As we witness the mass digitalization of various sectors, including the arts, artificial intelligence and the uncertainties it entails become increasingly important to address. The current copyright legal framework almost always provides for a human criterion in most jurisdictions. This raises questions regarding ownership and copyright of works of art created solely by Artificial Intelligence. In such situations, who owns the intellectual property right?
The current legal framework surrounding intellectual property ownership has almost always provided for human intervention, as those Intellectual Property (IP) rights were presumed to belong to the human creating the work. As we witness the growing digitalization of various sectors, we see however that the arts are not immune to this phenomenon. In fact, we are witnessing an increasing number of artworks generated by Artificial Intelligence (AI) come to light as this field expands, and technology evolves exponentially. We see examples such as Ai-Da the AI Robot Artist, musical composing intelligences such as Amper, Jukedeck and Flow Machines, Benjamin the scriptwriter robot, or even works such as “The Next Rembrandt” being increasingly present in today’s market and demonstrating the various areas in which AI can create artificially generated works. This begs the question: to whom does the intellectual property belong in such cases?
When works of art are created by artificial intelligence, algorithms or robots, the ownership of those property rights is not so clear. Do these rights belong to the AI robot or algorithm itself, or to the human who programmed such AI for example? This is the question we will attempt to answer, by focusing on Swiss law and looking at various jurisdictions. It is important to first define the term artificial intelligence. Although no established definition exists, various scholars have attempted to provide a definition of artificial intelligence, including the Swiss Group, who defines it as “an entity (or collective set of cooperative entities), able to receive inputs from the environment, interpret and learn from such inputs, e.g., in view of achieving a particular goal or objective”.
CRITERION OF PHYSICAL PERSON
According to article 2 paragraph 1 of the Swiss Federal Act on Copyright and Related Rights of 9 October 1992 (Copyright Act, CopA), in order to benefit from copyright protection, works must be “literary and artistic intellectual creations”, thus implying there needs to be a human origin of the work. In fact, pursuant to article 6 CopA, “[t]he author is the natural person who has created the work”. Therefore, a work has to come from a human being, as “[o]nly natural persons can create works eligible for copyright protection in Switzerland”. The prerequisite of a human contribution to benefit from copyright protection is explained by the fact that the author’s personality is strongly present in the resulting work and as such, the author has ownership of the fruits of his work.
Similarly, pursuant to article 3 paragraph 1 letter a of the Berne Convention, only authors who are nationals of countries of the Union will benefit from copyright protection on the European level. Consequently, not only are legal persons excluded from this European protection, but so are AIs. This clearly emphasizes the need for a human element to benefit from copyright protection in EU law. In addition, US copyright law also “expressly excludes non-human authorship”. Therefore, works generated by AI will only benefit from copyright protection if there has been sufficient human involvement in the creation process.
There needs to be a human creative input provided for and reflected in the final work. In fact, “a “creative causal link” must be perceptible between the creative work of said natural person(s) and the resulting work”. The human intervention must go beyond the simple design and programming of the AI entity, and its extent will be assessed on a case-by-case basis. The Swiss Group has identified two criteria in assessing the extent of human intervention: “(i) the extent to which the definition (the design, programming, etc.) of the AI code by the AI authors predetermines what the new work will be; [and] (ii) the possible further involvement of the AI authors in the creative process leading to the new work, beyond the mere definition of the AI code”.
Currently, there is no existing rule under Swiss law which qualifies the author of the AI code or program as the author of the resulting work, as their creative decisions are usually not reflected in said resulting work. In fact, “AI authors will, in practice, rarely qualify as authors of the new work”. Precisely, AI’s value lies in its ability to be self-sufficient and not require any human intervention thanks to unsupervised learning and machine learning. AI authors will need to make a creative decision reflected in the new work to qualify as authors of said work. For example, if an AI author specifically designs their code to make the AI paint an image of a woman in a red dress, this could potentially be considered as a sufficient creative causal link between the AI author and the resulting work, but this will have to be evaluated on a case-by-case basis as previously mentioned. As such, simply selecting the data for the AI will not be sufficient, unless it has a visible creative impact on the resulting work.
CRITERION OF ORIGINALITY
Pursuant to article 2 paragraph 1 CopA, works require an individual character in order to benefit from copyright protection. Such individual character is “usually regarded as an attribute of an intellectual creation of a human being”. Works should reflect the author’s personal imprint and their personality. In fact, in the case Infopaq International A/S v Danske Dagbaldes Forening, the Court of Justice of the EU (CJEU) stated that works must reflect “the author’s own intellectual creation” in order to benefit from copyright protection. We should be able to identify the author’s subjective and creative choices in their work, which establish their individual character and originality. Therefore, a work must have an individual character stemming from a human intervention in order to be eligible for copyright protection. This element would not be met either by a work generated solely by AI with no human intervention. Therefore “a “fully artificial work” would not be regarded as having individual character”.
