[Feature: AI and Intellectual Property Rights] Tsukasa Aso: AI-Generated Works and Intellectual Property Law

2023/06/05

"Keio University is a private university in Japan, with its headquarters located in Shibuya, Tokyo. Its predecessor was a school for English studies founded by Yukichi Fukuzawa in 1858, and it was renamed to its current name in 1867. Keio University is one of Japan's leading prestigious universities, boasting high educational standards in a wide range of fields including economics, law, medical sciences, science and technology, and humanities. Furthermore, as a comprehensive university, Keio University has numerous faculties, graduate schools, professional graduate schools, the School of Medicine, and the Faculty of Nursing and Medical Care."

This is the result of typing "Keio University" into the recently popular ChatGPT and asking for an explanation (results from early April 2023). Of course, there are some inaccuracies (for example, the headquarters is in Minato City, it was a school for Dutch studies rather than English studies in 1858, and it became Keio University in 1868), but the response feels as though it was written by a human.

Recent AI, including not only such linguistic AI but also image-generation AI, has become capable of creating things close to human creation. Consequently, eventually (or perhaps it is already the case), things generated by AI (generated works) will become completely indistinguishable from those created by humans. So, will such AI-generated works be subject to protection under intellectual property law? If they are not subject to protection, should we aim to protect them through legislation?

In this article, I would like to introduce the discussions taking place in Japan regarding the relationship between AI-generated works and intellectual property law *1.

Since I am not an AI expert, I will explain based on generally accepted content. Even when we say "AI," various technical levels are envisioned, and there seems to be a distinction between Artificial General Intelligence (also called strong AI) and Narrow AI (also called weak AI). Artificial General Intelligence is an AI that can perform various types of thinking and examination and can respond to situations it encounters for the first time—essentially an AI like Doraemon that can do anything. On the other hand, Narrow AI is an AI that excels only in thinking and examination regarding specific content, such as an AI whose sole purpose is to win at chess. Since Artificial General Intelligence has not yet been realized, Narrow AI is the premise here.

Furthermore, under current circumstances, generation is not performed by AI without any instructions from a human (even in the ChatGPT example above, I typed "Keio University" and clicked), so it is also a premise that human involvement, such as pressing a minimum number of buttons, is necessary. Here, assuming a case of "just typing Keio University," I would like to consider the protection of AI-generated works created with simple instructions *2.

1. Copyrighted Works

Article 2, Paragraph 1, Item 1 of the Copyright Act defines a work as "a creative expression of thoughts or emotions that falls within the scope of literature, science, art, or music."

To be a copyrighted work, it must first be an expression of "thoughts or emotions." It is considered that the person who expresses these thoughts or emotions is a natural person—that is, an ordinary human. For example, a photograph taken by a monkey does not manifest human thoughts or emotions, so it does not meet this requirement. Therefore, AI-generated works created with simple instructions, such as just pressing a button, are not expressions of thoughts or emotions made by a human and do not satisfy the requirement for thoughts or emotions.

Since they do not meet the thoughts/emotions requirement, AI-generated works do not become copyrighted works, but I will mention the requirement of creativity as there is some debate. Creativity has traditionally been said to be the manifestation of the author's personality or individuality. This means that human personality or individuality appears in the creative process. Therefore, according to this traditional concept of creativity, since AI is not a person, AI-generated works also fail to meet the creativity requirement.

On the other hand, recently, there is an influential view that creativity is the range of choices in expression. This is a position that considers whether there is creativity based on the extent of the options for expression—that is, the range of choices—available when expressing certain content. Among these, there is a theory called the "range of choices in competition-law expression," which examines the room for choice in expression for someone other than the expresser who intends to make a similar expression. In that case, creativity is judged by whether a range of choices remains for others based on the resulting AI-generated work. Usually, even with an AI-generated work, a range of choices remains for others, so it would satisfy the creativity requirement.

Furthermore, the final requirement of "falling within the scope of literature, science, art, or music" is considered to be met even by AI-generated works.

Looking at it this way, it is understood that AI-generated works cannot satisfy the thoughts/emotions requirement, regardless of the other requirements, and thus do not become copyrighted works.

2. Subject

The issue of protection under copyright law for AI-generated works does not end there.

Article 2, Paragraph 1, Item 2 of the Copyright Act defines an author as "a person who creates a work." Unless AI is granted legal personality, AI cannot be an author because it is not currently recognized as having legal personality. If that is the case, the question of who becomes the author arises.

