Artificial Creativity: Emergent Works and the Void in Current Copyright Doctrine

Abstract

Artificial intelligence (AI) is on everyone’s lips and is in everyday use. Yet discussion on what this means for our present and future — particularly in terms of the revolutions that AI might bring to the legal sphere — has only just begun. One topic that warrants, but has yet to receive, in-depth attention is the relevance of AI for innovative and creative activity and production. Legal analyses thus far have focused on humans and their role as innovators, authors, or creators. Left in the dark, however, is the question of how to regulate AI when it “innovates” or “creates” autonomously — without human direction or intervention. Examples of such artificial creativity abound. Robots and computers have recently come to paint works of art, compose symphonies, and write news articles, poetry, and novels. All of these “works” would doubtlessly be protected by copyright if created by a human being. But we are hopelessly naïve when confronted with whether and how copyright law and neighboring areas of intellectual property protection should respond to the rise of AI. Indeed, current law is devoid of rules and doctrines for artificial creativity — with the result that AI-generated works are left unprotected. The consequences of such neglect are yet to be discussed. This article provides an overview of the status quo of artificial creativity — i.e., creative production by AI — and its regulation (or, rather, non-regulation) in different jurisdictions, as well as an analysis of relevant doctrinal debate and economic foundations. It then offers suggestions for a reconceptualization of current doctrine, outlining a road map and overarching framework for legislative action and practical adjudication.

Keywords: Artificial Intelligence, AI, Robot, Algorithm, Creativity, Copyright, Comparative Law, Economic Analysis, Neighboring Rights, Unfair Competition, Misappropriation

JEL Classification: Z11, O31, O34, K11, K19, K22