However, in situations where AI is simply used as a creative tool by the author of the work, copyright protection would apply as there would be a clear identifiable creative causal link. In the music industry, AI is very often used as a creation-assisting tool. In that regard, the author’s originality and creative expression would still be identifiable in the resulting work and thus could benefit from copyright protection. However, as we previously mentioned, if the author simply launches the AI tool without putting in any human creative input that is reflected in the final resulting work, copyright protection will not be applicable.
French scholar Alexandra Bensamoun questions the criterion of originality as she points out that we should evaluate the originality of the work within the work itself and not within the author of the work. She rightfully points out that anonymous works (Art. 31 CopA) and orphan works (Art. 22b CopA) are still protected by copyright law despite not having an identifiable author. Consequently, we could consider protecting AI generated works through copyright by looking at the originality criterion within the works rather than searching for an author’s originality.
1. Short-term solution: Ownership by AI authors
A short-term solution could be to give ownership of the IP rights related to the artificially generated work directly to the AI author as they are the ones programming the AI system. This would mean stepping away from the concept of a creative causal link and focusing strictly on who is the owner of the AI system. The AI author fixes the framework for the AI’s artistic creation, and as such should be able to benefit from the fruits of its labor, as established by the property law principle of accession by production. In fact, pursuant to article 9 paragraph 3 of the UK Copyright, Designs and Patents Act 1988 (CDPA), the author of a computer-generated work “shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”. Similarly, AI-generated works could be seen as works for hire and thus the rights would belong to the AI owner who has commissioned the work.
These options could however lead to potential issues of virtual monopolies in AI-created works. Further, ownership by AI authors still represents an issue regarding creations by the AI after the AI author’s death. We could however simply consider that those copyrights would pass on to the heirs of the AI author along with the ownership of the AI itself.
2. Long-term solution: Electronic legal personality
Under the current Swiss legal system, an AI system or machine cannot be qualified as “a juridical entity capable of holding Copyright or Related Rights”, only natural and legal persons can hold copyrights. This brings us to consider the potential for the creation of an electronic legal personality. AI systems could potentially be given a legal personality allowing them to benefit from copyrights and related rights. Such electronic personality could be structured in a similar manner as corporate personality for commercial companies. This would allow AI systems to have legal and financial rights, as well as legal responsibilities. In such a structure, AI would have to register themselves in a public register similarly to the Swiss commercial and companies register, thus obtaining electronic legal personality at the time of registration. In fact, the European Parliament has suggested such a registration system for advanced robots in a February 2017 resolution. This system would be Union-wide and “could be managed by a designated EU Agency for Robotics and Artificial Intelligence”. Such a registration system would allow for traceability of advanced robots and similar artificial intelligences. Scholars have been quite critical of this idea, however it is still an option which could be explored.
As we witness a rapid evolution and expansion of artificial intelligence and new technologies, it is of the utmost importance that the legal frameworks surrounding those fields evolve with them. Whilst the current Swiss copyright legal framework is flexible enough to address current technological developments, it is uncertain that it will be able to keep up with the incoming technological revolutions. The many uncertainties regarding the topic of copyright, ownership, and artificial intelligence suggest that a specific legal framework should be developed to address these issues, or at least an addition to the already existing copyright law should be put in place. Intellectual property law needs to evolve simultaneously to these new technologies and provide for the appropriate and necessary IP rights. Copyrights and related rights must be easily and clearly identifiable to ensure legal certainty of the copyright legal framework.
 Ai-Da, [https://www.ai-darobot.com] (15.10.2021).
 Amper by Shutterstock, [https://www.ampermusic.com] (15.10.2021).
 Jukedeck by TechCrunch [https://techcrunch.com/startup-battlefield/company/jukedeck/] (15.10.2021).
 Flow Machines by Sony Computer Science Laboratories, Inc., [https://www.flow-machines.com] (20.10.2021).
 Therefore films, Sunspring, the first film ever written entirely by an artificial intelligence, [https://www.thereforefilms.com/films-by-benjamin-the-ai.html] (15.10.2021); Benjamin, [https://benjamin-ai.tumblr.com] (15.10.2021).
 The Next Rembrandt by ING, [https://www.nextrembrandt.com] (15.10.2021). ; guzman Andres, p.14.
 Ihalainen Jani, p. 724.
 Ragot Sébastien et al., p. 573.
 Bensamoun Alexandra, p. 104 ; Ragot Sébastien et al., p. 574.
 Ragot Sébastien et al., p. 574.
 Ihalainen Jani, p. 726. ; U.S. Code Title 17 § 102 and § 201. ; U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § 101 (3d ed. 2021). ; See Naruto v Slater, case no. 15-cv-04324-WHO (N.D. Calif. 2016).
 Ragot Sébastien et al., p. 574.
 Ibid., p. 575.
 Ragot Sébastien et al., p. 575.
 Ibid., p. 576.
