Art and Artificial Intelligence: Legal Challenges and Intellectual Property.

Alejandra Garza – Partner at De Hoyos Koloffon

Artificial Intelligence and the Creation of Artistic Works

Until a few decades ago, intellectual creativity belonged exclusively to human beings. However, in light of the fourth industrial revolution, artificial intelligence (AI) has taken on an important role in daily life, from conversational bots and smart assistants to automated recommendation engines. But what is AI? Well, AI refers to systems or machines that mimic human intelligence to perform tasks and that have the capacity to iteratively improve based on the information they collect.*

While it is true that AI simplifies and provides solutions for our daily tasks at home, at work, and in interpersonal communications, to name a few, the incorporation of AI has also raised legal questions regarding the ownership of artistic works generated or created by an AI. That is, who should—legally—be recognized as the author of the work?

To elaborate slightly on the issue of ownership of rights derived from the creation of a work, the Mexican Federal Copyright Law (LFDA), in its Article 12, provides a clear definition of "author": the natural person who has created a literary or artistic work. If we break down this provision, we can conclude that only a natural person can be considered the author of a work.

In accordance with the Mexican Federal Civil Code, Article 22 defines the legal capacity of natural persons, which is acquired at birth and lost at death, adding that from the moment an individual is conceived, they are considered "born" for legal purposes.

This provision is of utmost importance since, if we refer back to the definition put forth by Doctor Leonel Pereznieto Castro in his work Introduction to the Study of Law, we can clarify that an individual "is the human being as a particular essence that by its existence constitutes an independent unit that can be easily differentiated from other individuals." In this line of reasoning, only a human being can be considered the author of a literary or artistic work.

Now, if we make a basic comparison with various foreign laws, Mexican legislation aligns with the criteria and legal provisions that regulate the subjects of rights and obligations concerning the ownership of copyright derived from the creation of an artistic work by AI.

First, we will mention the Berne Convention for the Protection of Literary and Artistic Works, an international treaty on copyright protection. While it does not explicitly state that only a natural person can be a subject of copyright, this allusion can be interpreted from the provisions of Articles 6bis(2) and 7, which stipulate that the duration of copyright is based on the author's death. Therefore, as a human being is subject to death, it is presumed that "author" means a natural person.

In the United States of America (U.S.), under Copyright Law, the "author" is any creator of the original expression of a work. This person is the copyright holder unless there is an agreement to the contrary, through which the author transfers ownership of the rights to another person or legal entity. As noted, U.S. law alludes to the involvement of the author, from which, again, it is presumed that "author" is a natural person.

As for Australia, thanks to a recent ruling by the Australian Federal Court, an AI has been recognized as the sole inventor on a patent application. Initially, the patent application was filed by Stephen Thaler as the owner and DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) as the inventor. DABUS is the AI created by Stephen Thaler. At first instance, DABUS was denied status as an inventor under the Australian Patents Act, which requires the inventor to be human. However, the Federal Court reversed this decision, arguing, among other reasons, that the owner of the patent application was the creator of DABUS. While it is true that this ruling pertains to an invention (a matter of Industrial Property), it would not be surprising if this ruling sets a precedent for an authorship standard in Copyright matters.

In Mexico, as in Spain, the criterion has been adopted to state that an AI is not a legal "subject," and therefore is not a holder of rights and obligations, making it impossible to grant it copyright. The Federal Copyright Law in Mexico states in Article 20 that the exercise of moral rights of a work belongs to the creator of said work and their heirs. Objectively, if we base our analysis solely on this article, an AI cannot designate an inheritance to a third party, as this requires the testator to die to bequeath assets, rights, and obligations. Logically, an AI is not subject to death, as it is not a human or living being.

Meanwhile, the British Copyright, Designs and Patents Act, in its Section 178, includes the concept of a computer-generated work, stipulating that it is one "where there is no human author of the work." This stipulation could be the beginning of legal regulation for works created by computers. Likewise, Section 9(3) of said law resolves the question of ownership of rights for a computer-generated work, stating: "In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”**

A tangible example is Sophia, a robot created in the image and likeness of Audrey Hepburn—a Hollywood actress and model—with a "brain" of high-level artificial intelligence. It processes unstructured language, meaning Sophia has the capacity to learn responses, thus having the capacity to learn autonomously.

Additionally, in 2017, Saudi Arabia granted "her" Saudi citizenship, making her the first robot to have a nationality. She is, in herself, a humanoid robot—created by David Hanson—with silicone skin, capable of 62 facial expressions, and runs on software based on algorithms that allow her to recognize and remember faces.

In this context, it could be assumed that Sophia, being a Saudi citizen, is subject to rights and obligations. But what religion does she profess? Must she comply with traditions, rules, and fatwas***? How will she leave the country, given that she has no male relatives? These questions, and more, could be the key to determining if the citizenship granted to an AI is truly subject to exceptions from the rights and obligations of any natural person from that country.

While it is true that there are countless stances on the ownership of copyright derived from the generation of a work by AI, and that it is still an evolving legal issue, in my particular point of view—and aligning with various global criteria put forth by specialists in the field—the product or creation of a work with the assistance of AI is a mere consequence of the time, intellect, and resources (to mention a few) of one or more natural persons who invested and contributed the human factor to the creation or programming of the artificial intelligence system.

In this line of reasoning, a work created with the assistance of an AI is nothing more than the vehicle for a creation previously programmed by a human being.