5. Dezember 2019
Ann Sofie Benz, VISCHER AG

Copyright in the Age of Artificial Intelligence

Copyright law aims at creating an incentive for the creation of works of literature, art and science. But what if the author or artist of such works is a machine? In the age of artificial intelligence (AI), this question is of paramount importance.

In 2016 – almost four centuries after the death of artist Rembrandt van Rijn – a new Rembrandt work was unveiled to the world, known as the Next Rembrandt (see https://www.nextrembrandt.com/). The painting has confusing similarity to the actual works of the painter, yet contains not one brush stroke of a human being. The Dutch bank ING had sponsored the project, which brought together a team of data scientists, art historians and engineers to analyze Rembrandt’s painting techniques and style and to transfer that knowledge into the software, which could generate a new Rembrandt painting using the latest in 3D printing technology. Considering all the work and the number of individuals involved, one cannot but wonder who the creator or author is and who owns the copyright of the Next Rembrandt. Is it the sponsor of the project, the developers of the software, or the engineers who analyzed the paintings and fed the software?

The question arises as to whether there is a need for action in the AI context in the form of a digital update of copyright law(s) or supplementary legal norms or if the existing laws provide for sufficient parameters to assess the protection of AI works.

While the platforms and analytic algorithms used for the Next Rembrandt project might well be attributable to individuals as authors, the product generated by AI may eventually not have such direct and provable links to particular individual contributions. The algorithms and software at work, may actually take creative decisions without any human interactions (see https://www.wipo. int/wipo_magazine/en/2017/05/article_0003.html). There are different possible approaches to deal with the copyright aspect of works that contain no or only minimal human contributions. In any event, the question is whether computer generated art fulfills the basic requirements necessary to receive copyright protection. For instance, the U.S. Copyright Office will only register original works of authorship if the work was created by a human being (see for the famous «Naruto» «monkey selfie» the decision by the United States Court of Appeals of the Ninth Circuit of April 23, 2018, https://tinyurl. com/y2kx9rz9). A similar tendency can be observed in the practice of the Court of Justice of the European Union, which has declared on various occasions and particularly in its landmark Infopaq decision (see the decision under https://tinyurl. com/y2qye2jl) that copyright protection only applies to original works which reflect the «author’s own intellectual creation». Swiss law is not explicitly unamenable towards non-human copyright. However, while computer programs are specifically mentioned as protected works under Swiss copyright law, their output is not necessarily protected by the letter of the law – today and even after the upcoming revision.

With AI on the rise, the way in which the law addresses the variety of machine-driven creativity will likely have significant commercial ramifications.