Vanguard Magazine

teChNOLOgy www.vanguardcanada.com OCTOBER/NOVEMBER 2020 37 need to shape regulation before more re- strictive rules are imposed by government, to eliminating the uncertainty that lack of current regulation entails. An example is Microsoft which, like other large com- panies engaged in AI has established a set of AI principles; these include fairness, in- clusiveness, reliability and safety, transpar- ency, privacy and security, and accountabil- ity. Microsoft, based in Seattle, has been pushing legislators in Washington State to regulate AI, covering topics such as data privacy, facial recognition, biometric data and ethnic profiling. These are laudable goals. However while guidelines for use, and even regulation by government, of data privacy and use of facial recognition are important, perhaps even essential as we move forward into a world where AI will play an increasingly large role in citizens' daily lives, there remain a number of other areas where society continues to grapple with the effects of AI. One of these is copyright. The creation by AI of a work of art, piece of music or written work potentially subject to copy- right protection has already happened, raising a range of questions as to how to deal with such works. If only humans are capable of creating works that are subject to copyright protection (as the US Copy- right Office has made clear in a recent interpretation), then how does one deal with works produced by a seemingly au- tonomous machine? This was among the questions examined by the Committee on Industry, Science, and Technology (INDU Committee) of the Canadian Parliament during its recent review of the Copyright Act, and is currently the subject of a review by the US Patent and Trademark Office (USPTO). The US Copyright Office pro- vides some guidance on AI-created works, noting that it will not register works "pro- duced by a machine or mere mechanical process that operates randomly or auto- matically without any creative input or in- tervention from a human author". But what about a machine (and they ex- ist) that allows people to compose music (even though these people don't even have the ability to read or write music), by ma- nipulating various musical elements, such as rhythm, harmonics, etc. to blend them into a "new" piece of music? How much human creativity is involved? Not much, so is the end product a creation of the software, or is it the creation by a human enabled by the software? We already have the example of pho- tography, where human involvement in many cases seems to be decreasing. Ini- tially photography was thought to be an entirely mechanical process, devoid of creativity. Today, most people would not agree, and photographs have been pro- tected under copyright in most countries for many years. But as machines have progressed, there is less and less artistic creativity required to take a photograph, although one could argue that human in- volvement is required more than ever to take a good photograph. Nonetheless, today smartphone technology is so ad- vanced that about all that is required to take a passable photograph is a reasonable eye for composition and light. The device makes almost all of the technical decisions and in some cases, it even clicks its own shutter. Yet photographs, or at least most photographs, are protected by copyright. In the infamous Monkey Selfie case the putative issue revolved around who actu- ally clicked the shutter (it was the monkey) rather than the creative effort surrounding the taking of the photo by wildlife pho- tographer David Slater. When the US Copyright Office clarified that a copyright could be held only by a human, it opened the door to the whole question of what to do with AI-created works, as I noted in a blog post (https://hughstephensblog. net/2017/09/25/the-monkey-selfie- case-will-it-have-broader-repercussions- for-ai-and-copyright/) In determining who should own the copyright to a work produced by a com- puter program, for example, there are a couple of schools of thought. One is to confer the copyright on the software pro- grammer, or perhaps to share the copyright between the software programmer and the artist manipulating or operating the program. Another is to take the position that even with a software program, there is no creation without human intervention, and the copyright should go to the artist using the program, in the same way that an author claims the ownership of a book written on a laptop, not the producer of the software or hardware that makes the laptop function. Under this interpretation, there is always human judgement involved in directing the program, making choices, steering the system, accepting its outputs, etc., much in the same way that a film di- rector creates an audio-visual work. These are the kinds of issues that the courts and legislators are beginning to address. There are broad implications…and even ethical considerations. If work produced with or by AI (even if under human "supervision") cannot be copyrighted, what impact will this have on creativity? In this case, any AI-produced output would be in the public domain im- mediately, with no economic return to or incentive for the creator. This would not only discourage the development of AI but also handicap creators. What happens if there are multiple creators, for example, a software programmer, a technician who manipulates the program to create a new work (such as a computer-generated im- age), and perhaps even the company own- ing the proprietary software? This would be a nightmare for companies seeking to licence the end product, not knowing who has the copyright. Given the potential for confusion, sticking to basic principles of creativity and ownership will be important. There is another important issue—in- fringement–that will need to be addressed if AI-generated works are denied copy- right protection. What happens when there is unauthorized reproduction of an AI-created work? If there is no copyright, there is no infringement. A Chinese court recently addressed this issue, finding that an automated article written by a program called Dreamwriter, created by Tencent, which had been copied and published without permission by another Chinese company, Yinxun, was nevertheless subject to copyright protection because it met the originality test through the involvement of a creative group of editors. These people performed a number of functions to direct the program, such as arranging the data in- put and format, selecting templates for the structure of the article, and training the al- The creation by AI of a work of art, piece of music or written work potentially subject to copyright protection has already happened, raising a range of questions as to how to deal with such works.

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