ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY

CAN AN ARTIFICIAL INTELLIGENCE TOOL BE THE HOLDER OF INTELLECTUAL PROPERTY RIGHTS? A CONTROVERSY WHOSE DEBATE HAS JUST BEGINNING 

Edgardo Ettlin

¡Dime qué debo cantar,

oh, Algoritmo!

¡Sé que lo sabes mejor,

incluso, que yo mismo!

Por ejemplo, esta canción.

¿Qué algoritmo la parió?

Me pregunto si fui yo.

¿La elegiste o te eligió?

Jorge Drexler, ¡Oh, Algoritmo!

SUMMARY: I. Introduction - II. Can an Artificial Intelligence system or tool create? -III. Can a work made by an Artificial Intelligence instrument or tool be considered original? - IV. Can the AI ​​be considered as “author”? - V. Can a work created by Artificial Intelligence be protected by intellectual property rights? - VI. Who owns the intellectual property rights of a creation made by artificial intelligence? - VII. Who can be claimed for the infringements noticed in works whose creation artificial intelligence was used, or were created by artificial intelligence? - VIII. By way of closure

 

I. Introduction

Classical Law conceives Intellectual Property as a personality right, within the framework of property rights. Along these lines, we have postulated that “above all, Intellectual Property as a product of intelligence is something of the human”, and that intellectual property rights are first generation fundamental human rights (1). Moreover, if the different intellectual property rights are species of property right and if this is by definition one of the main human rights, it would seem a logical conclusion to affirm that intellectual property rights are among the fundamental rights of an individual.

The Constitution of the Oriental Republic of Uruguay in its article 33, as well as art. 491 subp. 1 of the Uruguayan Civil Code, provide that the “author's right ” will be protected by Law, as well as that the productions of talent or ingenuity “are the property of their author ”. The idea of ​​an author almost instinctively evokes us to think of a Human Being. The expression “nationals of countries of the Union” that use, for example, arts. 2, 3 and 6.1 of the Paris Convention for the Protection of Industrial Property (or Paris Convention), arts. 3 to 5, 6bis to 9, 11 to 15 and concordant of the Berne Convention for the Protection of Literary and Artistic Works (or Berne Convention), and arts. 6 and 7 of the WIPO Copyright Treaty (WCT), basically refers to individuals or people.

We usually associate intelligence and talent with humanity. Any product or work of his talent and intelligence, whether it is the creation of a natural person or a legal entity as an "ex lege" unit of a group of natural persons, is by definition human. 

But what would happen if that intelligence or that talent were not human? What would happen if a work came from a non-human - non-biological activity? How would we consider that creation?

It is not the purpose of these disquisitions to analyze what would be the nature of the productions of biologically non-human beings, such as animals or eventually aliens (if one day it is verified that the latter really exist). We wonder how the authorship of a non-human intelligence developed by technology, through a machine, a program, an application or algorithms by way of example, should be assumed. Technology that has become known as “Artificial Intelligence”. We could define provisionally and for the sole purpose of this study (“omnia definitio periculosa est”) Artificial Intelligence  (hereinafter also interchangeably  “AI” ) as the process of cognition, reasoning, determination, and action elaborated by technological systems .

In principle, artificial intelligence is the result of human programming and operates on models created by human beings. But that one is advancing; many of these instruments are “learning”, training, adapting, exchanging, reprogramming (the technological details would exceed the scope of our work). Even in some cases they are evolving towards being able to develop or design their own processes, such as  technologically self-controlled, self-perfecting and self-recreating thinking, solving and acting, who could their own decisions. Under these conditions, AI would no longer be conceivable only as a simulation or as an imitation of human intelligence: we are referring to artificial intelligence as an intellectual and behavioral capacity “per seipsa”, with its own initiative and no longer linked to any instruction or intervention. human (even though it may have certain instructions, commands or startup parameters of its own).

If an artificial intelligence instrument or tool could know, think, solve and act by itself, it could be understood that it can also elaborate, produce by itself. This idea forces us to consider, in the field of intellectual property, certain questions:

1. Can an AI system or tool “create”?

2. Can a work made by an Artificial Intelligence instrument or tool be considered “original”?

3. Can the AI ​​be considered as “author”?

4. Can a work created by AI be protected by intellectual property rights?

5. Who owns the intellectual property rights of a creation made by artificial intelligence?

6. Who can be claimed for the infringements noticed in works whose creation was used artificial intelligence, or were created by AI?

