With AI, innovation is out-pacing the law

Provided by RM Tucker Attorneys

By Ryan Tucker

Topics Intellectual Property Law | Technology Law

26 Mar 2018

The future isn’t tomorrow. It’s now. And you need to prepare yourself and your business.

The future isn’t tomorrow. It’s now. Because artificial intelligence (AI) is exploding across all industries. Technology companies are innovating so rapidly that even those companies that are not necessarily ‘tech companies’ are becoming more and more high tech in their delivery of goods and services.

As all innovators know, imitators, infringers, and appropriators are never far behind. What’s more, innovation is happening so quickly that policy-makers are being forced to anticipate issues that don’t necessarily exist yet.

The bottom line is that innovation is outpacing the law.

What is artificial intelligence (AI)?

AI is the theory and development of computer systems and software able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.

Usually, the effect of the implementation of these systems leads to speedier, more accurate and efficient results, making our lives easier – think Siri, Watson, Google, Amazon, Facebook and other social media analytics etc. These are all examples of AI that are impacting our daily lives (for better or worse) today.

Which intellectual property rights are affected by AI?

Well, pretty much all of them. From patents, where software inventions, which are the product of the theoretical implementation and development of computer systems in replacing actions normally conducted by humans, to designs, where either aesthetic or functional features of the AI could be protected, to trade marks and copyright. This piece will focus on copyright and the implications of AI, as computer programs are specifically included as a type of copyright work protected in terms of the Copyright Act.

Who owns the copyright?

On top of the obvious issue of warp speed and the possibility of time travel, the question of who owns the copyright to machine-generated works, and to the machine itself, is as complex and complicated as understanding the algorithms behind them.

To illustrate, AI reduces the role of the human being in the creative/innovative process to the extent that some of the historic concepts and principles of intellectual property law simply no longer apply – or, at least, will have to be interpreted differently in future.

Generally, two of the key issues in relation to copyright law are authorship and ownership. But these issues are intricately entwined with the creation of the copyright work, in this case, the computer program, itself and its subsistence. Therefore, one always needs to consider originality, whether the work exists in material form, is made by a “qualified person” or is published in the requisite manner for copyright to attach to the work.

Our current Copyright Act

Our Copyright Act dates from 1978, when AI was not even contemplated. Its outdated provisions relating to computer programs (a form of software) suggest that this is the IP right that has struggled most to keep up with innovation. To remedy this (amongst other issues), the Copyright Amendment Bill was drafted.

In the preamble to the Copyright Amendment Bill, one of the objectives of the bill is “to provide for management of digital rights”. Even such a slight, simple yet vague reference lends itself to hope that this bill would deal sufficiently well with the developments in the digital era. To say that this piece of legislative drafting leaves much to be desired is an understatement (even after several iterations), and I, amongst many commentators, have called for the scrapping of the bill completely due to its comprehensive shortcomings, and for the drafters to simply start afresh, where they will seek guidance from experts in the field to advise them on how to deal with these complexities.

Interestingly, computer programs are among the few of the types of copyright works that can be authored and owned by a business entity, like a company, trust, etc., reads the Copyright Act.

While we need, unquestionably, to update our Copyright Act for the digital era and the 4th Industrial Revolution, which is on our doorstep, there are two key considerations at the core of the matter which are dealt with in our current Copyright Act (whilst we wait for adequate amendments):

1. Does copyright subsist in the AI software itself?

As long as the AI software meets the subsistence requirements in terms of the Copyright Act and its interpretations given in case law, copyright will attach to AI software. And, in South Africa, there is no need to register your copyright in AI software, as copyright subsists from the time it is created and exists in material form.

Key to this discussion is:

Whether the work is “original”? If it has not been copied from another source and sufficient effort, labour, skill and judgment has been inputted in the creation of the software, it will be considered original.
Whether the work exists in material form? The fact that the AI software is recorded on some medium or in some form would mean that this requirement has been met.
Whether the author is a “qualified person”? If the author is a South African citizen or resident, or has his domicile in South Africa; or is a citizen, resident or is domiciled in a Berne Convention country this requirement is met. Further, if a company or other business entity has an established business interest in South Africa or a Berne convention country, this requirement is also met. This requirement can also be met where the first publication takes place in South Africa or a Berne Convention country.

2. Does copyright subsist in the products created by AI software (whether internal to the AI itself or from external sources)?

Well, we need, first, to distinguish between “computer-assisted works” and “computer-generated works”, because AI is able to create other works in the form of literary, artistic, or musical output – or even another computer program.

A computer-assisted work is one created by a computer (in this case, AI), where the AI is the vehicle through which the work is created. The data is inputted into the AI system by an individual working with both the AI and the product; i.e. the works created emerge from AI, which is used as a tool to get the desired result i.e. the literary, musical, artistic or other type of work designated in the Copyright Act.

On the other hand, AI may create works on its own, as “computer-generated works”, and there are many examples of music or poetry created by algorithms themselves. But the person who either created the AI or its algorithms, or the person who paid for the creation of the works created by the AI, would be the legal owner of the works.

In my view, copyright does subsist in the products created by AI. It is clear that copyright works such as musical, literary, artistic and other copyright works can be authored by AI. Additionally, it is clear who the author and owner of a “computer-assisted work” would be; however, what needs more clarity, as AI becomes more and more ubiquitous in our daily work and personal lives, is who is the author and owner of a “computer-generated work”? At present, using previous precedents, even in relation to other types of copyright, it would appear (in my view) that such works would be owned by the person who paid for the creation of the copyright works.

My advice?

It is important for businesses today to implement a proactive and comprehensive strategy to protect their IP rights in AI. AI is here and, it should not be long before it impacts completely on our lives, both at home and in the workforce. So, the law needs to adequately deal with it in a flexible way, so as not to stifle creativity. This is why IP rights exist in the first place – although a balance must be struck between the opposing rights and obligations of the inventor/creator/author and the public interest. We hope that the Copyright Amendment Bill (albeit it in its nth revision) will, when enacted, implement such a flexible yet certain approach to these issues.

RM Tucker Attorneys can assist with all aspects of protecting your intellectual property rights in AI. We can assist with:

Drafting software licences
Drafting software development and/or support agreements
Drafting software sale-purchase agreements
Drafting SaaS and PaaS agreements
Drafting terms and conditions and privacy policies for your website or app
Registering your software and your business’s name and logo

We have the expertise and experience to assist you in the development of your business; because, without doubt, this development will require technological, and most probably, software-related input or improvements, in many spheres of how you operate. We can be your trusted advisor in taking your business to the next level.