WHAT IS THE IMPACT OF MONKEY SELFIE CASE ON ARTIFICIAL INTELLIGENCE’S COPYRIGHT OWNERSHIP?
Artificial Intelligence (AI) is a highly advanced technology which affects human work in many sectors. The creative industry is one of the most affected sectors from AI applications. There is a growing body of legal literature that seeks to understand primarily how AI works in the art, music, film and other creative sectors. For instance, ‘The Next Rembrandt’ project came up with the idea of creating the next painting of Rembrandt, who was a Dutch artist who lived and died in the 1700s. AI software analysed Rembrandt’s paintings on different scales such as brush movements, the height of the paintings, colour schemes, and lines. As a result, the painting called ‘The Next Rembrandt’ is created. Another example is a company called AIVA. Its mission is to compose music entirely created by AI. The AI programs written by the software developers work for AIVA created music for several advertisements and films. Besides, The ‘Portrait of Edmond Belamy’ is created by GAN (Generative Adversarial Network), which is a type of AI software and sold for 432,500 American dollars in 2018. Paris-based arts-collective ‘Obvious’ advertised this painting as an artwork of an algorithm. Hence, investigating copyright ownership over AI’s creations is a continuing concern within Intellectual Property law literature.
Thus far, there is no agreed solution to the uncertainty of the copyright owner of AI’s creations. European Union (EU) has not recognised AI’s copyright ownership over its creations because of the lack of legal personality. Currently, this argument is acceptable since it can be easily applicable to practical issues. However, by the rapid growth of technology and autonomous nature of AI systems, IP law scholars are questioning whether one day AI can replace with humans in the creative industry. This question is very critical because the main reason for granting IP rights to a person is assuming that the work is a product of a creative mind and intelligence. Now, the intelligence is not peculiar to human beings, how will IP laws treat to these systems? Is the “creativity of a person” the same with machine creativity? What do we understand from creativity in the first place? Moreover, what will happen in the age of superintelligence?
To have a deeper understanding of AI’s copyright ownership, we need to analyse non-human authorship and first copyright ownership. Even though AI in copyright law is a new phenomenon, non-human authorship has been discussed before. The most popular case in this field is Naruto v. Slater №16–15469 (9th Cir. 2018) which primarily examined awarding an animal over its selfies. When David Slater the wildlife photographer, left his camera unattended in the reserve. Naruto allegedly took several photographs of himself. Slater and Wildlife Personalities, Ltd., published the Monkey Selfies in a book that Slater created through Blurb, Inc.’s website in December 2014. The book identifies Slater and Wildlife as the copyright owners of the Monkey Selfies. However, Slater admits throughout the book that Naruto took the photographs at issue. People for the Ethical Treatment of Animals, Inc.(PETA), the guardian or “next friend, raised a legal claim against David Slater which includes a statement about Naruto, a Crested Macaque’s copyright ownership over Monkey Selfies. The court held that the monkey has lacked statutory standing because the Copyright Act in the U.S. explicitly excludes animals from filing copyright infringement suits. Additionally, U.S. Copyright Act recognises only humans as authors of work which also means non-human authorship is not enforceable in the U.S. copyright law. According to this fact, the court did not grant copyright to Naruto and rejected the claims against David Slater.
Naruto v. Slater №16–15469 (9th Cir. 2018) was an unprecedented case in 2018, even though the court decided not to award the non-human author of selfies. The strong relationship between this case and AI’s copyright ownership stands on non-human authorship issue. It should be noted that the author and copyright owner are not the same legal status. Here, authorship has been discussed but there is no doubt that non-human authorship causes first copyright ownership of non-human creatures. Law literature usually struggles on finding sample cases to AI applications. I believe waiting for new decisions on AI is not a solution but we, as AI and IP law researchers, need to examine similarities on key points in cases which are ultimately interpreted to non-AI-related cases.
Consequently, Naruto v. Slater №16–15469 (9th Cir. 2018) also known as ‘Monkey Selfie case’ has brought new perspectives. The court has discussed copyright protection key instruments such as originality and creativity in the scope of non-human authorship. This case remains its importance because when the U.S. court analysed whether a monkey may hold the copyrights of a photograph probably judges have not thought about that this case may be an example for AI’s copyright ownership.
