Lawyer Monthly - November 2021 Edition

52 WWW.LAWYER-MONTHLY.COM | NOV 2021 INTELLECTUAL PROPERTY - CAN COPYRIGHT LAW ACCOMMODATE AI? The computing device – comprising hardware and software – has to be put together, to a greater or lesser extent – through human intervention – the device cannot (for the time being at least) create itself. It is this that presents the fundamental problem for copyright law. The relevant provisions of the Copyright Designs and Patents Act 1988 (“CDPA”) are: S 11 (1): Subject to certain exceptions (which are not relevant here), “the author of a work is the first owner of any copyright in it”; S 9 (1): The “author, in relation to a work, means the person who creates it.” S 9 (3): “In the case of a literary, dramatic, musical or artistic work which is computer generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” S 178: “”Computer-generated”, in relation to a work, means that the work is generated by computer in circumstances Having been involved with copyright law for more years than I care to remember, I have always been impressed by the ability of copyright to adapt to new technologies and provide the necessary level of protection to encourage creativity and entrepreneurship. However, I wonder if copyright has met its match in trying to accommodate artificial intelligence (AI). I have doubts as to whether copyright law (like patent law) can protect “non-human intelligence” within the confines of English law as it currently stands. There are many definitions and descriptions of AI, but one good description is: “AI leverages computers and machines to mimic the problem solving and decision- making capabilities of the human mind” (IBM). In essence, it is the combination of computer power and algorithms with data sets to provide solutions to problems, make recommendations or reach conclusions. Many of us do not realise how pervasive AI is in our lives already, including speech recognition, facial recognition, chat bots and recommendation or comparison engines, to name but a few. such that there is no human author of the work.” With a good degree of foresight, the draftsman behind sections 178 and 9 (3) clearly anticipated that computers or other machines could be developed which, following the arrangement of the computer hardware and software by a human, would be able to create a work, without further human intervention. However, section 9 (3) brings us back to the point that the author has to be a “person” and so, under English law at least, an AI machine cannot be the author and so cannot own copyright in a work. Without wishing to stray into the field of patents too much, we have had decisions both in the UK and the EU regarding a device (DABUS) created by Dr Stephen Thaler. In patent applications, Dr Thaler claimed that the DABUS machine was the inventor. The UK 1 and EU courts rejected this assertion, based on, in the UK, section 7 of the Patents Act 1977, which provides that a patent for an invention will be granted primarily to the inventor. An Can Copyright Law Accommodate AI? The core concept of copyright law is to protect the creators of intellectual property – but what happens when the creator is a machine? Below, Peter James examines the position of artificial intelligence in copyright law and whether or not an AI can be said to “own” its creations.