The chaos of image law of artificial intelligence

All the images you see in this article were created with Dall-e, an artificial intelligence platform. All of the images in this article are currently floating around the internet out of copyright and, even if you wanted to, you couldn’t derive any profit from their creation. The reason? It’s easy. They are not considered works (in this case created by a human), so a country’s intellectual property law does not support their protection. In other words: The machines have this right and are therefore not yet subject to a fee.

The people who helped create it are ultimately mere pawns in a process that still has much to enact. The simple fact of having written a sentence in software and waiting for the result to come out does not make me the owner of anything. And while there are several countries already accepting artificial intelligence patents, they are not the keyword in a much broader debate.

Artificial intelligence and its millions of uses and possibilities have opened a new door in the legal field. One that moves something that has been established for several centuries. When it comes to images and their authors, things are complicated. How does one compare the product created by an AI system drinking from a visual database configured by algorithms to the great artists? Since The first intellectual property laws were born at the beginning of the French Revolution, As early as 1789 – in response to the preservation of enlightened thought and man’s emerging role as value creators – the need to reconsider the idea had seldom been seen.

The launch of Dall-e, Dall-e 2, Midjourney, and a long list of AI imaging software variations have brought this debate to the fore. One in which the role between creator and owner is diluted by data and actors represented by the internet and technology.

Now, and with no solution on the table — beyond regulating artificial intelligence expected from the European Union sometime in 2023 — new terrain is opening up that many are already considering. And that’s it When it comes to money, things always take on a lot more importance.

My image created with artificial intelligence is not a work and never will be

Image created with Dall-e

What is a work? This question might be a first year philosophy question, but in this case it directly relates to how the intellectual property rights of an image are understood. And especially those created with artificial intelligence.

Beyond the beauty and quality of it, Any work created by a human being is considered a work. Or, failing that, there is a human being’s free and creative choice over a platform or technological system. If you meet these requirements, you will be covered by all intellectual property laws.

In short, Dall-e or Midjouney are neural networks that learn from images indefinitely. They lose the originality of the creator (human in this case) and only respond to very specific requests. Whether they turn out better or worse depends in large part on the ingenuity of the request. But nothing else.

In any case, this is the current state of affairs and that she has to face a regulation that at least creates clarity from now on. “We are talking about an essential element for the development of our economy (Artificial Intelligence), so at least we will have more or less defined initial rules with which to manage it,” he explains. Albert Augustinoy, specialist in intellectual property in Cuatrecasas. Leandro Núñez, partner at Audens and specialized in technology and intellectual property, explains that “the most likely and sensible thing is that this will change in the short or medium term, since it is not fair that those who develop these tools do not have protection. “

The background: a monkey photographer and a designer in the USA

Macaque selfie

Many will remember this macaca taken by a wildlife photographer’s mistake selfie. It’s probably the most famous selfie in the term’s short history. The monkey, logically playing with her latest discovery, managed to take a picture with a more than remarkable result. And what started as an online anecdote – the moment the photographer published the photo and the story behind it spread like wildfire – ended up in a legal problem with her own entry on Wikipedia.

With the clear goal of profiting from everything that has arisen from it selfiethe photographer wanted to collect the image rights of the document. The reality, and this has been proven by a court, is that the picture was taken by a monkey. The fact of not being human and the zero intervention of the photographer in this case left a clear mark: it was not a copyrighted work and therefore its rights were technically free.

“Because it’s not the product of the human intellect, it has no protection,” explains Núñez, who uses the monkey example to understand a situation that is now affecting images through artificial intelligence. A very different question, she points out, is whether a photographer programs a camera to take a picture under certain circumstances; in this case he would be the owner of the result.

You don’t have to go that far either. Already in 2018, a year-long court case Programmer Stephen Thaler attempted to register a work created by an AI system. Although Thaler wanted it owned by the intruding algorithm, the Intellectual Property Office’s response was the same as for the monkey influencer: there was no human hand, so there was nothing to record.

Database system for managing artificial intelligence

Logically, the fact that there is currently no regulation covering everything created with artificial intelligence does not mean that this is the right way to go. There is already a lot of debate going on about what needs to happen in a short period of time. And, as Núñez points out, the one exception to current intellectual property might be the key: databases.

Image created with artificial intelligence from dall-e
Image created with Dall-e

In the 1980s and with the birth of the first digital databases, the question of how to manage their ownership arose. They were not works, since they were fed from information provided by third parties in the form of lists, It wasn’t really human either., since a digital hand was involved. A spin-off from what was born in the French Revolution – and which no one thought would go as far – emerged the sui generis right of databases, protecting the effort involved in creating and producing them. With only 10 years of protection (compared to the vital plus 70 years of original protection) this is a way for manufacturers to protect themselves. In this group are all those apps or digital systems that were born at that time. Microsoft would not give up the rights to World for World.

It is precisely this division that opens up a good path for some experts. That they largely agree that artificial intelligence property rights should go this way. Manufacturers protect, but not much. In any case, the challenge is to unify all of this, as the Berne Convention is doing to make copyright global.

Regardless, you will likely never own the rights

Image created with dall-e
Image created with Dall-e

Considering that my images, produced with artificial intelligence, do not count as works and, as the experts point out, it remains to be seen which paths will ultimately influence the scales of regulation, another question about air arises Who would be the ultimate owner of the images? Probably I – who made the request to a platform for a medium – will never be. It’s called a platform – in this case Dall-e – or the database that feeds their neural network.

And the question is very clear. My efforts as a champion of a particular image have been minimal. Again, it depends heavily on my ability to order something and get the result I want. But it is the database and the algorithms that learn from it that generate the computational overhead.

“That’s the logic the creator of the platform needs more protection the AI ​​has trained that because there is more effort than the one who sets the sentence,” explains Núñez, or fails because of those who feed the system. And he adds the example of commissioned work, which may be the closest thing to this to date: “The author owns the rights because he created the work, no matter how much I told him to do”.

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