a. Faux creativity
Creativity is the basis of copyright. Can a machine ever be as creative as a Rembrandt or a Picasso?
For Harold Cohen - painter and professor at the University of California - the answer
is no. Creativity involves a sense of self and, until machines develop that, “they will never be creative in the same sense that humans are.”
I currently work at a startup
that uses machine learning to extract data from contracts and, although data extraction isn’t archetypically creative, I’ve learnt the same thing: machines just can’t perform like humans can.
They’re not torturted artists who feel a burning desire to create, or trained lawyers who have the ability to interpret clauses. They’re entirely dependent on human instruction and leadership. The upshot? Machine-generated creations lack a crucial originality.
In the You Can’t Know My Mind project, the software’s ‘mood’ was a mock mood influenced by newspaper data. Sony CSL’s music-making software remixes melodies from an already existing database of songs. Bas Korsten, who had the idea for the Rembrandt project, admitted the project wasn’t intended to create a new Rembrandt.
Without orginiality, these projects are just illusions of creativity. I’m not saying this to take the shine off these machines and make them seem less exciting - they’re incredibly powerful, thrilling examples of AI. But without the ability to replicate a deep emotional and psychological sense of self, it’s hard to posit - financial incentives aside - that artificial creativity has any true creativity worthy of copyright protection.
b. You actually might be a robot.
Say, one day, machines develop a sense of self and are able to be ‘truly’ creative. Cool. Slightly terrifying, but cool. Can we give them copyright protection now?
Not quite. It’s not as simple as banging a gavel and lovingly opening up the world of copyright law to robots everywhere. As Casey and Lemley say in this excellent paper
, to regulate technologies, we first need to know what they are.
And here we come to a problem: sorting the bots from the nots is surprisingly difficult.
Laws have done a terrible job of defining robots so far. The ever-improving ability of machines to act intelligently is causing them to blur the boundaries of what, exactly, it means to be human.
As Casey and Lemley say, this convergence isn’t just about the steady march of machines towards more humanlike capabiltiies. Biohacking tech, like Elon Musk’s ‘Neuralink’ or MITs ‘mind-reading’ headsets, smudge this line too. As we slide into the future, “our machines will only continue to become more human, and we humans will continue to become more machine.”
So, if we ever erased our current copyright laws and replaced them with robot-friendly alternatives, what would those laws look like? How would they even begin to define robots, let alone robot-generated work? Questions like this are thorny, prickly speedbumps on the road to copyrighting artificial creativity.
c. The myth of the sole inventor
Then there’s the question of who, exactly, the copyright should be attributed to. When it comes to AI, creation is a social, not an individual, phenomenon. There are code authors, multiple developers, end-users - all of whom have some role to play in generating machine-produced works of art.
When I first started researching artifical creativity, my gut instinct was to bestow copyright protection exclusively upon developers. They created the machine, so they should own the work the machine spits out. Right?
Wrong. The best way to explain this, per Professor Guadamuz, is to look at Microsot Word:
Microsoft developed the Word computer program but clearly does not own every piece of work produced using that software. The copyright lies with the user, i.e. the author who used the program to create his or her work.
So should copyright be bestowed upon the end-user? Wrong again. When it comes to AI, sometimes a user’s contribution to the creative process is as menial as pushing a button.
The point is: there’s no one answer. Who is ‘most’ involved in the process of creating machine-generated work should get the benefit of copyright protection, but uniformly attributing to this to a sole person is impossible.
d. You want robot art?
Put everything I’ve said aside. Let’s forget about what it means to be ‘creative’ or how to define robots, and bring it back to basics. Other than giving developers financial incentives, is there really a reason to robotically revolutionize copyright law?
says it better than I ever could:
Do people really want to listen to Nirvana-esque algorithm-produced music or Google’s Deep-mind AI piano prowess, get immersed in the writings of a literary robot, or hang a computer-generated Rembrandt, a nightmarish Van Gogh-reminiscent Starry Night or a blurry portrait of a fictional aristocrat in their living room, not to mention to have to pay for any of that?
If not, maybe we’re barking up the wrong tree. If inventivising developers and stimulating innovation is the real concern here, we can do that without bending the entire framework of copyright law. We could use other avenues - like unfair competition and patent law - to achieve the same effect.
Leaving artificial creativity beyond of the scope of copyright law doesn’t mean machines don’t have a part to play in the creative process. Maybe we just have to reframe our perspective on what their role is: that of a creative collaborator, rather than a creator itself.