The project "The Next Rembrandt," a painting created through a computer, should be protected in the same way as a painting done by a human? The lawyer Tatiana Marinho speaks in this article of the challenges that the evolution of technology brings.
By Tatiana Marinho (*)
"The important thing is to define whether" author "can only be a physical / legal person, or if a computer / machine can be considered an" author "or possible rights holder." The constant change and development of technologies, defined as the theory and development responsible for the creation of computer systems capable of performing tasks that usually require human intelligence such as visual perception, speaking ability, decision making, translation between different languages), today play a major challenge to certain concepts and to its application, in particular as regards Intellectual Property Rights.
The questions that arise here are more than the answers we can give. If, on the one hand, it is true that under Directive 2009/24 / EC on the legal protection of computer programs, it is possible that they may be protected by copyright, and that it is the creator or creators of the program, On the other hand, is it not possible in the present context to ask whether artificial intelligence itself could be the holder of rights over its own creations? All these issues are raised in light of the current context in which we live, where bee bees can pollinate plantations autonomously and in which citizenship is granted to Sophia (Hanson Robotics robot).
It seems to us essential to individualize questions, to define concepts and to realize that society is constantly changing and that the law has to follow these developments. One case that aroused particular interest in this respect was the project "The Next Rembrandt," a computer-generated painting exactly like an original by the famous Dutch painter Rembrandt Harmenszoon van Rijn, 347 years after his death.
This artificial masterpiece was achieved through the 3D scan of more than 300 works by the painter and the creation of an algorithm that retained the main characteristics of his paintings. The challenge we pose is whether the program itself that autonomously created this artificial painting should / could be the holder of the Intellectual Property Rights (be they Copyrights, Design, Patents …) about it, that is, in cases where the author of the invention is the machine itself. This is indeed a complex issue and we can not yet answer with certainty, since the legislation itself does not allow it. A general analysis of European legislation and jurisprudence leads us to believe that we can evolve in this direction. For example, with regard to the definition of "author", it is common ground that he is the owner of the rights to the work that he himself created.
The important point is then to define whether "author" can only be a legal / physical person, or if a computer / machine can be considered "author" or possible rights holder. members of the IP5, a forum of the world's five largest intellectual property institutes (US Patent and Trademark Office, Japan Patent Office, Korean Intellectual Property Office, China). This meeting discussed major issues and challenges in this area, specifically about the relationship between patent rights and artificial intelligence. However, the truth is that we can not fail to mention that there is at present no delimitation of the civil and / or criminal responsibility of artificial intelligence for the crimes committed in its creative process. As long as this matter is not defined, the issue of the attribution of Intellectual Property Rights to the artificial intelligence itself can not, strictly speaking, proceed.
(*) lawyer of the Law Firm Nuno Cerejeira Namora, Pedro Marinho Falcão & Associados