Can copyright survive artificial intelligence?

Written on 2 November 2017

AI has recently moved beyond the brute force triumph of mastering all possible moves in a game of chess to beat a grandmaster, to teach itself in just 3 days to play Go far better than any human simply by testing possible outcomes based purely on the rules.   Two students have developed a machine-learning program, GANGogh, able to produce original artworks of a standard that lay audiences might well not distinguish from works of a significant human artist.  And the ability of computers to write music – such as “Mozart’s 42nd Symphony”– had been well established even before machine learning techniques were developed.  Once AI is unleashed on the problem, we can anticipate truly original compositions.

This brings two questions into sharp relief. Should copyright protection be given to works that were independently created by a computer? And if computers can produce works equivalent in originality to much workaday literary, dramatic and musical material, does it make sense to confer copyright on such work even if it happens to be produced by a human?

Both questions depend upon the rationale for conferring monopoly rights as a reward for creative work in the first place. Two unrelated justifications can be applied. The “sweat of the brow” theory sees creative work as entitled to property status equivalent to physical work and informs the common law countries’ approach to copyright. The alternative, civil law approach sees copyright as the rightful reward for an author’s artistic expression of his or her unique personality and perception.

Neither theory really justifies giving monopoly protection to the work of a machine. Without extreme anthropomorphism, unless and until we reach the point where AIs are self-determining in what they choose to do, it is hard to argue that a machine requires monetary reward and legal rights of control over its outputs, in order to produce more work.  Still less can an AI’s output be characterised as an expression of personality – at least, not until AI achieves the level of HAL 9000, and possibly not even then.

Does either theory justify continuing to confer copyright on human-authored works of no greater originality than those produced by the machines? Here, at least, we have a clear answer.  The sweat of the brow principle has always been applied without differentiating between great works and those of modest or little value; the courts have never set themselves up as arbiters of artistic worth.  And the expression of personality, too, can be seen in works of limited artistic value as much as in masterpieces.  Accordingly, creative humans can legitimately expect to continue to be rewarded in copyright.

But for most now toiling creatively in the commercial, as opposed to the fine art, space, the continued availability of copyright in itself it may not be of much help. The real concern is whether economic and other factors will mean that, in years to come, the market for many of the relatively anodyne copyright works such as those currently used in packaging, reporting and advertising is substantially taken over by AI-created alternatives.

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*This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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