We will try to provide some answers, which will necessarily be provisional, debatable and open in a problem that is just beginning to take shape in the world of Law.

 

II. Can an Artificial Intelligence system or tool create ?

To address this issue, we must distinguish whether the work was created by artificial intelligence on its initiative and without the need for instructions or descriptions, from the work created with artificial intelligence as an extension of the human will whose process and even its result (that is, that is, if it is maintained or if it is intervened) do not cease to be alien to it to a greater or lesser extent. In the first case there is no human intervention except in the contribution of some concepts or ideas from which the artificial intelligence tool develops the work. In the second, AI is always an instrument at the service of human creation.

The position adopted for or against considering an artificial intelligence system as “author” is, seeing in the specific case that is analyzed:

a) if the artificial intelligence processes through the intervention of a human being to create the work (creation with AI), or;

b) if the AI ​​generates the work by itself and autonomously (creation by AI).

It all depends on analyzing how AI performs in the inventive or creative process.

If we think that artificial intelligence is only an instrument that works for the person or uses inputs introduced by the person, who ultimately is the one that will select the product that is produced, facilitating its creation, it is already an operational extension of the conception of an individual and therefore, the author is a human being. To the extent that the initiative and conception of the work is human and the AI ​​tool is used to facilitate the production process, the person can be considered as the creator, regardless of whether or not the final work generated was in its result modified by it.

Likewise, to the extent that it can be verified that, although there was some activity independent of the artificial intelligence system, there was also some human intervention and this factor was not absent in some way (for example in the selection of devices, in the design and prior determination tasks), such an intervention ultimately shows a human creator, and it could be argued in principle that there are no reasons to depart from classical norms and solutions (2).

However, this should not be taken as an immovable criterion.

Because despite this, it can be said that the fact that a human being offers the artificial intelligence system the parameters or characteristics in which the work must be carried out does not necessarily make the person the author, to the extent that the ideas, inspirations, procedures, methods of operation or mathematical concepts themselves are not protected by copyright (art. 9.2 of the Agreement on Trade-Related Aspects of Intellectual Property Rights -indistinctly “TRIPS”-; art. 2 of the WCT) (3).

In terms of literary artistic creation, there are already various artificial intelligence tools and applications available to everyone (in the case of “Midjourney”, “Wombo”, “Dall-e” and many other instruments), which allow the creation of portraits, images, “comics” and literary works, available today within everyone's reach, based on certain ideas, criteria or commands given by the user. For example, to create a painting a person indicates that it is from “a city”, "in futuristic style", “in Gothic mood", “with a somber color palette” and “in the style of drawings of the '70s”. The tool itself creates and places the images, establishes and adds the colors, defines a design and from it a final product emerges. Who is the creator in this case? The person who gave the bases that the image should have? The artificial intelligence tool that, using its resources and making its decisions, issued a final work?

Now, if the AI ​​can create without human participation or intervention in the process of generating the work, we should think about reputing it as an author, regardless of its non-humanity or not.

In our opinion, everything depends on how the case and its circumstances are considered, and how important the human intervention or the AI ​​tool was in the result of the work.

In the case “Tencent vs. Yingxung Technology Shanghai”, it was analyzed the assumption of an AI program called “Dreamwriter” created by Tencent who writes about Business and Economics, and who had produced an article, a report on the Shanghai Stock Exchange on August 20, 2018, which had been copied by defendant Yingxung on her website. Tencent sued Yingxung for reproducing that article without his permission. The Judgment of the People's Court based in Shenzhen of the Nanshan District, Guangdong (China), did not affirm that the work created by AI had been made by the Dreamwriter tool, but that it would have been the product of artificial intelligence developed by the team of Tencent that acted as a tool for the human being: it was considered that the disposition and selection of the creative team of the plaintiff in data entry, the establishment of activation conditions, template and selection of corpus styles in this case belonged to intellectual activities of people belonging to the company that were directly related to the expression specific to the item in question. The Court found that the article in question was a work created by the general intelligence of multiple teams and multiple divisions of labor chaired by the claimant, and its creation process derived from the selection and custom arrangement of the creator that reflected the needs and intentions of the claimant as a whole, for the product of which it took external responsibility. Therefore, the article in question was considered to be of the legal person, as a work created by the claimant. Which indicated that the article in question should be taken as written by her. Therefore, in the absence of evidence to the contrary, this court determined that the item in question was the work of a legal entity created by the plaintiff (4).

