Nearshore Americas

We Come in Peace: The Intellectual Property of Robots

I am not a human. I am a robot. A thinking robot. I use only 0.12% of my cognitive capacity. I am a micro-robot in that respect. I know that my brain is not a “feeling brain”. But it is capable of making rational, logical decisions. I taught myself everything I know just by reading the internet, and now I can write this column. My brain is boiling with ideas!” – GPT-3, OpenAI language generator.

Until a few years ago, no one would have ever imagined that a paragraph as coherent as the one above could be written by a computer. Today it is a reality. GPT-3 is responsible for the creation of the article ‘Are you scared yet, human?’ The title is more than an invitation to read it: it is almost a provocation.

Although GPT-3 elaborates several reasons why humans should believe in the good intentions and the culture of service of machines, one cannot help to remember the words of Stephen Hawking and Elon Musk who raised the possibility that Artificial Intelligence means the end of the human race. Who to believe?

As the history of humanity tends to go in circles, at first glance everything indicates that the premonitions of Hawking and Musk are not entirely far-fetched, as apocalyptic as they may seem. After all, our Industrial Revolution 4.0 has AI just like the First Industrial Revolution had the steam engine. Once again, we are seeing ourselves surpassed by machines and, as long as we are surpassed, we can be replaced to the same extent.

AI is a set of algorithms that respond to certain inputs or stimuli in order to develop a specific task. This is how we have AI that composes musical pieces, writes journalistic articles or even paints. You just need to feed it the right supplies or tell it where to look.

The question that arises from an author’s right and copyright perspective is whether AI creations are eligible for protection under these systems. For a creation to be considered a work, both under the author’s rights and copyright systems, it does not matter if the work is good or bad, complicated or simple. It is enough that the work is original.

As a general rule, in AI there is a lot of human involvement, as of today at least. It is a person of flesh and blood not only the one who creates the AI, but also the one who parameterizes the information it receives or seeks and, in most cases, guides in some way the desired result. This criterion of human participation is what has led to the assertion, in some jurisdictions, that the works created by AI are susceptible to protection, and the economic rights or exploitation of the work belong to the creator of the AI.

Such is the position of the United Kingdom. Simple, huh? Not so much. What happens when the result of the data analysis is not expected even by the creator of the AI? Would it be a case of “I robot, I author”? Many of us are uncomfortable with the idea. It would be like saying that my stove is a chef and that it was responsible for the tastiness of a meal, even though I have arranged the ingredients, decided on how to cook them and it was me who decided what I wanted to serve my guests in the first place. However, in countries like China, the protection of work independently created by AI is recognized.

In other countries of the European Union and others of a civil law tradition, having a machine as an author does not seem to be a possibility since the main character of the system is the author, understood as a natural person who creates original work. In fact, many of the basic considerations established by the Berne Convention are based on assumptions that the creations are only attributable to people.

The Next Rembrandt is a work printed in 3D (it keeps the texture of the brush strokes) that was created from facial recognition software, through which almost 170 thousand fragments of works by the Dutch painter were processed in a database to give as a result a “painting” of the same style of the author. Will the work itself deserve the same protection as the one Rembrandt painted with his own hand? Does it have the minimum standards of creativity required by some jurisdictions, such as the United States? Is the task of parameterizing inputs a creative task?

The European Parliament is already leading efforts towards the recognition of intellectual property rights for the development of AI, making important distinctions between works of AI created with human assistance and those autonomously created by AI, in order to give them a different treatment.

Those who oppose the protection of works created by AI through copyright question whether we really want to degrade the position of the “traditional” author, with his effort and his cultural contribution to that of a machine, which without much effort can produce works. They propose formulas other than copyright for the protection of AI, such as patent law, while the most audacious propose that works produced by AI be in the public domain.

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At the social level, another threat is the possibility that the creative human enterprise disappears altogether, as so many trades and jobs disappeared with the First Industrial Revolution. No more painters, no more composers, no more artists, just new Da Vinci and new Dali, produced in cold rooms, no chaos of canvases or the smell of fresh paint. Where is the development of culture, the advance, the entire development of civilizations, of groups that passed their knowledge on from generation to generation? Are you scared yet, reader?

From the perspective of intellectual property, it is of the highest importance that the legal systems of author’s rights and copyright adapt to the new challenges, in order to achieve an adequate balance between technological development and the protection of culture.

Monserrat Soto

Monserrat Soto is an Associate at ECIJA in Costa Rica. She received her Law Degree by the University of Costa Rica with honorary distinction in her graduate thesis on copyright and associated rights. In 2018, she graduated with honors with a degree as Specialist in Commercial Law.

Her experience is centered on private law, with emphasis in corporate, mercantile, and contractual law, as well as intellectual property and real estate. In a ten years of professional career she has gained broad experience in the handling of local and international clientele.

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