As stated in our “Thought Leadership” document published in 2021, AI-created works of art and the notion of ownership and enforcement within copyright law are controversial issues worldwide.
Although there has been no new court decision or legislative regulation that could answer these questions in our country or around the world during the past year, the decision of The Review Board of the United States Copyright Office (“Board”) dated February 14, 2022, which includes evaluations on whether artificial intelligence can be the owner of the work, contains substantial determinations in this regard.
In the related dispute, Stephen Thaler, who works in artificial intelligence technologies, has applied for the copyright registration for the work named “a recent entrance to paradise”, whose image is presented below and created by the algorithm called “creativity machine”.
In his application, Stephen Thaler stated that the related work was created autonomously by the “creativity machine” algorithm, and it is a work created by the “work made for hire” doctrine, and that he filed the application by being the proprietor of the machine following the assignment declaration he submitted. However, in its initial examination, the United States Copyright Office (“Office”) rejected the application, stating that the relevant application did not meet the “human authorship” requirement sought for a copyright claim. On the other hand, Thaler requested reconsideration of this decision stating that it is unconstitutional to require a “human authorship” requirement for registration and that such a requirement is neither included in the law nor the case law.
In the subsequent examination, the Office again rejected these requests, reiterating its initial assessments and stating that Thaler did not provide evidence to prove that human-provided sufficient creative contribution to the relevant work or that the human intervention had taken place. Thus, the Office has also made it clear that it will not abandon its long-standing interpretation as “a work will only meet the legal and formal requirements to benefit from copyright protection when it is created by a human.” which has been adopted based on the US Copyright Law, Supreme Court and other court decisions.
Thaler filed a second request for the reconsideration, stating that the regulations regarding copyright already allowed non-natural persons to own works within the scope of the “work made for hire” doctrine and that there is also no obstacle to the application of the works created by computers. Therefore, he argued that the Office’s refusal grounds were based on old views that did not address current needs.
Evaluating this second request for reconsideration, the Board stated that the law protects the fruits of intellectual labour. The Board did not find these reconsideration requests acceptable, stating that the works created only by a machine or a mechanical process without a human author’s creative input or intervention cannot benefit from protection. Referring to the previous decisions, the Board underlined that no protection had been provided before for works created by non-humans such as animals or spiritual beings. Moreover, the Board stated that the “work made for hire” doctrine is not relevant to this file and that creating the work by a human is a must for this doctrine.
As a result, the relevant decision of the Board set out that, in accordance with the current regulations and case law in the USA, the nexus between the human mind and creative expression is seen as the most fundamental element for copyright, and it is not possible for works created without human creative contribution and intervention to benefit from copyright protection under the current legislation.
Although we see that the requirement for the owner of the work to be a natural person continues to be sought within the scope of the current regulations, the necessity of protecting the works created using artificial intelligence systems and the issue of what kind of protection this will be, continue to be discussed around the world.
As a matter of fact, the UK Intellectual Property Office has published a consultation and requested the opinion of the public until the date of January 07 2022, on the issues of copyright protection and authorship on the products created as a result of the technological developments in terms of the relationship between artificial intelligence and copyright law. Besides other questions, participants were asked whether the current regulation, which grants copyright ownership to the natural person who makes the necessary arrangements during the creation of the relevant work, responds to developments in artificial intelligence and carries a sufficient incentive mechanism.
Although the results of this consultation and regulations to come into force regarding this issue have not been shared with the public yet, even the fact that such consultation is being conducted indicates that the authorities are paying more attention to this issue and actions are being taken slowly to meet the ever-increasing need for regulation in this area.
In addition, the European Union Intellectual Property Office, which examines the usage areas and effects of artificial intelligence technology more closely in terms of rights arising from copyright, and evaluates the situation with 20 different scenarios, published the Study on the Impact of Artificial Intelligence on the Infringement and Enforcement of Copyright and Designs report in March 2022. In summary, the report stated that artificial intelligence could be used effectively during the exercise of these rights and to detect violations; however, this technology has technical limitations in itself, and even there is an increasing trend in terms of their use in acts constituting infringement, it brings concerns in terms of ethics, privacy and fundamental rights.
We will continue to follow the developments in this field, which no doubt will keep being on the agenda in the following years.