“Hey Siri, Create Effective Legislation” February 2018

By HUGH MELAMDOWITZ AND BRENDON AMBROSE, Published in Intellectual Property

Artificial intelligence (AI), the buzz word of 2017, is the simulation of human intelligence processes by computer systems and other machines. AI has advanced rapidly over the past few years, with applications ranging from the novel and benign – like morphing children's drawings of their parents into pictures of real people; to the complex and useful – such as autonomous vehicles and Apple's new Face ID system. As tends to happen, however, the law may be playing a game of catch-up with the advancements in AI.

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Audi, for example, recently released their new flagship luxury model – the new A8. The A8 is the first vehicle to offer level three autonomous driving. This means that the vehicle can pretty much navigate traffic by itself while the driver streams a movie, or gazes out the window at the proletariat. When the A8 goes on sale, however, it will not be sold with all the autonomous driving hardware installed. The reason is that China, the USA and a host of other countries are still negotiating the legal frameworks around level three autonomous driving.

Currently the law of copyright may also be one step behind the advances in AI. Broadly speaking, copyright, governed by the Copyright Act, protects certain defined "works", such as computer programmes; films; literary, musical and artistic works. Traditionally, the creation of these works has been a strictly human endeavour. The advances in AI, however, have resulted in a paradigm shift, in that sufficiently "smart" computers can now create their own "works" with little, or even no, human involvement.

For the film Morgan, a thriller which debuted in the USA on 2 September 2017, the IBM Watson supercomputer was tasked to make the scariest movie trailer possible. In making the trailer, Watson analysed the visual and audio composition of 100 classic horror movies, to learn what is "scary". Using this new knowledge, Watson extracted scenes, dialogue and music from Morgan to create what, in its "opinion", is the scariest movie trailer possible. This trailer was created by Watson using multiple sources of data, ostensibly input by multiple humans as well as new information Watson itself created.

Requiring even less human involvement, the artist Taryn Southern composed her new single "Break Free" using an open source AI platform called Amper Music. For me, this sounds like something out of George Orwell's "1984", as Southern merely selected the genre, the instruments and the beats per minute; Amper then created the musical verses, which she then arranged into the backing track, layered beneath her vocals.

Both the movie trailer and the pop song were created by AI, or at least by using the input of AI. This brings us to the importance of the distinction between a computer aided work and a computer generated work. The former is work made by a person using the computer as a tool, or instrument. The latter is a work made by a computer where it is not possible to attribute the resultant work directly to the efforts of any person.

The authorship and ownership of computer aided works raise far fewer issues than do computer generated works so, for current purposes, computer generated works will be the focus. Computer generated works raise some interesting questions in terms of copyright, to which there are currently no clear answers. These are:

Who would be the author of a work created by an AI?

Section 1, paragraph (h) of the Copyright Act, under the definition of "author", states that "if a literary, dramatic, musical or artistic work or computer program is computer-generated" the author would be the person "by whom the arrangements necessary for the creation of the work were undertaken". This phrase is, nevertheless, somewhat problematic. Is the person "by whom the arrangements necessary for the creation of the work were undertaken" the person who built the AI, the person who trained the AI, or the person who fed the AI specific inputs?

Who would be the owner of a work created by an AI?

In many instances, once the work has come in to existence the authorship and ownership of copyright subsisting in it coincide. This, however, is not always the case; the exceptions are set out in s21 of the Copyright Act. That being said, as authorship of a work created by an AI is imprecise, it follows that ownership will also be difficult to determine.

Who would be responsible if an AI creates a work that infringes on another's copyright?

There is currently no legal framework that provides for an AI as an infringing party or even if an AI can be an infringing party. Therefore, should an AI create a work which infringes on another's copyright, it is unclear who would be held accountable for the infringement. It may be the person "by whom the arrangements necessary for the creation of the work were undertaken" but, amongst other issues, this "person" is very hard to accurately ascertain.

As things currently stand, we are in uncharted waters in regulating and managing AI created works, without the certainty required to address these new legal concerns. This leaves policy makers and industry partners with some serious and complex work to develop a legal framework that is both flexible and comprehensive.

Perhaps we can request Watson to do it for us.

Melamdowitz is a Partner and Ambrose an Associate with Spoor & Fisher.

Spoor & Fisher