The United States Copyright Office (USCO) recognized on September 15, 2022 as the author of the comic or graphic literary work “Zarya of the Dawn” to Kris Kashtanova, not to the artificial intelligence application “Midjourney” that she had used. Kashtanova had registered "Zarya of the Dawn" as a work of visual arts, claiming that she was the creator in terms of the concept (the adventure of a non-binary person who searched different worlds for mental tools to manage their emotions and to communicate with other beings, a story said to have been based -according to Kashtanova- on stories from her grandmother), certain artistic decisions and indications for Midjourney to create the images, although the final product and the pages generated by this tool were not altered in their result by Kashtanova. However, the USCO itself informed Kashtanova on October 28, 2022 that it would initiate the procedure to cancel the registration, based on the fact that the use of Midjourney for the generation of the images and for the work produced had not been taken into account when deciding on the registration, and in keeping with its long-applied policy by the agency of rejecting copyright on AI-generated works (in this case, the images and plot of the comic).

For the time being, in the Chinese ruling and in the US registration procedure cited, we find certain guidelines to keep in mind:

a) To the extent that the human being intervened, whether by creating the artificial intelligence tool, by establishing the criteria that the creation should have, or by intervening on the result of production (the human being could approve what is believed, but eventually it could not be satisfied with what artificial intelligence designed, and could undertake another creative process or establish other instructions or “prompts”), if artificial intelligence is part of or is used to only give reality to the human creative process by facilitating or processing the work, we could suggest that the human being should be reputed as the creator and as the author, beyond the means used for the execution. Where appropriate, it should be presumed in these hypotheses that the person is similar to a patron of the work;

b) If the human being gives the basic ideas, but all the rest of the process in terms of creation and the result are left to artificial intelligence, we might think that this would be the true creator. Because in any case, the requirements, instructions or commands that the human being gives or proposes to the AI ​​could be taken as ideas, initiatives or inspirations that in themselves do not define the author;

c) It can be granted that, in a scenario in which artificial intelligence would eventually act on its own initiative and without the need to be given definitions by people, no longer being a mere data processor, it can create. And if artificial intelligence can create, it can be considered an “author”. In this alternative, we could maintain that, to the extent that it could be proven that the Artificial Intelligence instrument did not require prior initiatives, nor programming, parameters or prior instructions given by human beings, using their own resources both in the initiative and in the creative process, its creation is its own and therefore artificial intelligence would be the author as such even if it were not a human being. 

From the foregoing, we can suggest that in view of these scenarios it is necessary to determine in each specific case:

1) if the artificial intelligence tool was only used to execute a human creative process (supposition “a”), based on human programming and whose process or results it supervises. It is what we call an invention, a work or a “creation with AI”: the person is owned by the creator, insofar as he only uses the AI;

2) if the AI ​​instrument worked by taking its own initiatives or creative or inventive decisions, it could be thought that it created it by itself (hypotheses “b” and “c”). It is what we call an “creation by AI”;

3) It remains to discuss what happens when the human being gives the instructions, the parameters or elements that the invention or creation must have, or occasionally even the programming, but the AI ​​in the work establishes its own sequences, selects the information and adopts its decisions in a “personal” way for clothing. Defining who the creator is here is, in our opinion, the object of the discussion that is taking place in the “Zarya of the Dawn” case. It is a limbic zone between 1. and 2., insofar as the human being no longer acts, works or resolves in the creative-creative process, but rather all the inventive work is done by the system, although it may be satisfied with the result. To maintain that in this situation human intervention was reduced to give ideas, inspirations, procedures, From understanding that the human initiative defined what the AI ​​should do and leaves it “the hard work” even though the latter can make its decisions, we find ourselves in alternative “1”, or we should assimilate the human being as the principal (analogically to what happens in the work made to order) of creation.

And in the event that it is admitted that there was activity and labor and effort from both the person and the AI ​​instrument in the creation, would we be talking about a co-authorship or a co-participation between the AI ​​and the human being? We understand that it is right, and that it should be recognized.    

If we admit that AI could or can create "works" (creation by AI), it would be necessary to study whether this creation could or can also be reputed to be original.

