Artificial Intelligence and copyright – superficial observations

Whilst according to Stephen Hawking the jury is still out whether AI will be either the best or the
worst thing ever to happen to humanity, it is already part of our daily lives. Not only playing Chess
or Go but advancing human understanding and activity in many diverse fields such as healthcare,
financial services, weapons and music streaming playlists. Probably even better for the
environment than the unnecessarily climate destroying fad (one hopes) that is non fungible
tokens. Lawyers will also benefit from increasing computer power and infrastructure in preparing
their arguments; but artificial intelligence will never be able to plead like Atticus Finch, or preside
imperiously over proceedings like Judge Judy Rinder.

The potential of artificial intelligence seems without frontiers to explore strange new worlds,
to seek out new designs. AI applications have considerable competitive advantages to humans
within their area of training. But they lack human characteristics: irrationality and fallibility, the
last remaining unique selling points of humanity. AI applications can process specific perceptions
(well, data) at the time they arrive whilst the human brain requires some neuronal delays to help
the brain computing and contextualising all impressions to obtain a complete picture of what is
happening and not to overload our brain. A multitasking (“wide”) Artificial General Intelligence
seems still some time away, but specific (“narrow”) AI applications are successfully and widely
employed now.

Policymakers expect to receive billions for their national economies due to world beating artificial
intelligence; according to PricewaterhouseCoopers Artificial Intelligence will contribute $15.7trn
to the global economy by 2030; other consultancies have delivered similar predictions (e.g. JP
Morgan). Thus, the escalating policy activities at national and international level. More
consultations have been announced; a welcome opportunity to ruminate timeworn
considerations, all over again.

Let’s zone into AI’s contribution to the cultural world: AI applications are painting (such as the
unsupervised e-David robot); writing prose and poetry as well as journalistic articles (such as gpt-
3); generating music (such as AIVA and Melomics) and much more. They have been doing this for
many years with varying but accelerating success; the sky is the limit with computing technology
available today, not to mention future technologies.

There is a lively discussion on whether works entirely manufactured by AI applications (i.e. not AI
assisted creations) should benefit from intellectual property such as copyright. A legal concept
deeply interlocked with human endeavour; this has already been amply analysed by philosophical
and legal scholars. And, amply means that everything has been said already, admittedly not by
everybody yet, as the philosopher Karl Valentin would have commented). Additionally, art is an
intrinsic human endeavour expressing human experiences from affirming their existence with
hand stencils in caves in Sulawesi to celebrating the brotherhood of humankind with Beethoven
9th Symphony. An AI application lacks personality, intention, will and self-reflection. A computer
would never come up with the phrase: “Je est un autre”.
A computer cannot experience life’s senses: love, suffering, madness; it cannot explore the
unknown in its own soul, the unnamed and unspeakable thing which is someone else, as Arthur
Rimbaud described a poet’s life to Paul Demeny in 1871. More significantly, a computer cannot be
inspired by Absinth.

Definitions of Artificial Intelligence are extensive; every person commenting on AI provides their
own world beating description of what currently is an algorithm using existing datasets to make
predictions. Is this creative, is this intelligent? The answer clearly depends on the eye of the
observant beholder; and how they define creativity and intelligence. In the literature of the last 3
millennia each observer will be able to select their own definition to suit their argument. But does
it matter, or should it even matter? Well, other than offering the opportunity to display the
certainly admirable creative intelligence of the classically educated commentator referring to
every thinker from Appolonios to Kahneman. via Descartes, Hegel and Schopenhauer. But as Karl
Marx might have observed: philosophers have hitherto only interpreted artificial intelligence in
various ways; the point is to use it.

In the absence of Court decisions academic discussions on copyright for AI produced goods are,
well, academic. Likewise, deliberations on whether exceptions apply, and if so which, are
irrelevant without legal authority. Generally, the answer on whether fair use or text and data
mining exception apply or not depends on the ideology of the respondent supporting tech
companies or creators; the “footballification of AI” (mis)appropriating a term coined by James
O’Brien.

What is the economic value of AI produced cultural goods? Consumers pay for AI produced
paintings and music; but what are they actually acquiring other than the physical embodiment of a
product manufactured by an algorithm. A corpus mechanicum without the underlying corpus
mysticum expressing the personality and creativity of the author. Is it sufficient to confirm
intelligence that the black box process by which the AI application generates predictions from
existing datasets is a mystery, even to its developer? Nobody knows what happens in the brain of
the creator either.

Whilst intellectual property is certainly appropriate for the AI application as a thing-in-itself, it

seems maladjusted for the produced output. First, and foremost due to the anthropocentric
approach to copyright and droit d’auteur (Hegel, Locke, LeChapelier as well as the US Copyright
Office and the European Union institutions); secondly, from a legal systematic approach which
generally does not protect mathematical equations due to their lack of originality/ modicum of
creativity; thirdly, from a practical point of view there seems little, if any claims by AI applications
that the work has been infringed (noting the famous phrase from Peterson J that if it’s worth
copying it’s prima facie worth protecting). Fourthly, from a metaphysical point of view AI
applications are not expressing their free will when generating cultural products (Intentionally
ignoring philosophical reservations about the existence of an undetermined human free will in the
first place). At least as humans, we’re all individuals, we’re all different; AI is not. AI produced art
is without emotion (there is no love and there is no pain, nor is there anger as energy), an effect
without cause as Richard Wagner would arrogantly say. Where is the art in artificial?
This is notwithstanding the quality of, for instance, AI produced music; its authenticity might be
comparable to human manufactured music. But this is not the place to emotionally and
subjectively assess the quality of music, artificially or humanly produced. Both will pass the Turing
test. Given the perfection of machines, human fallibilities and unpredictable emotions can be
programmed into an AI application.

It seems that there are plenty transactions already happening with AI produced cultural goods;
options range from the sale of a painting to subscription-based access to AI generated production
music. Reality will decide the future of artificial intelligence. And already existing technology is
several steps ahead of what at least my brain can compute. Presentations on whether there are
intellectual Property Rights in AI produced goods have been appealing for almost a decade but
they are repetitive and ultimately irrelevant. Whilst AI applications and AI produced cultural goods
are already traded, it is for the courts to decide whether there is IP in AI applications or AI
produced cultural goods (AI output); courts will also decide what licenses are required for the
training process of artificial intelligence (mainly machine learning). But is this still relevant gin
view of commercial transactions which are happening?

In all the excitement about the opportunities created by Artificial Intelligence we must ensure that
the human creators and artists are properly remunerated for their talent and work, collectively
and/ or individually. Creators and artists already employ new technologies but their endeavours-
training the machine or creating with its help - need to be remunerated.

Florian Koempel - This paper does not necessarily represent the views of the author, in particular
in case they are wrong