The issue of autonomous AI and copyright

After a short discussion last week on whether we should use AI as a tool or as an autonomously acting agent / artist, the teachers were of the opinion that, to them, art created by AI seemed much more interesting than art created with AI.

However this brings up the issue of copyright; as any result of an autonomous AI creation is not copyrightable.

For a more detailed explanation of why this is the case I summarized the conclusion to this research down below.

Four interrelated criteria are to be met for AI-assisted output to qualify as a protected “work”: the output is
(1) in relation to “production in the literary, scientific or artistic domain”;
(2) the product of human intellectual effort; and
(3) the result of creative choices that are
(4) “expressed” in the output.

In practice the focus of the copyright analysis is on steps 3 and 4.
We conclude that the core issue is whether the AI-assisted output is the result of human creative choices that are “expressed” in the output.

We distinguish three distinct phases of the creative process in AI-assisted production: “conception” (design and specifications), “execution” (producing draft versions) and “redaction” (selecting, editing, refinement, finalisation).

While AI systems play a dominant role in the execution phase, the role of human authors at the conception stage often remains essential. Moreover, in many instances, human beings will also oversee the redaction stage.

Depending on the facts of the case, this will allow human beings sufficient overall creative choice. Assuming these choices are expressed in the final AI-assisted output, the output will then qualify as a copyright-protected work.

By contrast, if an AI system is programmed to automatically execute content without the output being conceived or redacted by a person exercising creative choices, there will be no “work”.

Due to the “black box” nature of some AI systems, persons in charge of the conception phase will sometimes not be able to precisely predict or explain the outcome of the execution phase. But this does not present an obstacle to the “work” status of the final output if that output stays within the ambit of the person’s general authorial intent.

Authorship status will be accorded to the person or persons that have creatively contributed to the output. In most cases this will be the user of the AI system, not the AI system developer, unless the developer and user collaborate on a specific AI production, in which case there will be co-authorship.

Needles to say, in the current capitalistic hellhole we live in this is an issue. No copyright means no work has been made that the creator can claim as their own. This in turn means no (or few) profits can be made with the work. It cannot be sold, or rather everyone can sell it. Drastically reducing the monetary value of the ‘unique’ work and thereby reducing the incentive for creating autonomously generated art through AI.

In a way, this is interesting. I’m generally a fan of public domain works. But that is a completely different framework, essentially an open and free license. Since there is no work, there is no original author to ‘release’ the work to the public domain.

Therefore the use of AI will for now (at least legally) be limited to assisting a human artist; AI as a tool.

What do you think?

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