 

III. Can a work made by an Artificial Intelligence instrument or tool be considered original?

Originality is often associated with the projection or reflection of a personality in a work, and this is important in considering whether the creation should be granted intellectual property protection. Thus, various decisions of the Court of Justice of the European Union (C-145/10, C-161/17, C-683/17) determined that the work should be considered “original” as long as it is a “creation that reflects the personality of the author, manifesting his free and creative decisions”. In a classic decision of the Supreme Court of the United States, it has been asserted that the “sine qua non” of copyright is originality: “As in The Trade-Mark Cases, the Court emphasized the creative component of originality. It described copyright as being limited to “original intellectual conceptions of the author,” 111 U.S., at 58, and stressed the importance of requiring an author who accuses another of infringement to prove “the existence of those facts of originality, of intellectual production, of thought, and conception.” Id., at 59–60.” (5).

There is nothing that prevents us from considering that a work created by an artificial intelligence system or tool made without any human intervention can be original , as long as the creative product has emerged from its own resources, processes and decisions.

In the case “Tencent vs. Yingxung Technology Shanghai” already cited (6), it was analyzed that the article created with the AI ​​created intelligence program called “Dreamwriter” had original content, although as we also saw, the acting Court held that the article in question was a work created by the general intelligence of multiple teams and multiple divisions of labor chaired by the plaintiff, a work of a legal entity. We must specify that if this said Tribunal had understood that the work was the creation of the aforementioned artificial intelligence system, the logical consequence would have been one: the work created by artificial intelligence would have been original.

 

IV. Can the AI ​​be considered as “author”?

The concept of “author” is usually examined in its natural and obvious sense (art. 18 of the Uruguayan Civil Code) in relation to a human being. In Spain, for example, art. 5.1 of Royal Legislative Decree 1/1996, Consolidated Text of the Intellectual Property Law, defines as author " the natural person who creates any literary, artistic or scientific work ", without prejudice to the fact that intellectual protection may benefit legal persons (article 5.2 of the same Consolidated Text). In the United Kingdom, the legislation itself settles the discussion by preventing any computer product from being considered “author”, while in the “Copyright, Design and Patents Act 1988” it is considered as “in relation to a work, means the person who creates it” (art. 9.1 of the same; see also art. 7.1 of the “UK Patents Act 1977”), and in its art. 9.3 declares with respect to literary and artistic works that “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.

The Constitution of Uruguay protects the “intellectual work, the right of the author, the inventor or the artist " (art. 33), and the Civil Code of our country provides that “The productions of talent or ingenuity are the property of their author ” (art. 491 of the Uruguayan Civil Code). However, our regulations do not establish what should be considered “author”. The art. 5th of Law No. 9.739 establishes as “intellectual production” “All production in the domain of intelligence”, and establishes as the owner of intellectual property “The author...” (art. 7 of said Law). None of these provisions makes it explicit whether that author or that intelligence should necessarily be human. See that if we stick to very literal legal interpretation criteria (art. 17 of the Civil Code), our legislation does not establish distinctions and therefore, the interpreter should not distinguish whether the “author” is a human being or an artificial intelligence, without prejudice to the fact that in each case the interpreter, registrar or Court must establish who of them would be the author.

Considering that there is no artificial intelligence that operates without human intervention, or at least as long as that situation remains, the answer should therefore be “no”: AI could not be held as the author.

On the contrary, if we could recognize that artificial intelligence can create by itself (see Sections I and II), we should also conclude that it could be the author of the works it devises. We could not truly say that its creation or invention would be a “work without an author”.

The possibility that artificial intelligence can be considered “author” implies imagining the possibility of having to recognize such a quality in something non-human. The concepts of “author” must then be reformulated or expanded legislatively, doctrinally and jurisprudentially, so as not only to understand them in terms of "people" but also "intelligence" (without discriminating whether it is human or artificial). Let's add that whoever  creates is exercising will, damn it is something non-human. It would no longer be a mere “thing” or “instrument”, but something more.

We wonder if we could eventually conceive of artificial intelligence as a co-author, or as a collaborator, to the extent that it has contributed its resources to human work. The answer can admit two positions:

a) If AI enhances and adds to human creativity with its own processing mechanisms, that is, with its own intelligence even if it is not human, a new definition of “authorship” could encourage the consideration of artificial intelligence as a “co-author” or “collaborator” with the human being. Because there was a contribution from both the person and the AI ​​instrument in the creation, we are facing a community of authorship;

b) If it is argued that there is already a human being, there is the intervention of his intelligence and ultimately, he is responsible for the creative process, the author would be the human person exclusively. The same could be said if it is believed that artificial intelligence cannot be considered “author” and by default, the authorship would be attributed to the human being involved.

