In the latest article our Managing Partner Kostyantyn Gamkrelidze and Junior Associate Kateryna Golovanova explore the opportunities of today’s rapidly developing Artificial Intelligence as well as its interaction with copyright. They analyze how neural networks affect the processes of creation, protection and use of intellectual property in different countries of the world.
Artificial Intelligence (AI) is rapidly penetrating various areas of people’s lives, including daily activities and content production, which raises an urgent question: can AI be considered the author of inventions and, accordingly, can the latter be granted legal protection?
INTERNATIONAL CONTEXT
The issue of copyright for AI works is extremely relevant but, unfortunately, remains not covered by special legislation. The U.S. Supreme Court decision in the monkey selfie case (“Naruto v. David John Slater”), which denied attribution to an animal photo (because it was taken by an animal, not a human), highlights this issue. Arguing its refusal, the Court noted that only a person has the right to apply for the protection of his rights. From this, however, it can be understood that AI is also not subject to intellectual property rights.
Legislation and court precedents indicate that “copyright” applies only to works that are the result of human activity, and the term “author” itself is exclusively the author’s own. The UK Supreme Court recently ruled unanimously that UK patent law does not allow AI to be named as an “author” in a patent application. Its verdict was the final in a series of rulings in which domestic courts in the United Kingdom and the UK Intellectual Property Office (UKIPO) considered whether AI could apply for a patent in their jurisdiction, confirming that the author of such an application could only be individual.
In such a case, the question arises: can a person claim to own “copyright” in works authored by AI?
The US Copyright Office also recently considered this issue, and provided instructions for registering “artificial works”. They clearly state that only a person can claim copyright protection, therefore, under this approach, protection extends only to those elements of the work that are the result of a person’s work.
The legal status of AI works is still under development. As of now, defining the boundaries between the technological process and the owner of the work remains a key aspect of the copyright protection discourse, so it is important to continue discussing this topic and improve legal mechanisms.
In our opinion, it is also interesting how the US law will treat patent applications in which it will be indicated that the AI significantly influenced the conception of the work or its implementation in life (i.e., whether the possibility of indicating the AI as a co-author of the work will be considered). The U.S. Patent and Trademark Office is expected to provide comprehensive information on this situation in its AI manual by February 2024 based on Joe Biden’s Executive Order (EO) on Safe, Secure, and Trustworthy Artificial Intelligence (14110) issued on October 30, 2023.
In addition, it is important to note the other side of the mentioned issue – the granting of copyright for a work created by AI to the person who is the developer (or owner) of the program with which it was created.
The UK became the first country where such an approach was enshrined at the legislative level. The law passed in 1988 began the practice of allowing companies to maintain their technology and profit from such investments.
DOMESTIC PRACTICE
Ukraine also expresses interest in legal protection of works created by AI. In our legislation, the issue of authorship is regulated by the Law “On Copyright and Related Rights”. The main feature that characterizes a work as a result of the intellectual creative activity of the author and reflects the creative decisions made by the author during its creation is the originality of the work. Therefore, the results of AI work cannot be considered original and, accordingly, are not protected by copyright.
In Ukraine, the practice of Great Britain is used – the copyright for the result of AI work belongs to the person who created the program. According to Ukrainian legislation, the subjects of a special kind of right (sui generis) to non-original objects generated by a computer program can be persons who own property rights or who have licensing powers:
The topical issue of legal protection of AI as the author of works requires a comprehensive approach at the international and national levels. Ukraine, together with the international community, should consider the possibility of introducing clear norms and legislative changes to ensure legal protection of AI, which will also apply to its owners.
In addition to the British model which is designed to stimulate innovation and make AI-related changes to current legislation, the Cabinet of Ministers of Ukraine is considering various options for implementing legal regulation of AI in Ukraine.
Therefore, the Ministry of Digital Transformation of Ukraine identifies three possible directions for the development of regulation:
Securing the legal status of AI can become a key aspect of technology development in various fields, but achieving this goal requires cooperation between countries, scientists and human rights organizations. And although the implementation of EU legislation in Ukraine may be accompanied by technical and institutional difficulties, an important aspect is that it is the legal and regulatory norms of the EU that should underlie the development of changes to Ukrainian legislation.