data cannot be identified or extracted from the AI generated output so, again, this is not feasible. Can anyone take the credit or is this AI creation now open source?


Bear in mind also, that IP Law is not just about who owns Copyright, Patent or Trademarks, but also about who has liability for infringement of Copyright, Patent and Trademarks. While it is important to figure out who should own the rights to a creation, it is even more critical to determine who holds the liability for an infringement of these rights.


The million-dollar question then becomes: If nobody owns the right to material generated by AI, who then would be responsible for the liabilities that occur when AI infringes on the IP rights of others?


I bet you though I was going to answer the question of whether AI could own IP, but now you are leaving with more questions than answers.


My thought, your guess is as good as mine!


My guess?: There will come a time when AI will be making this very decision, and I hope that by then, it is more intelligent than it is now.


Nicane Mayne – The Law Fanatic