We must bear in mind that if the AI produced the invention or work, whether at the initiative of a human being or of the AI alone, the AI should be considered the author if it is determined that it was the person who established or designed the content (we insist that the ideas, parameters, inspirations or suggestions of the human being user do not imply authorship). When the human being decides to adapt or modify that content, it must be analyzed in each case if we are dealing with an elaboration made with AI (which would admit human authorship), or if we are dealing with a generation by AI (with co-participation but without total authorship of the person); being the criterion to differentiate one or another hypothesis, the degree and quality of the human intervention on the creation of the AI.

It is questioned whether the work or invention created by AI would belong to the person who created the AI tool. In truth, we believe that it does not belong to him if it can be seen that he has tacitly or explicitly granted the use of the tool, freely or onerously, for third parties (without prejudice to his eventual liability as the creator of the AI, for improper use of third parties, if applicable). In this situation, the creator of the AI only makes the resource available, and does not participate in the creative process established between the third party and the AI, nor in the initiative of the third party or of the AI itself. However, when the human designer of the AI used his own AI tool to create, in that case we must think that he designed it for the creative process and would be considered the author of the work, unless the AI was created to act without the initiative or indications from him.

In the event that it is supossed that the artificial intelligence instrument could be considered “author”, “co-author” “collaborator” of a reputable work as original, one might wonder if said creation could be protected by intellectual property rights.

 

V. Can a work created by Artificial Intelligence be protected by intellectual property rights?

It is one thing to determine whether in the work done by artificial intelligence, the artificial intelligence tool can be considered “creator” and “author”. Both alternatives are possible.

Another is whether AI can be protected by intellectual property rights.

According to the United States Copyright Office (USCO-) the answer is “no”. In a request for registration of the graphic work “A Recent Entrance to Paradise” made by the artificial intelligence instrument “Creativity Machine”, it was rejected as an author and that registration was denied by decisions dated August 12, 2019 and 14 February, 2022. The registration request had actually been filed by a human being, Stephen Thaler, but he was not listed as the author on the request. The central argument given by the USCO to deny the copyright to Creativity Machine was that there was no human authorship in the work “A Recent Entrance to Paradise”; although Thaler tried to argue, without success,

The challenge that Doctor Thaler is posing around the world is very interesting: trying to get artificial intelligence instruments recognized as creators in order to be reputed as holders of copyrights and patents (the issue could also be raised with trademarks), since Thaler himself does not propose himself to the registers as author or inventor.

Greater discussion and debate has been sparked by Stephen Thaler when he proposed patenting a “Food container and devices and methods to attract greater attention”, under the authorship of the artificial intelligence system “DABUS” (“Device for the Autonomous Bootstrapping of Unified Sentience”) and figuring said AI instrument as the inventor. The request had dissimilar registry and jurisprudential pronouncements in various countries.

In Australia, the Federal Court Judge Jonathan Beach found that the artificial intelligence DABUS could be considered as “inventor” under the Australian patent regime, in a judgment of 30 July, 2021 (7). The decision was based on questioning why they cannot create our creations; and if they can create, “ergo” they can be considered authors and protected as such. However, in second instance the ruling of April 13, 2022 of the Full Federal Court of Australia revoked Judge Beach's groundbreaking ruling, declaring that " The origin of the right holder is a human entrepreneur " (8). Finally, the denial of the patent was ultimately upheld on November 11, 2022 by the High Court of that country (9). This last Body stated that DABUS could not be considered an “inventor” under the Australian law for the purpose of applying for a patent, and in the particular case, neither the applicant nor any human who could have been identified was proposing himself as an inventor. It is necessary to highlight that Section 15.1 of the Australian Patent Law mentions that the patent can only be “granted to a person”.

The United States Patent and Trademark Office has the criteria of denying the intellectual protection of works created without human authorship, which has been confirmed by Courts of Justice in that country (10).

Likewise, in the United Kingdom, the Court of Appeal of England and Wales ultimately decided that the DABUS System cannot be held as the inventor, through its ruling of September 21, 2021 (11). The case is nowadays before the Supreme Court of the United Kingdom, and there is currently no resolution.

The European Patent Office also rejected the registration of DABUS as the author of the invention in the final decision of its Board of Appeals of December 21, 2021 (background J 0008/20), establishing that an inventor must be a human being and not a machine, and the fact that that machine was given a name was not a sufficient requirement for the registration claim (12).