In this case, there are two people who might be involved in the creation. One is the person who gives the instruction to the AI to create, namely the AI user (the AI user who typed "Keio University": the author). The other is the creator of the AI system, such as the person who created the program or the trained model (the creator of ChatGPT).

Here, creative intent and creative contribution are required for a work to be a creation by a human. Regarding the AI user, there is no creative intent or creative contribution from just giving a simple instruction (like typing "Keio University"). Consequently, an AI user who only gives simple instructions does not become the author of the AI-generated work. And the creator of the AI system would basically reach the same conclusion. This is because, normally, the person who created the program or the trained model has no creative intent or creative contribution toward the AI-generated work.

3. The Problem of False Attribution

As a result, AI-generated works created with simple instructions do not become copyrighted works as mentioned earlier, and neither an author nor a copyright holder exists.

What is pointed out here is a problem called the problem of false attribution (pretension). This is the concern that if AI-generated works are currently not protected by copyright law, people may appear who falsely claim that AI-generated works, which cannot receive copyright protection, are human works. If this situation is left unaddressed, there is a risk of harming the safety of transactions such as licensing—for example, if it is later discovered that a work was actually an AI-generated work that is not a copyrighted work.

4. Rights Infringement

As described above, it is currently difficult for AI-generated works created with simple instructions to receive protection as copyrighted works under copyright law.

And the issue regarding AI-generated works is not only whether they are protected as copyrighted works. Whether copyright infringement occurs when an AI-generated work is created using another person's work is also an issue. A typical example is whether copyright infringement occurs when a single painting in the training data and the painting output by the AI are very similar.

For copyright infringement to be recognized, it is necessary to have relied on another person's work and to be using a work that is identical or similar to that person's work. "Reliance" means accessing another person's work and basing the new work on it, and "similarity" means maintaining the identity of the essential characteristics of the form of expression in the other person's work.

Reliance is a particular problem in relation to AI-generated works, and there are various discussions regarding the circumstances under which reliance is recognized. For example, there is a position that recognizes reliance if the work used to train the model remains as data, or even if it does not remain, if there was access to the work in question. This is a position that recognizes reliance simply because the AI learned that picture. There is also a position that affirms reliance if the original work contributed to the formation of a set of parameters and the generated work was produced based on that set of parameters, and denies reliance if the original work did not contribute to the formation of the set of parameters.

Furthermore, the question of who the infringer is when an AI-generated work is created is also an issue. Who among the AI user and the creator of the AI system becomes the person who infringed the copyright? If both are the same person, there is no doubt that person is the infringer. Then, what about cases where the creator of the AI system (the creator of ChatGPT) and the AI user (the author) are different, as in the example at the beginning? In this case, the AI user would likely be the infringer. However, since negligence is required for damages, if the AI user does not know that the AI learned from another person's work, it is possible that the AI user is found not to be negligent. Whether the creator of the AI system also becomes an infringer in this case can only be said to be on a case-by-case basis. Since the subject of reproduction is judged by considering various factors such as the object and method of reproduction, and the content and degree of involvement in the reproduction, whether the creator of the AI system performed the reproduction is judged after considering these factors (even if they are not found to be the infringer, they may bear liability for damages based on joint tort as an aider).

In any case, since there are no judicial precedents yet, it is unclear how this will be judged in the future.

1. Inventions

Article 2, Paragraph 1 of the Patent Act defines an invention as "the highly advanced creation of technical ideas utilizing the laws of nature." Similar to the interpretation of the definition of a copyrighted work, if one takes the position that human involvement is necessary for an invention because terms like "ideas" and "creation" appear in the definition, then AI-generated works would not be recognized as inventions. On the other hand, since an "idea" in the Patent Act is a technical idea and an objective existence, it can be considered different from the "thought" linked to human thought in the Copyright Act. Furthermore, if an invention is a technical solution for a certain purpose, there could be an interpretation that an invention does not necessarily need to be a human creation. From this position, an AI-generated work is evaluated as an invention.

2. Subject

The main clause of Article 29, Paragraph 1 of the Patent Act stipulates that "a person who has made an invention that is industrially applicable... may obtain a patent for that invention," and it is assumed that this "person who has made an invention" is a human. Based on this interpretation, an AI, which is not a person, cannot be an inventor.

