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26 October 2022
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AI art raises questions about copyright

Want to have an impressionist painting of Thai temples in the style of Claude Monet, but you cannot afford to commission an artist? Let artificial intelligence (AI) do the work for you.

Then you change your mind and want to have the painting in a surrealistic style. A piece of cake. Type what you want in the message field of the AI art-generating program. Press the button. Voila! You get what you wanted.

Thanks to rapid technological advancements in artificial intelligence, the digital world is now offering a wide array of AI programs to generate high-quality visual art at your fingertips. Similarly, the AI music generators work like magic.

Since these AI technologies bring huge commercial benefits, they raise several copyright questions. For example, who owns the works you told the AI art generators to deliver, you or the program developers? And since the output is generated by AI algorithms, not humans, is the AI-generated art and music copyrightable at all?

Under copyright law, the creators can seek legal ownership if the works are original as a result of the creators’ labour, skills, judgement, and efforts. The aim is to ensure that people who create art, music, and literary works have legal protection to enjoy financial benefits from their creativity. Copyright protection will also encourage people to produce creative works for society.

Before the proliferation of AI art and music generators, the use of computers and software to produce creative works did not pose copyright questions because they were only the artists’ tools. They are equivalent to pens, paper or canvas. Copyright laws worldwide also require that humans must create original, copyrightable works.

Artificial intelligence nevertheless defies all these rules.

At present, AI art and music generators use machine learning algorithms to freely decide, process, and create what the users request without requiring human intervention. The users only tell the program what they want, and the algorithms will take care of the whole process to create art, prose, design, or music. In short, AI is no longer a tool of humans, but it can make decisions and create artistic works itself.

At present, several AI programs can generate works that fall under the copyright law, be they visual arts, literary works or music. For example, the highly popular Midjourney application only requires users to type what they want in the text prompt, and the algorithms will process its colossal database to deliver stunning images. Again, the question arises, are these AI-generated images copyrightable?

In 2016, a group of museum curators and researchers in the Netherlands unveiled The Next Rembrandt, a painting created by AI from thousands of Rembrandt’s works in its database. Meanwhile, DeepMind, an AI program from Google stunned the music world with its ability to create music from machine learning algorithms. While the number of AI art and music generators is on the rise, their works are still not copyrightable under the present copyright law that requires human authorship.

Although no countries have specific laws to refuse copyright to computer-generated artworks, the rulings from different organisations are against their legal protection. The Copyright Office in the United States, for example, insists human authorship is necessary for copyright claims. The US Supreme Court also ruled in the Feist Publications v Rural Telephone Service Company that the copyright regime seeks only to protect the “fruits of intellectual labour” from the “creative power of the mind”.

Meanwhile, the European Court of Justice ruled that copyrightable works must reflect the creators’ intellectual creativity. These rulings set the tone for other countries to prioritise human creativity. They also view AI as a threat to human artists, so computer-generated artistic works should not receive copyright protection.

If the creative work by machine learning should not receive copyright, what about the AI program developers? Shouldn’t they get the credit for creating programs that produce fantastic artistic works?

During the analogue era, it was absurd to ask whether a novelist or the penmaker should receive a copyright. The novelist, of course. Even in the digital age, the painters who use painting software to create their works will get the copyright, not the software developers.

But AI is fast changing the copyright landscape.

New Zealand, India, and Great Britain now have laws to give copyrights to the developers of AI art generators. The copyright law in Great Britain stipulates that the developers of AI programs to generate literary works, dances, music, or visual art are the legal creators and copyright holders, dismissing the principle of human authorship.

Such copyright protection for AI program developers will certainly give more incentives to invest in the AI industry.

Interestingly, most countries which support copyright for AI technology aim to be the global centres of AI technology and data-driven innovation.

In 2019, the International Association for the Protection of Intellectual Property, or AIPPI, carried out a survey with country members on copyright protection for AI. The responses were divided into two groups. One agreed with giving AI copyright protection for 25 years to support AI developers and investors.

The other strongly believes copyright should be awarded to original, creative works with human authorship only. The AIPPI resolution, meanwhile, reiterates the importance of human intervention for AI-generated works to be eligible for copyright claims.

The lack of global consensus on copyright for AI-generated works and the lack of concerning laws, however, will affect the investment in AI technology. Without copyright protection, anyone can freely use AI-generated works which hurt AI companies and their investment.

For example, AI companies might have produced original music with their expensive technology, but they cannot have any financial returns from their investment because anyone can use it freely and without limits.

Countries will inevitably have to put their heads together in order to resolve this problem and find the best way to create maximum economic benefits while giving strong incentives for more investment in AI technology.

Balance is key, however. While copyright policies must not take AI companies for granted, public access to AI-generated works and technology must not be dismissed.

The more the public has access to AI technology to produce computer-generated works, the more the country can save time and labour for economic productivity and growth.

Another challenge is how to differentiate the artistic works done by humans who use computers as a tool and AI-generated art. The answer is crucial because it will decide who is eligible to have copyright protection — humans or robots.

The AI age is here. Countries that want to catch the AI train like Thailand need a legal framework to govern AI so it equally serves the public, national economy, and business interests. Deciding on the copyright question is a perfect way to start.

Writer : Saliltorn Thongmeensuk, Ph.D, is a research fellow at the Thailand Development Research Institute and a lecturer at the Faculty of Law, Chulalongkorn University

First Publish: Bangkok Post on October 26, 2022

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