In a completely opposite criterion, on June 24, 2021, the South African Companies and Intellectual Property Commission granted the patent to DABUS and in favor of said artificial intelligence for the invention of the food container that was unsuccessfully attempted to be registered in other countries (13). This admission represents an important precedent, which constitutes a vanguard in the subject of intellectual property protection for artificial intelligence.

It is necessary to mention that the position that admits the registration or the protection of the intellectual property of works in which artificial intelligence is considered the author, is reinventing the concept of “author”, according to new readings of that term and the reality of a technology that becomes independent of the human being, coming to manifest its own will.

 

VI. Who owns the intellectual property rights of a creation made by artificial intelligence?

In the case of patents and trademarks, only those who are recognized by the respective registration authorities can be holders of such rights (arts. 4 to 6 of the Paris Convention for the Protection of Industrial Property; arts. 3, 4, 15, 27 to 29 more concordant of the AADPIC, and particular norms of each State, region or international system) (14). In the particular of copyright, the real rights over them can be exercised without the need for registration, as long as it can prove the original or derivative ownership (arts. 5.2 and 15.1 of the Berne Convention and art. 9.1 of the AADPIC, art. 1.1 of the WCT; in Uruguay see article 6, subparagraph 2 of Law No. 9.739).

Let us remember that until now, intellectual property is conceived as a human right; this is how it is protected in the highest international instruments of human rights, and in the Constitutions of the different countries. This explains why legal culture, legislation, doctrine and jurisprudence are still mostly reactive or reluctant to recognize intellectual property rights to artificial intelligence systems or tools. We have seen in the previous Sections that legislations usually consider a “person” as the “author”, and that where this is not explicit, it is taken for granted.

That is why it is very difficult to conceive that AI, by itself, can be the owner of intellectual property rights.

The only way in which the intellectual property of AI could be protected would be to give artificial intelligence legal clothing by granting it legal status or considering it a center of imputation of rights and obligations (regarding this last possibility, it would be similar to as provided with respect to the rights of animals, which in Uruguay are subject to legal protection and guardianship -article 21 of the Civil Code, article 1 of Law No. 18.471, articles 27 and 98 of the Decree of the Executive Power No. 62/014-). Although such fiction cannot be sustainable, if artificial intelligence physical needs persons for expressing their will. 

Why do some begin to think, and others to propose in practice like Stephen Thaler, that artificial intelligence instruments should be recognized as the authors or inventors themselves? Because we are already facing the reality that there are “things” that are creating or can do so without the need for human intervention; and in another reasoning, if the AI ​​is in charge of a good part or almost all of the creative process, its authorial work, or at least the co-authorship, collaboration or creative credit that it has in the work, should be noticed.  

If it is intended to recognize intellectual property rights protection for artificial intelligence, we still have legal gaps to fill.

Of course the legislator, who usually works magic with realities, could issue regulations recognizing ownership or special nuclei of intellectual rights, or their protection of some kind, eventually moral, to artificial intelligence tools. The Courts could also lead progress in this regard, taking precedence over what the Laws define. But both the legislation and the jurisprudence find the stumbling block of how they can give protection to those who are not people because they are not subjects of law: artificial intelligence or artificial intelligence tools are not human beings, they are strictly things, they cannot be protected; we got to this point.

The situation that denies intellectual protection to artificial intelligence, based argumentatively on the fact that the artificial intelligence system cannot be protected as an author because it is not a human being, leaves the work created by it unprotected, when no human creator appears as headline. Anyone could, in this case, plagiarize it, adapt it or (in countries where it is not allowed without the authorization of the owner, as in Uruguay -arts. 35 and 44.A.4 of Law No. 9.739-, Argentina -arts. 2°, 25, 26 and 36 Law No. 11.723- and Dominican Republic - articles 6º num. 1º and 11 Law 65-00- for example) even parodying it (this last case typical for literary and artistic works).

Likewise, no human being could claim the intellectual property of an invention or creation made by AI, nor claim any paternity, for not being its author. If a person claimed that, then they should postulate that they made the work using AI or with AI, the person having intervened and guided the creative process; although in this last alternative we are already talking about a human creation, not an invention by AI.

With such a perspective, the illegal use or reproduction of a work made by artificial intelligence, if it cannot be protected, we will only have an ethereal moral reproach (we are not talking about moral intellectual property rights, but simply about issues of a moral nature and not legal) and not a legal guardianship.