 Bensamoun Alexandra, p. 105. ; See also Football Dataco Ltd and Others v Yahoo! UK Ltd and Others, Case 6-604/10, ECLI:EU:C:2012:115, 38.
 Infopaq International A/S v Danske Dagblades Forening, Case C-5/08,
 Ragot Sébastien et al., p. 576.
 Bensamoun Alexandra, p. 105.
 Marr Bernard, p.1.
 Bensamoun Alexandra, p. 105 ; See Express Newspapers Plc v Liverpool Daily Post & Echo Plc,  1 W.L.R. 1089.
 Alexandre Filipe Maia, p. 24.
 Bensamoun Alexandra, p. 106.
 See Nova Productions Ltd v Mazooma Games Ltd,  E.M.L.R. 14.
 Bridy Annemarie, p. 26.
 Ihalainen Jani, p. 725.
 Ragot Sébastien et al., p. 576.
 Bensamoun Alexandra, p. 105.
 Confédération Suisse, Index central des raisons de commerce, [https://www.zefix.ch/fr/search/entity/welcome] (15.10.2021).
 European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics, (2015/2103 (INL)).
 Ibid., Annex to the resolution: Recommendations as to the content of the proposal requested.
 Bensamoun Alexandra, p. 105.
Laws, Resolutions & Compendiums
Compendium of U.S. Copyright Office Practices (Third Edition, January 2021).
Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code.
European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics, (2015/2103 (INL)), Annex to the resolution: Recommendations as to the content of the proposal requested.
Swiss Federal Act on Copyright and Related Rights of 9 October 1992 (Copyright Act, CopA).
United Kingdom’s Copyright, Designs and Patents Act 1988 (CDPA).
ALEXANDRE Filipe Maia, “The Legal Status of Artificially Intelligent Robots: Personhood, Taxation and Control”, (LL.M. thesis, Tilburg University) 2017.
BENSAMOUN Alexandra, « Ceci est… une œuvre d’art ! La question des créations générées par une intelligence artificielle » in L’Observatoire : La Revue des Politiques Culturelles – Le droit d’auteur sous toutes ses facettes, N°55 2020/1, (Observatoire des politiques culturelles) 2020, pp. 104-106.
RAGOT Sébastien et al., “Copyright in artificially generated works”, in sic! 2019, (Helbing Lichtenhaln Verlag) 2019, pp. 573-579.
Express Newspapers Plc v Liverpool Daily Post & Echo Plc,  1 W.L.R. 1089.
Football Dataco Ltd and Others v Yahoo! UK Ltd and Others, Case 6-604/10, ECLI:EU:C:2012:115, 38.
Infopaq International A/S v Danske Dagblades Forening, Case C-5/08, ECLI:EU:C:2009:465.
Naruto v Slater, case no. 15-cv-04324-WHO (N.D. Calif. 2016).
Nova Productions Ltd v Mazooma Games Ltd,  E.M.L.R. 14.
Journals and Magazines
BRIDY Annemarie, “Coding Creativity: Copyright and the Artificially Intelligent Author”, Stanford Technology Law Review, 5 (18 July 2011), 1-28.
GUZMAN Andres, “Artificial intelligence and copyright” in WIPO Magazine, Geneva Switzerland, WIPO Publication No. 121 (E), October 2017, p. 14.
IHALAINEN Jani, “Computer creativity: artificial intelligence and copyright” in Journal of Intellectual Property Law & Practice, 2018 (Vol. 13, No.9), pp. 724-728.
MARR Bernard, “How Artificial Intelligence (AI) Is Helping Musicians Unlock Their Creativity”, in Forbes Magazine, 14May 2021, <https://www.forbes.com/sites/bernardmarr/2021/05/14/how-artificial-intelligence-ai-is-helping-musicians-unlock-their-creativity/?sh=7a4d18fa7004> accessed 20 October 2021.
Artificial Intelligences & Websites
Ai-Da, [https://www.ai-darobot.com] (15.10.2021).
Amper by Shutterstock, [https://www.ampermusic.com] (15.10.2021).
Benjamin, [https://benjamin-ai.tumblr.com] (15.10.2021).
Confédération Suisse, Index central des raisons de commerce, [https://www.zefix.ch/fr/search/entity/welcome] (15.10.2021).
Flow Machines by Sony Computer Science Laboratories, Inc., [https://www.flow-machines.com] (20.10.2021).
Jukedeck by TechCrunch [https://techcrunch.com/startup-battlefield/company/jukedeck/] (15.10.2021).
The Next Rembrandt by ING, [https://www.nextrembrandt.com] (15.10.2021).
Therefore films, Sunspring, the first film ever written entirely by an artificial intelligence, [https://www.thereforefilms.com/films-by-benjamin-the-ai.html] (15.10.2021).
Photo: https://www.pexels.com/photo/person-reaching-out-to-a-robot-8386434/ (15.10.2021).