HSE 2021 (AI&C)

Fair Use

“once the parties bearing the ultimate responsibility have been identified, their liability should be proportional to the actual level of instructions given to the robot and of its degree of autonomy, so that the greater a robot's learning capability or autonomy, and the longer a robot's training, the greater the responsibility of its trainer should be”; “at least at the present stage the responsibility must lie with a human and not a robot”

(1)

obligatory insurance scheme which takes into account all potential responsibilities in the chain;

(2)

Creation of a specific legal status for robots in the long run, so that at least the most sophisticated autonomous robots could be established as having the status of electronic persons responsible for making good any damage they may cause

"the autonomisation of the creative process raises issues relating to the ownership of IPRs [but] considers, in this connection, that it would not be appropriate to seek to impart legal personality to AI technologies"

presumption of authorship

Person whose name is indicated in the work, in absence of proof to the contrary (e.g. art. 4(1) Dutch Copyright Act, art. L113-1 French IP Code; art 6.1 Spanish copyright law; art. 8 Italian copyright law; etc)

L.111-1 of the French Intellectual Property Code

“auteur d'une oeuvre de l'esprit”

No Express Statutory Definition

“[s]everal provisions of the Copyright Act ... persuade us against the conclusion that animals have statutory standing to sue under the Copyright Act.”

the terms “children,” “grandchildren,” “legitimate,” “widow,” and “widower” used in the Statute necessarily imply that the Copyright Act excludes animals that “do not marry and do not have heirs entitled to property by law”

Work of authorship = created by a human being

3 EU Directives “vertically” harmonize originality

DRAFT REPORT on IPR for the development of AI technologies (2020/2015(INI)), JURI Committee EP

(24 April 2020)

Reproduction

and

Adaptation

(1)

Human as a primary infringer?

(2)

AI as a primary infringer?

(3)

Can a human be secondary liable?

making available to the public

AI-Generated Works and Copyright Protection

Higher School of Economics

X Int'l Conference "Law in the Digital Era"

(Moscow, 15 October 2020)

Giancarlo Frosio

digital rights management

providing evidence of genuine and/or first use in trade and/or commerce

controlling and tracking the distribution of (un)registered IP

transmitting payments in real-time to IP owners

Related Applications

copyright registries

authentication and provenance purposes in the detection and/or retrieval of

(1)

counterfeit,

(2)

stolen and

(3)

parallel-imported goods

registering and clearing IP rights

evidence of creatorship and provenance authentication

establishing and enforcing IP agreements, licences

or exclusive distribution networks through smart contracts

applications

EP 18 275 163

and

EP 18 275 174

a warning light

and

a food container

(1)

The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine's owner, he was assigned any intellectual property rights created by this machine.

(2.1)

EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person.

(2.2)

The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.

(3)

Moreover, the designation of an inventor is mandatory as it bears a series of legal consequences, notably to ensure that the designated inventor is the legitimate one and that he or she can benefit from rights linked to this status. To exercise these rights, the inventor must have a legal personality that AI systems or machines do not enjoy.

Patenting

AI

Art. 52 (c) and (3), EPC

The following in particular shall not be regarded as inventions [...]:

(c)

schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(3)

Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

Computer Implemented Invention

Patent

Can a robot be an inventor?

Creative Adversarial Network (CAN)

“If the humans purporting to act on Plaintiff’s behalf wish for copyright to be among the areas of law where nonhuman animals have standing, they should make that dubious case to Congress – not the federal courts”

Style transfers - Deep dream generator

Naruto v. Slater, No. 16-15469 (9th Cir., 23 April 2018)

Stack-GAN

Generative Adversarial Network (GAN)

Two neural networks contest with each other in a game. Given a training set, this technique learns to generate new data with the same statistics as the training set.

Can it be a machine?

Deepfakes

Creating a new work based on pre-existing works?

U.S. 101

U.S. 102(b)

U.S. 107

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, [...] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Anonymous works ones where no natural person is

identified as an author

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1)

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)

the nature of the copyrighted work;

(3)

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)

the effect of the use upon the potential market for or value of the copyrighted work.

Burrow-Giles v. Sarony (1884)

The Congress shall have the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (Article I, Section 8, Clause 8)

(1)

Patent v. Copyright

(2)

Method of Operation

(3)

Functionality

(4)

Merger

...and, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.

Baker v. Selden (1879)

“Creative spark”/“intellectual production, thought, conception”

autos

Feist v Rural (1991)

Work made for hire?

