From an intellectual property perspective, the factors determining whether Artificial Intelligence programs are protected by copyright are the same as for ordinary computer programs. In contrast, the question of intelligent systems to act as authors is particularly interesting. In this case, the key issue is to the identity of the copyright owner: Is it the software, software copyright holders, users of the software, both or no one.
The Anglo-American and civil laws differ in this respect. In the U.S. and the UK, a work may be copyrighted, even if it is machine generated. There is a specific rule in the UK concerning computer-generated works and in the United States this conclusion can be achieved through interpretation. In Finland and elsewhere in Europe, it is assumed that copyrighted works should be made by man: The result of a mechanical operation is not entitled to copyright protection. Works of this kind shall not be regarded as independent and original as required by copyright law. Copyright to works created by an intelligent system does not belong to anyone. The civil law tradition emphasizes the importance of moral rights, which are connected to the author’s personality. In contrast, the Anglo-American copyright tradition is based on the economic rights and moral rights are largely ignored. The European Commission has drawn attention to the special provision on computer-generated works in the UK. The Commission is concerned that the provision does not comply with the software Directive due to the broad scope of copyright protection granted thereunder.
The copyright system is meant to encourage the creation of works. It is true that machines do not need incentives to create. Machine-generated output, however, is affected by a number of people who, for example, program the machine. These people obviously need incentives, just as the author of a book or a composer. Copyright protection for machine-generated works would encourage the development of useful technology. In this sense, copyright protection should be available, also for machine-generated content, and should not be categorically prohibited, even if work performed by machines is to some extent mechanical. For example, short telegraph news are not necessarily protected irrespective of whether they are written by a man or machine. This kind of assessment of the creativity prerequisite is necessary. The assessment should not, however, be exclusively linked to a requirement that the direct author should be a man.
In the preparatory works and legal literature in the United States, in the UK legislation and in Finnish preparatory works , authorship is allocated to the user of the software. The software programmer is ignored in this respect although the contribution by the programmer should be recognized. User actions may be extremely simple. This is the case when the user presses a button to compose. In intermediate works the output has been produced by the computer user and the computer programmer and/or a person producing the database. Therefore, both the user and the programmer should be considered co-authors in such cases. The most practical option to achieve this result would be to agree on a contract. However, it is obviously not possible to validly agree on the fulfillment of threshold for copyrightability.
This is an excerpt of an article published in Viestintäoikeuden vuosikirja 2010, Forum Iuris, Helsinki 2011, VII + 200 pages. Unfortunately, the book is only available in Finnish:
The paper on intelligent machines and legal liability has been published in the Nordic Journal of Commercial Law: http://www.njcl.utu.fi/