"In copyright, the requirement of human-centered originality will soon be challenged"

Leaders League: Developments in 5G and AI are beginning to constitute a revolution. In your opinion, what will be the main challenges of this revolution for the field of IP?

Vitor Palmela Fidalgo:

It will have a huge impact, not only in IP but all branches of law. The impact of artificial intelligence (AI) is not yet completely understood, though no one doubts that it will ultimately exercise an influence on each legal field.

We must not forget that law and technology are different in terms of their development. Technology evolves in a bewildering way and usually operates at the limits of regulation. In contrast, apart from being an historical and cultural product of humankind, the law typically works with known models, and therefore its evolution is slower and more orderly. In any case, it will be up to jurists to legally frame these new realities.

As far as IP is concerned, we are already seeing some of these impacts. Among the capabilities of AI is the possibility of creating new works or inventions. As AI advances, eventually little or no human input at all will be involved in creating these works. AI systems are not only assisting human beings but are already capable of generating literary or artistic works.

The Next Rembrandt portrait is a good example of this. The portrait consists of a painting generated by 3D printing technology using an algorithm that analyzed hundreds of paintings by Rembrandt in a process the lasted 18 months. It is based on nearly 170,000 fragments of the Dutch painter’s work stored in a specially designed database. The aim was to be able to produce a painting that came as close as possible to the actual paintings by Rembrandt. The question is whether this work should be protectable by copyright.

Law and technology develop differently

What is your opinion on copyright protection?
I think that due to the human-centered concept of originality in the European Union’s Copyright Law – which has been be confirmed by various ECJ decisions – AI-generated work cannot be protected by copyright. The requirement of originality in the European Union has never renounced the necessity of human effort in producing a work. If there is no human input at all, these works will have no direct protection and will remain in the public domain. Unless, of course, there is a legislative change that protects this type of work by establishing an ad hoc solution, as we have in the UK, for example, for computer-generated works. Nonetheless, we must not ignore the fact that, given the low degree of originality required, as technology evolves it is anticipated that the requirement of originality will again be challenged by efforts to prove that there is still human input in works created by AI. In fact, it is impossible to ignore all the contributions made by those who deal with AI. Is not The Next Rembrandt a result of choices made by human beings, namely the data gathering and selection that are input into the AI system? It certainly is! The question is whether this human contribution is sufficient to say that this is a human creation. I am curious to see the courts deal with this question.

Why do you say “direct” protection by copyright? Is there any other solution for this?

There is in fact “indirect” protection. AI-generated work can be protected by related rights, which are analogous to copyright and includes the protection of different expressive objects such as the performance of literary or artistic works, the production of phonograms (recordings of sounds) or broadcast transmissions. So as a sound recording, AI-generated works may be protected by the rights of the phonogram producer. Phonogram protection may include both copyright-protected works and works that have been protected but are now in the public domain, as well as works that have never been protected by copyright.

Since there is no requirement that the sounds must be an intellectual creation, it is perfectly possible that AI-generated works, even if they have never been protected, may be subject to recording and thus be protected. However, even if this protection is possible, we must not forget that it is distinct from that enjoyed by authorial works (for example, it has a shorter period of duration, and it applies only to a specific type of work).

5G and AI will have a huge impact not only in IP but all branches of law

Are you aware of any cases where these issues have arisen?

Actually, yes. It has happened in patents. On 25 November 2019, the European Patent Office (EPO) refused two patent applications in which an AI system (called “DABUS”) was designated as the inventor. The EPO held that the applications did not meet the conditions of the European Patent Convention (EPC) because of the requirement that the inventor be a human being.

According to the decision, the legislative history demonstrates that the legislators of the EPC were in agreement that the term “inventor” refers to a natural person only. The decision also said that AI systems currently have no rights because they have no legal personality comparable to natural or legal persons. I have no doubt that more such issues will be raised in the near future.