3. Document Description Requirements

Furthermore, the name of the inventor is required as a description requirement for the application at the time of patent filing (Article 36, Paragraph 1, Item 2 of the Patent Act), and here too, the inventor is assumed to be a human.

Finally, regarding trademarks protected by the Trademark Act (such as the word mark "SONY" or figurative marks like a bitten apple) and indications of goods or services (such as trademarks or trade names) that are issues under the Unfair Competition Prevention Act, these do not assume human creation, so even AI-generated works created with simple instructions are subject to protection.

As described above, in laws that protect creation, such as the Copyright Act and the Patent Act, the protection of AI-generated works created with simple instructions is in a difficult situation. Therefore, legislative proposals for their protection have been made.

1. Copyright Law

Regarding content such as pictures and music, there is a position that aims for protection under copyright law because there is no outward difference between human creations and AI-generated works. From such a position, a proposal is made to amend the thoughts or emotions requirement in the definition of a work. And in this position, it is proposed that the author does not exist, and for the copyright holder, the proposal is based on the provision in Article 29 of the Copyright Act that "the copyright to a cinematographic work belongs to the maker of the cinematographic work if the author has promised the maker to participate in the making of the cinematographic work," and the definition of a maker of a cinematographic work in Article 2, Paragraph 1, Item 10 of the Copyright Act as "the person who takes the initiative and responsibility for the making of a cinematographic work." That is, it is a proposal that if a person has the "initiative and responsibility" for the generation of an AI-generated work and publishes it under their own name, that person holds the copyright. Since there is no author, moral rights of the author do not arise, but it is argued that there is room for substitution of moral rights of the author with economic rights, etc.

On the other hand, if the value of protecting AI-generated works lies in the investment required for their production, it has also been pointed out that protection by neighboring rights is more desirable than copyright.

Furthermore, as a response to the problem of false attribution where AI-generated works are falsely claimed to be human works, the application of criminal penalties is also being considered. Article 121 of the Copyright Act stipulates that "a person who distributes a reproduction of a work that displays the real name or a well-known pseudonym of a person who is not the author as the name of the author... shall be punished by imprisonment for not more than one year or a fine of not more than 1,000,000 yen, or both." (The imprisonment part will become imprisonment with work once the law, which is currently not yet in force, is enforced). Since AI-generated works created by simple instructions are not copyrighted works, the wording "reproduction of a work" needs to be amended, and forms of provision and presentation other than distribution need to be added, but it is a proposal to deter false attribution through the application of criminal penalties.

2. Patent Law

Even if one interprets that an invention does not require human creation, since AI is not a person, the description of the inventor in the application would need to be amended. As an amendment plan, there are proposals to make the inventor "the person who was involved in the creation by AI" or "the person who possessed the invention with the intent to own it."

3. Others

In addition, positions have been shown that if an AI-generated work acquires distinctiveness that allows it to be distinguished from other people's goods through use, that value should be recognized and protected by a system similar to the Trademark Act or the Unfair Competition Prevention Act, and that legislation within the Unfair Competition Prevention Act focusing on publicity value (the power to attract customers) is also conceivable.

4. Arguments for Legislative Caution (Unnecessary)

On the other hand, since no particular need for the protection of AI-generated works created with simple instructions is currently observed, the argument for legislative caution (unnecessary), which holds that protection for such AI-generated works is currently unnecessary, is also influential. As for the position of the Japanese government, while it will continue to consider the protection of AI-generated works, there is currently no momentum to create new legislation.

So, how should we think about this? If asked whether we should amend the law to protect AI-generated works created with simple instructions, I am currently skeptical.

Even if legislation for the protection of AI-generated works created with simple instructions were to be considered, as the argument for legislative caution (unnecessary) states, providing new protection would mean that acts that were previously free would be prohibited, so the necessity of legislation becomes an issue. According to the incentive theory, which states that protection by intellectual property law is necessary because development costs cannot be recovered without protecting intellectual property, leading to a decrease in new creations, the premise is a situation where creation would not occur if valuable information were not protected. However, at present, specific cases where protection by intellectual property law is necessary for AI-generated works have not been clarified (it might be said that AI-generated works are being actively created even if they are not protected by intellectual property law).

Therefore, it is difficult to affirm the necessity of providing any new protection for AI-generated works at this time. It would be appropriate to continue considering whether such protection is necessary while monitoring the situation in the future.