Would then be the works or inventions generated by AI that are not considered authorship or human co-participation, “res nullius”? Would we find ourselves in these circumstances facing a gap or a legal void, where the protection of intellectual property would not reach or where it would not be feasible or possible?

It is clear that with respect to trademarks or patents and their related rights, if they cannot be registered in the name of an AI system or instrument, there will be no way to protect them intellectually.

With the literary and artistic works created by AI, it is also obvious that they cannot be the object of private economic or moral rights of intellectual property. Would it be feasible to apply when not having human owners, the works made by AI  could belong to the public domain of the State due to copyright and related rights? A negative response is also required, because even when the AI ​​is considered to be an “author”, it cannot be the owner of intellectual property rights and, therefore, its works lack such protection or potential for “erga omnes” opposability, not having possibility of passing at any time copyright or similar rights, to the State.

Despite all this, let us not forget that it is still a general principle of law that unauthorized use of the efforts or creations of others is improper, and therefore should not be allowed. Although this “alien” is a machine, programming, data sequencing or algorithms, we are talking about the same thing.

 

VII. Who can be claimed for the infringements noticed in works whose creation artificial intelligence was used, or were created by artificial intelligence?

How can the creators of protected works claim for their intellectual property rights, if their contents or works were used by artificial intelligence? Against whom can a claim be made if in the work made by artificial intelligence, the machine, instrument or algorithm used repositories, data or resources of creations or related to creations eventually supervised? How can it be legally addressed when a subject takes improper advantage of the creation made by AI?

In a similar way to what happens in the general system, it should be studied as a matter of fact if only ideas, inspirations or stylistic resources were taken by the AI, or if this use came to adopt expressions or content adapted, parodied or plagiarized without authorization of the owners of the protected contents or creations.

If the work was generated by AI without any human intervention, whether it is recognized as an intellectual property owner or not, there is no possibility of asserting third-party rights against it, because artificial intelligence is not human and therefore cannot be subject to of law subject to obligations, nor can it be legally represented.

The question will then be: “Cherchez l'être humain”.

We can answer like this, openly and without prejudice, according to these possibilities:

a) If it is admitted that the author of the questioned work is artificial intelligence itself without the intervention of any person, or if it acted by itself and on its own initiative, since it is not a subject of law (art. 21 of the Uruguayan Civil Code), the tool obviously lacks passive legitimation. However, if artificial intelligence eventually acted on its own initiative, the human being or beings that created it may be sued, based on the fact of having designed it or having used or used it (in Uruguay, arts. 1319 and 1324 of the Uruguayan Civil Code);

b) If it is understood that the work in question was authored by a human being who used or disposed of the artificial intelligence tool as a means to carry out the creation process or as an extension of its activity (in this eventuality the person is being considerable as author), the owner of the protected rights may sue him for liability (both for his own fact and for the fact of the thing used or that has been used or that is used; articles 1319 and 1324 of the Uruguayan Civil Code);

c) If in the process of the faction of the work by artificial intelligence there was any human intervention, of any kind (since the invention of the artificial intelligence tool, as well as in the initiative, in the instructions, commands or parameters, as in the final selection), the owner of the protected work can sue the individual regarding his participation or co-participation (both by his own fact and by the fact of the thing used or that has been used or that is used; arts. 1319, 1324 and 1331 of the Uruguayan Civil Code) even if it is considered that the creator is the AI;

d) In hypotheses "b" and "c", you can sue jointly (eventually "in solidum" or jointly) both the creator of the AI ​​tool and the human being who was involved in the creation process in which the tool acted;

e) Discussions may arise as to whether the person who created the artificial intelligence tool made it freely available to the public (in which case they would not have gotten rid of its legal or material disposition), if he did so under a contract granting free or onerous license (not losing the provision on the AI ​​in terms of the economic benefit that the licensee gives to grant the licences), or if he transferred its property free of charge or for a fee to a third party (in which case it lost the provision on the AI ​​instrument). What will make the creator of artificial intelligence liable in the first case for his own act or as a guarantee, in the second as responsible as a guarantee, and will be exonerated from reproach in the last.

In the event that a third party or third parties have adapted, parodied or plagiarized a work, invention or design of any kind produced by artificial intelligence, only those who can justify any registration, right or ownership of the creation may claim them for the corresponding property rights made with or by AI, according to the general rules. Whoever intends to apply as a legitimized asset cannot claim a representation of the AI ​​tool because things cannot be represented, unless express legal dispensation or that a legal legal fiction has granted the AI ​​some protection as a center of imputation rights and obligations; to be it evaluated according to the legal order of each country or region. 

