Artificial Intelligence and Copyright

Carlos Enrique Castillo G.

ccastillo@romeropineda.com

The topic deals with the creation of works by equipment, machines, devices or instruments in which artificial intelligence is applied and the protection or not of such works, under the protection of Copyright.

The right to Intellectual Property, in general, arises from the need to provide legal protection to the creations of the intellect. Starting from this, let us first define what the intellect is. I cannot identify where I obtained this information, which is repeated and repeated, but the intellect is a faculty of the mind that allows one to learn, understand, reason, make decisions and form a certain idea of reality. It is an inherent and exclusive factor of the human condition. On the other hand, it is worth mentioning that the manifestation of intellect is creativity, that faculty, capacity or ability of the human being to invent, to generate something new or create new things; which has allowed human beings to transform their environment, challenge the forces of nature, face their original limitations, and place them on the path of their own evolution. In this way, it is established that since intellect is a faculty of the human being, it is precisely the human being who has developed or created artificial intelligence.

Secondly, a work is for Copyright, paraphrasing the distinguished Dr. Delia Lipszyc, the personal expression of the intelligence or talent of the intellectual creator, who develops a thought that manifests or materializes under a perceptible form, under parameters of originality, creativity and good faith, and therefore is suitable for legal protection.

In the case of works created by a device controlled by artificial intelligence, this is where the issue arises of who owns the copyright in such works. On one occasion, with a group of students, I used an example to respond to a similar situation, like this: if a novelist writes his work on a computer with a specific program, what rights does the novelist enjoy and what rights does he enjoy? the owner of the computer program? The first responses were quite interesting, from disqualifying the owner of the program, placing the computer and the program as mere tools or instruments, to attempting to recognize the owner of the program as co-author. By insisting and promoting the debate based on elementary concepts such as those noted above, the unanimous conclusion was that the only owner of the work is its author-creator, through his intellect, without taking into account the tools of those that he attends; The same thing happens with the painter's brush, the sculptor's chisel, the photographer's camera, the draftsman's pencil, the musician's musical instrument, etc. etc

Then in a specific case, there was a debate regarding the ownership of a satellite photograph, whether the owner should be the provider of the satellite service and owner of the photography equipment, or the institution that contracted such service? The response and solution to the case was unanimous, the owner of the photograph is, and must be, the institution that contracted the service - commissioned work.

Well, in the case of works created by artificial intelligence, the situation to be determined is whether the person or programmer who created the algorithm that develops the activity from which the work arises should be considered as its author, or Well, if the artificial intelligence (machine) should be considered the creator and owner of the copyright regarding the resulting work.

It should be taken into account that the main objective of artificial intelligence, according to Wikipedia, is to replicate cognitive processes in machines, that is, it involves creating machines that imitate or replicate human intelligence, to perform certain tasks and, at the same time, These machines can improve their performance, according to the information they collect. However, this creative effort is not new, if we take into account that the first automata (devices with their own movement) date back to approximately the year 1,500 BC, capable of performing common tasks for human beings, or to facilitate them. daily tasks, repetitive tasks that could be replicated with some complex system (usually mechanical), and this is how machines began to be created capable of repeating the same tasks that man performed.

For many, the author of the work resulting from the application of artificial intelligence is the natural person who has created or developed a program or algorithm that replicates human activity, which implies that artificial intelligence is not considered the author of works. However, others consider that the artificial intelligence, creator of a certain work, should be recognized as the author. The latter is the result of how they define artificial intelligence - the ability of a system to correctly interpret data or information, and thus learn and use that knowledge to achieve specific tasks and goals - in itself, this highly qualified intelligence. As artificial, it is a branch of computer science, responsible for studying computing models capable of carrying out activities typical of human beings. However, this concept does not take into account that the starting point is that artificial intelligence was not originally created from nothing, but from human intervention, from a determined and specific human being.

To date, intelligent systems have been developed capable of writing their own programs, thus creating works that emerge from these new programs. Which requires us to reconsider the initial question, who owns the ownership or copyright, regarding the works thus created?, to artificial intelligence? Would this represent a leap from the natural person, to the social person, to the electronic person or digital person?, recognizing the legal personality of artificial intelligence. The above would also require the rethinking of concepts such as the inherent moral rights and the material or economic rights derived from the work.

Maintaining the pro-human position raises questions in certain forums regarding a probable negative effect on innovation and creativity, by discouraging research and development in this area. Position that I do not share. From a historical perspective, I already mentioned that the creation of automata dates back to approximately 1,500 BC, and the accelerated development of new technologies has not been affected by the recognition or not of intellectual property rights in favor of machines, it has been quite the opposite.

Nor do I share the fear of other sectors, in that, by recognizing machines, equipment or devices, as authors of works, it could have unpredictable or negative consequences, especially in the event of possible or hypothetical conflicts between artificial intelligence and the programmer/human who created it. Who would represent artificial intelligence in the face of a conflict against the programmer? How would a power of attorney document granted by artificial intelligence be granted and legalized? Would an artificial intelligence device resolve it? How would the power be executed? failure given by an artificial intelligence program?

I close with the following fact, to date, no machine has claimed for itself, any right over any creation or work, at least they have not been programmed to require such a right, it is a matter that third parties, on behalf of the artificial intelligence, they intend to recognize rights that are not even within the scope of a real case (not at least in the country), they are just mere matters of opinion.