21.03.2023
Regardless of the type of brush a painter uses, they have copyright to their painting. But what if they use artificial intelligence instead of a brush? Is AI a tool or a creator in legal terms? IP Lawyer Jussi Ilvonen reflects on how AI is related to copyrights and creative business.
Artificial intelligence, or AI, and machine learning are increasingly a part of work, learning, innovation, and value creation for companies in various kinds of industries. What does this mean for the rights of creators and companies?
Who owns the copyright to marketing text, illustrations, or other creative content produced by AI? If AI produces an image library for your website, do you own the copyright to it and could you unknowingly infringe on someone else's rights? In many ways there are no clear answers to these questions yet. Copyright disputes related to this topic are expected until the legal situation becomes clearer.
AI, authorship, creative works, and their copyrights are interesting to examine from five perspectives.
1. AI as the holder of copyright
Source code, a film, a painting, a composition, a map, a building, a poem, or an industrial art product, for example, are some of the common examples of intellectual creations. According to the law, the creator(s) of the work has copyright to the result of their intellectual creation, i.e. the work. Copyright is a long-lasting exclusive right that covers copying the work, making it available to the public, and, in certain limits, altering it. As a rule, within e.g. the EU copyright system, copyright is granted automatically to the author(s) if the work in question is to be considered original. The final assessment of originality must be decided on a case-by-case basis by a competent court of law.
Many AI applications are able to imitate human creativity astoundingly well, but as a rule at least at the moment across the world copyright can only be legally born to human creators. This means that one should assume that any creations made purely by AI are not copyright protected and thus e.g. the AI’s owner or users cannot obtain or enforce any copyrights to said types of works.
2. AI as an aid to creation
Another thing is that when AI is merely a tool for creation, copyright may be granted for the end result - but only if humans have significantly influenced the creation of the final result, i.e. original work(s). This is not exactly a new phenomenon; for example, in the field of software development, copyright can be born to person(s) who alone or together provide performance instructions to a coder or coders. Copyright belongs to the instruction-givers, especially when the performing party has little opportunity to use their own creativity.
This is not to say that the supporting role of AI won’t involve a lot of gray areas on a case-by-case level. It may be oftentimes difficult to understand what the legal relationship is between human creation and machine creation that is relevant for copyright. Clearer guidelines may be obtained as dispute cases related to this topic progress to the highest courts.
3. AI and Database Rights
The creations produced by artificial intelligence also may raise questions about e.g. protection of databases – also in cases where such database is not considered an original work of human creators.
In EU countries there is available a sui generis database right, which protects the contents of a database and which can be granted also to a company. However, are not well-suited to databases created by AI, because obtaining protection requires significant investment in creating the database. This requirement seems not to be often met in the case of databases created by AI.
There has been some proposals in the recent legal literature, that a new type of neighboring right could be one possible solution to the legal protection needs of AI creations.
4. Style Copying
How should we approach AI creations that copy an artist's or performer's style or manner of speaking? Copyright only protects individual expressions of style, such as text, images, or performances. In some cases, however, imitation might be deemed forbidden under a (national) law on unfair business practices or subject to criminal liability if, for example, the elements of fraud are present.
5. AI and Rights Infringements
As a rule in Finland and in many other countries across the world, any individual, company or public body may be held responsible for copyright infringement, when they use AI applications in a way that a) constitutes unauthorised copying or modifying of the copyright protected works, and b) is not allowed under a copyright limitation provisions pursuant to the applicable law. These limitations in the EU include e.g. the right to make copies for private use, right for parody and right to use legally available works for so-called text and data mining purposes.
AI applications often rely on machine learning, which involves feeding the AI application a large amount of, for example, image or text data that the application's algorithms use. Machine learning often involves storage and modification for which previous consent of rights holders was required when it involves copyrighted material. Currently due to the EU’s digital single market directive (2019/790) the member states must allow text- and data mining for works that are legally available, firstly for scientific research purposes and secondly for other uses if copyright holders have not expressly forbidden the said use. The pragmatic problem in many cases in the future may be to identify the legal availability of the material used in training AI systems, as well as possibly the applicability of text and data mining exception under copyright low for training of different types AI applications with copyrighted materials.
It will be interesting to see how the changes to copyright law will be reflected in practice and how they will affect the future of creative work in Finland and Europe.
Are you considering protecting the results of your creative work? The expertise of Jussi Ilvonen includes, among other things, copyright, design rights, trademarks, cooperation agreements, and corporate law in the creative industries. Contact us now.
