How the “Intelligence” part of “Artificial Intelligence” Implicates U.S. and EU Copyright Law

This blog post was first published on April 7th, 2017. 

Artificial Intelligence (AI), according to Oxford Dictionary, is “the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.” According to Merriam-Webster dictionary, AI is “the branch of computer science dealing with the simulation of intelligent behavior in computers; the capability of a machine to imitate intelligent human behavior.

At the heart of both definitions of AI is the ability of a machine to “be human” by being able to imitate and carryout the mental functions of humans in the processes they are designated to perform. This concept plays an important role in Intellectual Property, as one’s “humanness” brings with it rights and protections associated with their intellectual works. Intellectual Property itself refers to , “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” Copyright Thus, the overarching question is this – if AI machines can imitate human mental functions, and thus are capable of producing, among other things, creative works, should their works be afforded Intellectual Property law protections, such as Copyright?

In a recent article written by Rhine Mohindroo for Alleywatch, this question has emerged regarding the output of AI machines and U.S. Copyright protections, looking specifically at the creative output of AI machines. From the point of view of U.S. Copyright law, works that lack human authorship are not copyrightable. While AI machines are not human, they possess human features, such as the ability to make decisions. Thus, the question then becomes, if an AI machine can make independent decisions int he production of creative works, why then would the creative work not be protectable under U.S. Copyright laws?

On the other side of the Atlantic, a motion was submitted by Members of the European Parliament (MEPs) earlier this year, calling on the European Commission to, among other things, “elaborate [on a] criteria for an ‘own intellectual creation’ for copyrightable works produced by computers or robots.” The basis of this specific motion is based on the fact that technological advances are enabling AI machines to be more human. In the motion, MEPs stated that, “thanks to the impressive technological advances of the last decade, not only are today’s robots able to perform activities which used to be typically and exclusively human, but the development of autonomous and cognitive features – e.g. the ability to learn from experience and take independent decisions – has made them more and more similar to agents that interact with their environment and are able to alter it significantly…”

The overarching questions posed in this comparative look at the views of AI’s legal rights in Copyright protections is: 1) whether an actual human is a necessary component of “human authorship” considering the fact that AI machines are being developed to have the ability to carry out the human processes in authorship; and 2) how will respective laws address the “intelligent” aspect of AI machines and their ability to create intellectual works, that would otherwise be afforded copyright protections if created by an actual human.


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