Self-aware robots, androids or call-them-what-you-will have been part of science fiction almost from its beginnings. Recently in science reality, there’s been early, speculative discussion about “creative” works generated by these types of machines, and how copyright would apply.
It’s easy — and tempting! — to get wrapped around the axle when it comes to the prospects for artificial intelligence (AI) programs and their creation of original works. When works created by self-running software applications become more common, the result is both more possibilities and more challenges to existing copyright law. But let’s take a step back and consider what we know already, and then move on to what may soon be coming.
Applying today’s law
Think about programs like Google’s DeepMind, or the natural language generation program Wordsmith. These apparently copyright-susceptible expressions result from the operation of application code and algorithms. Because the programs themselves involve no specific human interference or guidance, the results might be best construed as the intellectual property of those who “worked the machine,” i.e. the users.
“Robots” themselves have no actual agency, let alone self-awareness. If there is any human interference or guidance, like a person setting parameters for how a program operates, then that person may be entitled to a copyright if the person’s contribution rises to the level of copyright protection.
When it comes to the rights of an AI itself, I think the key issue would be intent.
Logically speaking, you can’t have original expression without intent, and you can’t have intent without self-awareness. Despite popular articles warning about the coming of AI, a working program with awareness of its own existence and operations is still a long way off — at least according the more skeptical cadre of those studying AI.
Even if an output has the form and feel of a copyrightable work — for example a script written by a program called “Benjamin” and filmed as Sunspring — it may still fail to qualify if we require for expression. In other words, under our copyright rules as they currently exist, to qualify as protectable by copyright, a work — an original creation — needs to meet the definition spelled out in Section 102(a) of the Copyright Act (U.S. Code Title 17):
“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”