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When an algorithm becomes creator

by Felipe Dannemann Lundgren

May 23, 2019

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The creation of fundamentally creative works by computers is already a reality. Machines already have the capacity to produce literary texts, musical works, audio-visual works and even (high quality, by the way) works of art.

It was recently reported that a famous Rembrandt painting had been reproduced by artificial intelligence applications, combining techniques of facial recognition, three-dimensional printing and algorithms (in a project entitled “The Next Rembrandt”). The result haunted the world, both artistic and scientific, given the degree of similarity between the replica and the original work by the famous Dutch painter.

n less popular areas, such as the legal world, the use of artificial intelligence applications is also common, helping judges and law operators in the preparation of case-law research, opinions, contracts and even in the preparation of decisions. Names such as “Victor” (the artificial intelligence system used in the Supreme Federal Court), “Socrates” (Superior Court of Jutice) and “Bem-Te-Vi” (Superior Labour Court) are already part of the daily life of lawyers and members of the judiciary and represent an irreversible trend.

Reinforcing this impression, the “hiring” of the music application “Endel”, which specialises in the creation of soundtracks by algorithms, by Warner Music, one of the largest companies in the phonographic world, demonstrates the economic importance that the issue has already acquired. It may sound a little surreal, but this means that a software joins the likes of Ed Sheeran, Alanis Morrisette and Anitta on the list of artists hired by the label.

In addition to the economic and social impacts mentioned above, the use of machines and computers to produce works traditionally linked to human creativity and intellect, presents enormous challenges for the legal field, more specifically in the field of intellectual property.

Of course, there are interesting legal issues and complex solutions related to computer-made creations.

Questions about the authorship of works and authors’ moral and property rights are becoming more frequent. It is even questioned whether a work produced by an artificial intelligence application deserves the protection of copyright. After all, can it be said that an eminently mechanical, machine-made work can be considered a creation of the spirit?

And issues related to plagiarism and unauthorised reproductions of third-party works? What legal protection is there in cases of infringement by means of works created by computer algorithms? Is the programmer who wrote the algorithm liable for possible damages, or is it the person who used the computer program to infringe the third-party work?

These are all complex legal issues that are difficult to solve, and there are no concrete answers to these challenges, at least for now. There is no doubt however that these issues must be addressed by the legislator in the near future given the speed at which technology evolves. In other words, creative works made by artificial intelligence applications are already a reality and, at some point, will need to be protected by the current legal system. Maybe that moment has already arrived.

The Brazilian Copyright Law (Law No. 9,610/98), for example, determines that the author is the “individual” who created the literary, artistic or scientific work, which leads many experts to defend, appropriately, that authorship of a work can only be attributed to a human being, even if it is the person who programmed the machine or wrote the machine operating algorithm.

There are already some indications of how to address the issue in other countries. In pioneering legislation, the 1988 British law that protects rights to creative works in the United Kingdom defined that in computer-generated artistic works the author is the person who makes the necessary arrangements to create the work, that is, the person responsible for making the computer program operate in the creation of the creative work. It is an interesting and quite pragmatic solution, increasing legal certainty for content producers.

While in the USA, the American copyright registration body does not allow the protection of works produced by machines or by a mere mechanical process, thus creating an important obstacle to the registration of works created by computer programs and, as a consequence, to the exercise of rights against potential infringers.

A similar issue had already been faced with the introduction of cameras onto the market. At the time, many argued that photographic works would not deserve copyright protection, because they are a mere mechanical reproduction of natural phenomena, landscapes or people. With the passing of time and with the diffusion of the technology and the popularisation of photography, this understanding has been overcome, and it is now a settled matter that photographic works deserve protection.

The question of legal protection for creative works prepared by computer programs seems to be following the same path, which, in our view, is the right one, given the economic importance that this type of creation already has in our society and the fact that technological evolution is a path of no return.

The law must adapt to the modern reality.

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Felipe Dannemann Lundgren

Board Member

Lawyer. Master’s degree (LL.M) in Intellectual Property and Competition Law Munich Intellectual Property Law Cente[...]

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