Introduction
Copyright refers to the legal right of the owner of an intellectual property. It gives the original creators of products and anyone authorized by them, the exclusive right to use and reproduce the work for a given amount of time. Works eligible for copyright include literary works, musical works, artistic works, cinematograph works, sound recording, and broadcasts.[1]
The Copyright Act Chapter C28 Laws of the Federal Republic of Nigeria 2004 (“Nigeria Copyright Act”) did not contemplate instances where works would be generated solely by computers or their more complex variant, Artificial Intelligence. In this digital age with rising digital inventions, this lacuna poses a lot of challenges to Nigeria and many other jurisdictions. It is therefore important to discuss this challenge by looking at what obtains globally.
Works Generated By A Computer/Artificial Intelligence
Artificial intelligence (“AI”) is the ability of a digital computer or a computer-controlled robot to perform tasks commonly associated with intelligent beings.[2] Computer-generated works, as defined by the 1988 Copyright, Patents & Design Act of the United Kingdom (“UK Copyright Act”) are works generated by computer in circumstances such that there is no human author of the work.[3]
Historically, the authorship and ownership of copyright of computer-generated works was not an issue because computer programme was only used as a device to create the works. For example, a novel/poem could be written with the aid of a computer programme (Microsoft word). Here, the computer proramme used is merely a tool in the same way that a pen is a tool when writing a letter.[4] As the pen cannot be said to be the author of the letter, neither can the computer programme.[5] Furthermore, sufficient effort must have been expended on making the work in order to give it an original character and copyright laws associate originality with human authors. Therefore, it is the individual who used the computer programme to generate the works that is considered the author and who would be granted copyright.
However, we are now witnessing an increase in creative works by computers and AI without human intervention. Computers are now writing on sports, financial news, and other news articles; and are also drawing, painting and composing music. Some even participate in competitions and defeat human world class champions.[6] In 2016, a portrait entitled The Next Rembrandt, generated by a computer that had analyzed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn, was unveiled.[7] A short novel written by a Japanese computer program in 2016 reached the second round of a national literary prize.[8] Also, the Google-owned artificial intelligence company Deep Mind has created software that can generate music by listening to recordings.[9]
Against this background, it is therefore important to know if these works can be protected by copyright. Copyright laws in most jurisdictions approach the challenge to the authorship of AI works by either refusing to grant copyright protection for such works, or granting the authorship of the works to the inventor of the computer programme/AI.
Where Copyright Protection over Computer Generated/AI works is not recognized
In this category, computers and AI are considered not to have the capacity to own property. Copyright protection over creative works is therefore usually refused.
The United States Copyright Office does not recognize non-human authors. The Compendium of U.S. Copyright Office Practices provides that “The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” … Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work…”[10]
In Australia, the Copyright Act 1968 only provides for original works that have been authored by a person. Copyright subsists in an original and unpublished creative work if the author is a “qualified person”.[11] The Court in Australia held in Coogi Australia Pty Ltd v. Hypersport International Pty Ltd & Ors[12] that computer generated output, being jumpers and stitch work, were not materials in which copyright subsisted as the company creating the jumpers utilised computer algorithms (not humans) to randomise the stitch work. Furthermore, in Acohs Pty Ltd v. Ucorp Pty Ltd[13], the Court held that a source code generated via a computer algorithm was not eligible for copyright protection because it had not been solely authored by a human.
Where Copyright Protection over Computer Generated/AI works is recognized
The UK Copyright Act provides that “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.”[14] The copyright protection granted shall last for 70 years from the end of the year of creation.[15]
A similar position is adopted in Ireland. The Irish Copyright and related Rights Act 2000, while explaining computer generated work, states “that the work is generated by computer in circumstances where the author of the work is not an individual”[16]. Author is recognized as the person by whom the arrangements necessary for the creation of the work are undertaken.[17]
In this category, while copyright protection for computer-generated works is recognized, human authorship is still considered important because human involvement is crucial in process of creating a computer-generated work. This may start form the preliminary instruction to direct the searching and processing of a computer program, or some concluding, serious decisions about how to proceed from the output generated.[18] It is considered that the crucial element of direction and judgment remains the key in justifying authorship.[19] The authorship of such copyright will be granted to the programmer.
However, this has also led to another challenge of deciding the author and the person entitled to the copyright between the creator of the computer programme and the user of the programme to generate the works. In Nova Productions Ltd v Mazooma Games Ltd,[20] it was held that the author of the frames shown on a screen when playing a computer game was the person who had devised the rules and logic used to create them; the player of the game was not the author, having not contributed any artistic skill or labour.
Although the approach of the United Kingdom and Ireland seem the most efficient, it is important to note however that AI will get better in creating works without any form of human arrangement and decisions. It is therefore envisaged that to continue to use human authorship as a perquisite for granting human authorship may pose some challenges.[21] Who would be entitled to the copyright protection in such instance? It would also discourage creativity and further development in the AI industry. It is therefore important, that the existing copyright regime begins to recognize the authorship of AI, where the invention is completely computer- generated, without stifling human innovation.
Computer Generated Works Under The Nigeria Copyright Act
The Nigeria Copyright Act does not provide for computer generated works like the UK Copyright Act or the Irish Copyright and Related Rights Act. The Nigerian Copyright Act defines an author as follows[22]:
“author” in the case of cinematograph film or sound recording means the person by whom the arrangements for making of the film or sound recording were made, unless the parties to the making of the film or sound recording, provide otherwise by contract within themselves;
“author” in the case of literary, artistic or musical works, means the creator of the work;
“author” in the case of photographic work, means the person who took the photograph;
“author” in the case of broadcast transmitted from within any country, means the person by whom the arrangements for the making or the transmission from within that country were undertaken.
However, looking at the provisions above, the Nigeria copyright Act does not also explicitly exclude computer authorship, like the United States.
It is to be noted that under the Nigeria Copyright Act, for copyright protection to be granted over creative works, sufficient effort must have been expended on making the work to give it an original character;[23] the work must have been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.[24] It seems therefore that once the creative work is original and sufficient efforts had been expended on it, copyright protection may be granted over it regardless of the nature of authorship. Furthermore, copyright shall be conferred on every work eligible for copyright if the author (s) at the time of creation is a citizen of, or is domiciled in Nigeria; or a body corporate incorporated by or under the laws of Nigeria.[25]
From the foregoing, it seems that when copyright protection is sought over creative works generated by an AI, the Nigerian copyright system may lean towards granting the copyright protection to the human author. However, it is still very important to address this lacuna to avoid the obvious confusion and ambiguity and also, to compete with rapid developments in the AI industry.
Conclusion
Copyright protection over AI works is very important. Computers are being used to generate unprecedented creative works and if they are denied copyright protection because of their non-human authorship, they could be freely used and reused by anyone without any form of compensation. This would of course spell doom for the companies that invested huge amount of money in developing the AI that generated the works. Furthermore, this would discourage investments in this sector since the investors would not be confident in the profitability of the works to be created. The copyright regime therefore needs to be expressly expanded to encompass such works.
Other jurisdictions are already considering the expansion of their copyright regime to accommodate computer-generated works.[26] It is therefore advised that Nigeria begin to follow the emerging trends and precedents laid down in United Kingdom and Ireland either by judicial decisions or statutory amendment, to encourage development of AI, computer-generated works and investment in the technology sector. This would of course greatly improve the country’s economy.