Contractual Liability

What if machines are designed to choose their counterparts, negotiate contractual terms, conclude contracts and decide whether and how to implement them?

Autonomous robots' nature should be construed in the light of the existing legal categories or a new category should be created?

Are the ordinary rules on liability sufficient or AI calls for new principles and rules?

What if the cause of the robot’s act or omission can be traced back to a specific human agent such as the manufacturer, the operator, the owner or the user?

Non-Contractual Liability?

What if the robot has malfunctioned?

What if there are no manufacturing defects? And the AI has not malfunctioned? And the injured person is unable to prove the actual damage, or the defect in the product or the causal relationship between damage and defect?

Does Directive 85/374/EEC apply?

But, what if the cause of the robot’s act or omission cannot be traced back to a specific human agent?

What if the human agent could have foreseen and avoided the robot’s harmful behaviour?

Liability

Can a robot be an author? That is the question.

9(3) of the Copyright, Designs and Patents Act (CDPA)

“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.”

(1)

A work that has no human author/the author is not an individual?

(2)

Author

person who undertakes the arrangements

necessary for the creation of the work

(3)

Term of protection

50y from when the work was made

Who is the person in charge of the

“necessary arrangements”?

Nova Productions Ltd v. Mazooma Games Ltd (2006)

“It wasn’t serendipitous monkey behavior, [...] It required a lot of knowledge on my behalf, a lot of perseverance, sweat and anguish, and all that stuff.”

“The arrangements necessary for the creation of the work were undertaken by [the plaintiff] because he devised the appearance of the various elements of the game and the rules and logic by which each frame is generated and he wrote the relevant computer program.”

Composite frames generated by the computer program using bitmap files

What about the user?

”The appearance of any particular screen depends to some extent

on the way the game is being played. For example, when the rotary

knob is turned the cue rotates around the cue ball. Similarly, the

power of the shot is affected by the precise moment the player

chooses to press the play button. The player is not, however, an

author of any of the artistic works created in the successive frame

images. His input is not artistic in nature and he has contributed no

skill or labour of an artistic kind. Nor has he undertaken any of the

arrangements necessary for the creation of the frame images. All he

has done is to play the game.

but what are the necessary arrangements?

Syllabus

Piecemeal

Google Brazil v Dafra, Special Appeal No. 1306157/SP (Superior Court of Justice, Fourth Panel, 24 March 2014)

lack of a technical solution for fixing a defective new product does not exempt the manufacturer from liability, or from the obligation of providing a solution [...] If Google created an untameable monster, “it should be the only one charged with any disastrous consequences generated by the lack of control of the users of its websites.”

Technical impossibility defense!

(1)

the Argentinian Supreme Court repudiated a strict liability standard and adopted a test based on actual knowledge and negligence;

(2)

requested judicial review for issuing a notice to take down content except in a few cases of “gross and manifest harm”; and

(3)

rejected any filtering obligation to prevent infringing links from appearing in the future

AI/Human-Generated Creativity

AI-Generated Creativity

AI Software

Output

Input

Protection

Infringement

A(I)uthor

(Machine) Learner

(A)Infringer

Does it need to be a human?

Fictional Human Author

Can a robot be an author? That is the question.

Legal Personality

Protection

Infringement

A(I)uthor

authorship

Sui Generis Right

Data Propertization

Unfair Competition

Disseminator Right

Beijing

Shenzhen

In Practice

No transversal definition in statutory law

(Art. 7)

“author is the creator of the work”

(Art. 11)

“protects the author in his intellectual and personal

relationships to the work”

Art. 5

"the author of a work is the natural person who creates it"

The Obvious collective uses both the GAN code and Barrat’s own tweaks to generate a family of portraits.

Obvious wrote a paper on how they created the portraits, and they credited Barrat.

IS IT THEFT?

No lawsuits filed (yet)

data mining processes used to analyse and produce new knowledge.

no legal protection of data as such

Legal

Subjectivity

Nick Bostrom

"machines capable of independent initiative and of making their own plans . . . are perhaps more appropriately viewed as persons than machines.”

(1)

Intelligence

No absolute measure of intelligence, but creativity is one of its elements

In many respects, still different from human intelligence: awareness, experience from the senses, content states, self-criticism, consciousness, etc

(2)

(Scale of) autonomy

Article 3-4

Text and data mining

Author

=

qualified person (S. 32(1)) ACA)

=

Australian

citizen/person (S. 32(4))

Conditions for protection:

Originality:

linked to authorship

(Ice TV)

“original works emanate from authors”

(Phone Directories)

“Copyright (…) only subsists if it originates from an individual”

(Acohs, 1st instance)

Work needs to “spring from the original efforts of a single human author”

"there are no legal provisions that specifically apply to robotics, but that existing legal regimes and doctrines can be readily applied to robotics"

Theory and Regulation

Originality

“only human creations are therefore protected, which can also include those for which the person employs a technical aid, such as a camera.”

