Artificial intelligence has transformed the field of intellectual property and copyright, challenging traditional laws as the creations originated by them lack proper support under current legislation, since it is required that the inventor be a natural person. The growth of artificial intelligence and the expansion of tools that produce varied content such as multimedia, audio and artistic creations are increasingly present in people’s daily lives, showing how relevant it is to discuss if such creations should be protected, as well as designate who shall be the owner of the intellectual property rights involved.
The growing use of artificial intelligence in the creation of content such as artwork, videos, and even poetry or music, has generated significant debates about intellectual property and the ownership of these works under many regulations. Different countries have approached the issue in different ways, reflecting their unique perspectives on authorship and intellectual property rights in the context of AI.
An interesting example of the impact of artificial intelligence on intellectual property is the Rembrandt project, where Dutch researchers used AI to create a new painting in the style of Rembrandt van Rijn, one of the masters of European art. The intelligence analyzed more than 300 paintings by Rembrandt, learning his brushstroke patterns, use of light and composition, to generate a work that could easily be mistaken for an original. Beyond the ethical implications of mimicking a natural person’s work, this case raises critical questions about who should own the copyright to a work created by a machine – the programmer, the entity that funded the project, or the AI itself? This dilemma highlights the need to update intellectual property laws to address AI-generated creations.
Another intriguing case related to this matter concerns Stephen Thaler, who developed an AI algorithm known as the creativity machine called DABUS, capable of generating new works of art. Thaler tried to obtain copyright protection in the United States and in the UK, for an image generated by this AI, by arguing that it should be categorized as a “commissioned work” implying that he, as the owner of the creativity machine, would own the copyright, while authorship would be attributed to the AI. However, the American court did not agree with Thaler, as it was determined by Judge Howell and followed by rest of the court, that a machine cannot be considered an author under current copyright law, since the human authorship is a crucial part of copyright claim. UK’S Supreme Court decided in the same grounds. This raises complex questions about the degree of human involvement required to confer copyright on AI-generated works of art.
In Brazil, the prevailing understanding is that no artificial intelligence can be considered an author for intellectual property purposes, as our intellectual property law determines that only individuals can be authors, excluding entities, companies and even artificial intelligence. Also, the IX Brazilian Civil Law Journey has stated that artificial intelligence cannot be considered author for copyright matters, no matter how high level of autonomy it has.
The examples the robot artist that mimics Rembrandt, and Stephen Thaler with his Creativity Machine demonstrate how artificial intelligence is challenging traditional IP laws and creating new legal complexities. As technology advances, it is essential that IP laws evolve to accommodate these new realities.
The growing use of AI in the creative industry represents both an opportunity and a challenge. On the one hand, it can facilitate the generation of content on a large scale; on the other, it poses risks such as excessive automation and the loss of human uniqueness in artistic creation and even difficulty to determine when an AI was used.