With the development of neural networks and the transformation of artificial intelligence (hereinafter - "AI") from a fashionable entertainment into an integral part of promising business projects, one is increasingly faced with contradictory statements on the need to change legal regulation in AI-related areas, primarily in copyright law.
However, the analysis of trends in lawmaking, judicial and business practice shows the preservation of the traditional conservative approach, the refusal to make any radically new, revolutionary decisions in a hurry, the need to develop within the existing legal paradigm.
Here are the main findings that confirm the stability of the current system of doctrinal views.
1. the AI is not an "author"
In continental law, including the legislation of the Russian Federation, the author is recognized only as a natural person who created the work or the developer of the program, as a result of the functioning of which such work arose.
AI cannot be recognized as the author of a work without fundamentally changing the current approach.
It should be noted that this is not a random "whim of the legislator", but a fully justified position, since the value and significance is not the recognition of someone as an "author" per se, but the solution of a whole set of issues related to the imposition of responsibility and granting certain rights to such an "author".
At present, there are no elaborated legal grounds for recognizing AI as a subject of creative activity; responsibility for the results of its activity should be borne by specific individuals or legal entities, not by the abstract AI itself, which is not yet equated with citizens. Besides, it is pointless to grant copyrights to the AI, because at the current level of development, it will not be able to exercise them anyway.
Of course, if we imagine some fantastic circumstances in which AI develops to such an extent that we have to recognize its manifestations as a "person", it will be necessary to develop some special system of its own responsibility as a "person" for its behavior. But for now, only entities that have rights and obligations arising from contracts and laws can be held responsible.
For example, the court, in considering IceTV Pty Limited's claim against Nine Network Australia Pty Limited HCA 14 (Australia, 2009) [1] denied copyright protection to AI. The presence of a human author as a prerequisite for copyright protection of a work was also confirmed by the decision of the US Copyright Office (2022)[2].
2. Works created by humans with the help of AI may be protected by copyright law
Under current copyright doctrine, an AI cannot create a copyrightable work by itself. But if a human author uses AI to create a work, that work will be protected by copyright.
Of course, protection will arise if the work is the result of the author's creative labor, but such labor when working with AI may consist in setting the task, formulating the conditions, selecting the results, correcting them, etc. In any case, the emerging judicial practice proceeds from the possibility of recognizing works created with the use of AI as objects of copyright.
This approach found application, inter alia, in the judgment of the People's Court of Nanshan District, Shenzhen, Guangdong Province (China, 2019) in the suit of Shenzen Tencent Computer System Co., Ltd. v. Shanghai Yingxun Technology Co., Ltd.[3]. The defendant used an article created by the plaintiff using AI and argued in court for the position that works created by AI were not copyrightable.
However, the court found that the Plaintiff's employees initiated the creation of the article, carried out the selection of source data, determined the task, template and style for the preparation of the article, on which the creation of the article depended. The court recognized that a work created as a result of human intellectual activity should be protected by copyright.
The situation, as it can be seen, is in many respects similar to the development of legal protection of photographs, which was based on the assumption that there was a creative component in the work of the photographer. At the same time, by the way, no one proposed to recognize the camera as the author of the photograph.
Thus, AI is not yet recognized as an author or co-author of a work created with its help. AI can only be recognized as a tool - a new, specific, high-tech tool, but still a tool used by people to create works. If a human being participates in the creation of a work with the help of AI, he/she can be recognized as the author of the work, provided that he/she made a creative contribution to the creation of the work. If a work is generated without human creative input, for example, by chance, it will not be protected by copyright: no author, no copyright object.
[1] Vasilieva A.S. To the question of the presence of copyright in artificial intelligence // Journal of the Court of Intellectual Rights. December 2022. Vop. 4 (38). С. 107-116.
[2] https://www.securitylab.ru/news/541057.php
[3] https://ru.chinajusticeobserver.com/law/x/2019-yue-0305-min-chu-14010/intro
Author of the article: Dmitry Ivanov