(AG Trstenjak, Painer)

In view of the foregoing, a portrait photograph can be protected by copyright if, such photograph is an (1) intellectual creation of the author (2) reflecting his personality and (3) expressing his free and creative choices in the production of that photograph.

(1)

the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation (part. 46)

(2)

Where the expression of those components is dictated by their technical function the criterion is not met, since different methods of implementing an idea are so limited that the idea and the expression become indissociable (idea-expression merger) (par. 49)

(1)

As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production.

(2)

In the (a) preparation phase, the photographer can choose the background, the subject’s pose and the lighting. (b) When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, (c) when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software.

(3)

By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’.

(4)

Consequently, as regards a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent.

(1)

As regards to realistic photographs, particularly portrait photographs, copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation.

(2)

an intellectual creation is an author’s own if it reflects the author’s personality.

(3)

That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices

Sporting events cannot be regarded as intellectual creations … especially football matches, which are subject to rules of the game, leaving no room for creative freedom (Par. 98)

(1)

the fact that the setting up of the database required, irrespective of the creation of the data which it contains, significant labour and skill of its author

(2)

cannot as such justify the protection of it by copyright

(3)

if that labour and that skill do not express any originality in the selection or arrangement of that data

(1)

Copyright is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation (par. 37)

(2)

It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result that is an intellectual creation.

(3)

11 consecutive words (“may not be ruled out that…”)

Independent Creation

Originality was not harmonized at EU level

ECJ “horizontally” expands originality to all EU subject matter

Individualistic

1996

2012

1991

2009

Creativity

Fairness

Personality

Present

Database Directive

Software Directive

Directive 96/9/EC of 11 March 1996

Copyright Term Directive

Directive 91/250/EEC of 14 May 1991, now 2009/24/EC of 23 April 2009 (codified version)

Directive 93/98/EEC, now by Directive 2006/116/EC of 12 December 2006 (codified version)

A database is original if

(1)

it is “the author's own intellectual creation” (in the selection or arrangements of contents)

A computer program is original if

(1)

it is “the author's own intellectual creation”

A photograph is original if

(1)

it is “the author's own intellectual creation”

IP Theories

Travaux préparatoires of the Database Directive: “the human author who creates the work”

Original proposal for a Software Directive:

“The human input as regards the creation of machine generated programs may be relatively modest, and will be increasingly modest in the future. Nevertheless, a human ‘author’ in the widest sense is always present, and must have the right to claim ‘authorship’ of the program."

• HR 22 februari 2013, NJ 2013, 502 m.nt. PBH (Stokke/H3 Products) (Neth.);
• HR 19 september 2014, NJ 2015, 179 m.nt. DWFV (Rubik/Beckx Trading) (Neth.)

M-Design Benelux, Cour de cassation [Cass.] [Court of Cassation], Oct. 31, 2013, F-20130131-1 (Belg.)

Cour de cassation [Cass.] [supreme court for judicial matters] 1e civ., Oct. 20, 2011, No. 10-21251 (Fr.) (photos);

Cour de cassation [Cass.] [supreme court for judicial matters] 1e civ., June 12, 2006, Bull. Civ. I, No. 307 (Fr.) (perfumes);

Cour de cassation [Cass] [supreme court for judicial matters] 1e civ., May 2, 1989, Bull. Civ. I, No. 180 (Fr.);

Cour de cassation [Cass.] [supreme court for judicial matters] Mar. 7, 1986, Bull. Civ. No. 3 (Fr.) (computer programs)

Appleton v. Harnischfeger Corp. 1995 (2) SA 247 (AD) at 43–44 (S. Afr.)

• University of Waikato v. Benchmarking Services Ltd. [2004] NZCA 90, [2004] 8 NZBLC 101,561 at [27] (N.Z.);
• Henkel KgaA v. Holdfast [2006] NZSC 102, [2007] 1 NZLR 577 at [37] (N.Z.)

Collectivistic

Welfare

Cultural

Prospective

Authorship

Dichotomy Idea/Expression

Subject Matter

Existence of a human being as an intrinsic requirement?

No definition in international treaties

BUT

Term of protection linked to the life of the author