Copyrightability of Artworks Produced by Creative Robots, Driven by Artificial Intelligence Systems and the Concept of Originality: The Formality - Objective Model
56 Pages Posted: 1 Apr 2017 Last revised: 11 May 2017
Date Written: March 30, 2017
In our new era of advanced technology, creative robots, driven by sophisticated artificial intelligence systems and hence, acting autonomously, are capable of producing innovative artistic and other works — ones which, had they been created by humans, would be eligible for copyright protection. This article addresses the question of copyrightability of artworks created by creative robots. We argue that creative robots as autonomous entities are capable of holding copyrights in art works they produce. However, the greatest hurdle to this notion, from the copyright law point of view, is the interpretation of the most important concept in copyright protection: the requirement of originality. Therefore, in this article we are revisiting the concept of originality. This article argues that confronting the challenges of the new 3A era (advanced, automated and autonomy), calls for a reassessment of the meaning of originality, which is undefined in the field of copyright protection both in international law, under the Berne Convention, and in domestic U.S. copyright law. The lack of a clear definition means that the existing concept of originality is inadequate for addressing new, possibly “copyrightable” works produced by creative robots. Moreover, the lack of a clear definition leads to interpretations of “originality” that are vague, immeasurable, and disharmonized, does already cause confusion in the industry as well as the public. This uncertainty surrounding an important legal concept has triggered a search for a solution that could eliminate or, at the very least, reduce future conflicts. This article suggests that a more formal, objective approach — as opposed to the existing, subjective (or mixed) approach — to the concept of originality should be adopted. The proposed objective approach might be applicable to works created by creative robots as well as artworks generated by digital tools and is further warranted by the intangible, vague nature of art. We suggest that a consistent legal determination of the question “what is original?” can successfully be achieved only by a formal, objective, descriptive approach.
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