We could imagine, in another aspect, that the AI ​​could just act in such a way that it was trained or could train itself to recognize, or to prevent not using, certain content that could be protected by intellectual property rights. This solution could contribute, without the need to resort to summons, claims or litigation, to an adequate balance of the legal assets at stake.

It remains to study how criminal responsibility would be enforced.

In the case of works made with artificial intelligence, as soon as intellectual property rights whose owners were human beings can be brandished, the general rules apply.

Against those who illegitimately use creations designed by artificial intelligence systems, in the works created by AI there are no, at least until express legislative reforms are verified, owners or rightful holders of intellectual property. Will the offenders of these latest inventions go unpunished in this hypothesis, or outside of the criminal punitive claim? The answer seems positive, because there is no human intellectual property attacked.

 

VIII. By way of closure

New technologies and advances in informatics have generated non-human intelligence (machines, programs, applications or artificial intelligence algorithms) with the ability to create works by themselves and without the need for human intervention or control. These creations can in certain cases, be noticed as original.

It is necessary, then, to question whether artificial intelligence has the capacity without the need for human participation (even if it eventually processes the data with certain commands or guidelines given by it) to create with originality, whether artificial intelligence instruments should be recognized as true authors. The second stage is to consider whether AI should be recognized no longer with a credit or a conceptual participation in the invention, but with the entire protection of its activity through intellectual property rights. In these circumstances, the term “author” must be redesigned or resignified, in accordance with this imminent reality.

Determining how this AI creativity should be regulated and protected from Intellectual Property Law is currently a problem that is knocking on the doors of legislation, registries and Courts. Although for the moment the answer is mostly negative in terms of granting artificial intelligence the protection of intellectual property over its creations, such a reality must one day be addressed and it will have to be analyzed whether it should not be protected affirmatively.

In the meantime, the Courts and registries, with the legal instruments available to them in their respective countries or regions, need to solve with ingenuity and common sense the issues that involve eventual intellectual property claims of artificial intelligence or problems related to attribution of interests in the creation by AI, balancing the different rights at stake within the applicable legal order to find solutions, which may not be unanimous, to recognize and give the treatment that corresponds to these new realities.

The controversy on the matter is open and like Leuconoe's Response, it offers us Space (15) towards what is to come. But what will come next?

 

 

Propius Tibi, Domine.

Die fifteenth mensis Januarii, Anno Domini MMXXIII

 

 

 

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[1] ETTLIN Edgardo, Estudios sobre Justicia y Propiedad Intelectual, La Ley Uruguay - Thomson Reuters, Montevideo, 2021, pp. 1 and 3.

[2] Judgment of the Beijing Intellectual Property Court of April 2, 2020, case “Gao Yang v. Youku”.

[3] In Uruguay, the AADPIC was ratified by National Law No. 16.671, and the WCT was ratified by National Law No. 18.036. The Paris and Berne Conventions were ratified by Decree-Law No. 14.910.

[4] Decision of 12.24.2019 of the Nanshan District People's Court, Shenzhen, Guangdong Province (People's Republic of China), case “Tencent v. Yingxung Technology Shanghai”.

[5] Supreme Court USA - Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 US 340 (1991).

[6] See Section II.

[7] Thaler v Commissioner of Patents [2021] FCA 879.

[8] Commissioner of Patents v. Thaler [2022] FCAFC 62.

[9] Thaler v Commissioner of Patents [2022] HCATrans 199.

[10] Judgment of August 5, 2022, case “Thaler v. Vidal”, United States Court of Appeals for the Federal Circuit. Judgment of September 2, 2021, case “Thaler v. Hirschfeld”, United States District Court for the Eastern District of Virginia.

[11] Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374 (21 September 2021). Art. 7.1 of the “UK Patents Act 1977”: “Any personmay make an application for a patent either alone or jointly with another. ” (highlighting ours).

[12] https://www.epo.org/law-practice/case-law-appeals/recent/j200008eu1.html (accessed 14.1.2023).

[13] https://ipwatchdog.com/wp-content/uploads/2021/07/AP7471ZA00-Notice-of-Acceptance-1.pdf (accessed 14.1.2023).

[14] See Note 3.

[15] RODÓ José Enrique, Motivos de Proteo second edition, Editorial Cervantes, Valencia, 1918, pp. 40-41.