As the world advances, technology births innovations that are geared towards making life easier, everyday. One of such innovations is Artificial Intelligence, popularly acronymised as AI.
AI is a concept of technology that enables machines or other types of computer mercenaries, perform tasks or exhibit functions and characteristics that commonly require human intelligence.
These characteristics include the ability to analyse data, act on processed data, predict human behaviour, read, speak, recognise and make independent decisions, and even provide solutions to complex and technical problems.
On account of its ability, AI is able to establish and create certain innovative work. This ability has however birthed with it, concerns related to ownership and status of proprietary interest, chief of which revolves around the intellectual property, copyright.
Copyright grants an owner of a copyrightable work, the exclusive right to use, reproduce and redistribute its work.
However, it is imperative to note that for a work to be afforded copyright protection, such work must have been made by a juristic person that is, a human being or a corporate entity.
This legal principle is applicable in various jurisdictions across the world, including Nigeria. Specifically, in Nigeria, section 2(1) of our Copyright Act provides that copyright protection can only be afforded to a work made by a “qualified person” (QP). The concept of QP is further defined to mean either:
a. an individual who is a citizen of, or is domiciled in Nigeria; or
b. a body corporate (a company, a business name, or an incorporated trustee) incorporated by or under the laws of Nigeria.
This means that, to be afforded copyright protection, the owner of the work must either be a human being who is a citizen of Nigeria or is domiciled in Nigeria or a body corporate registered or incorporated under Nigerian laws. The questions that beg for answers at this point are thus:
a. are works made or produced through AI, copyrightable under the Nigerian Copyright Act?
b. Who owns the copyright emanating from such work?
Based on the definition of AI, a product of AI cannot be afforded copyright protection. Copyright cannot be said to have enured in such work and as such, rights pertaining to copyright cannot be enforced in relation to that work (the product of an AI).
This further implies that where the product of an AI is used, alienated, transferred, or altered without authorisation, AI would not have locus standi to sue or enforce the copyright in the said work, as a machine does not have the right to sue or be sued.
It has been argued that since machines are made by men and AI is a function of computer programming, the owner of the machine or the programmer is actually the owner of the works produced and should thus be entitled to the copyright (emanating from the work of the AI).
Consequently, the machine owner will be entitled to sue or take steps to ensure the protection of its copyright.
Interestingly, under the Nigerian Copyright Act (section 1), computer programmes are classified as literary works (which is a type of work afforded protection under Section 1 of the Copyright Act).
This means that a programmer controlling or programming the AI can be deemed the creator of the work, and as long as such programmer is a Nigerian or is an entity registered in Nigeria as provided by Section 2 of the Copyright Act, the work will be copyrightable.
However, there appears to be a setback to this position as under Section 10 of the Copyright Act, only an entity involved in the process of creating a copyrightable work is entitled to copyright protection.
It is therefore arguable that where an AI is the sole creator of works emanating from it and a programmer or creator of the AI had nothing to do with the process involved in making the work, the copyright should enure in the AI.
The only instance where someone who is not involved in the creation of a copyrightable work can have ownership over that work is where there is an express transfer of the ownership to him or her (which should be in writing) by the owner of the work.
The question as to whether an AI can validly assign works it creates can certainly not be answered in the affirmative since the AI is incapable of owning property and lacks the legal capacity to enter into a contract.
Another basis for arguing that a programmer can be afforded protection is by reliance on Section 11(6) of the Act which recognises co-ownership of works. Section 11(6) defines a co-owner as a person with joint interest in the whole or part of the copyright or with interest in the various elements of a composite production, that is to say a production consisting of two or more works.
In this regard, it can be argued that where the AI is created by a programmer to achieve a special purpose, when such a purpose is achieved, copyright can pass to the programmer because he or she can be said to have an interest in the work of the AI.
However, a major drawback to this argument is the fact that if the AI is considered an actual owner of the work and the programmer is considered a joint owner, there has to be a document or an agreement governing their co-ownership which stipulates commercial terms such as the distribution of royalties.
As indicated above, AI is neither a human being or a registered corporation and as such, lacks the legal capacity to contract in the first place.
Thus, the fact that AI is not a human being remains a fundamental drawback to the ownership of the copyright emanating from its work.
So, despite the position of the law in Nigeria that computer programmes are copyrightable (as literary works), AI works are unable to enjoy copyright protection and AI is unable to claim proprietorship. The creators/programmers of an AI unfortunately, cannot validly claim ownership of such works.
The position of the law in the United States of America (US) is no different; in fact, the stance against AI ownership of copyright appears to be stricter.
Recently, the US Copyright Review Board confirmed that copyright does not subsist in a work created by AI in the United States. This confirmation was made in response to an appeal for a reconsideration for its initial refusal to grant an AI copyright protection.
The United Kingdom (UK) on the other hand, has adopted a more liberal approach. The UK’s Copyright, Design and Patent Act makes provision for computer-generated work.
It provides that the author of a computer-generated work is the person by whom the arrangements for the creation of the work were undertaken.
This means that the owner or creator of the AI is the one entitled to the copyright accruing from such AI. A similar provision is also made in the extant copyright laws applicable in some other countries, such as New Zealand.
Given its level of technological advancement, AI is indubitably here to stay. Countries like Nigeria and the United States must understand that the world is evolving, laws are dynamic and must be made, reviewed or re-enacted in line with extant trends.
For effective regulation and ease of commercialisation, recognition and provision for copyright ownership and protection for AI in the coming years, is likely to be inevitable. Irenen is in Olaniwun Ajayi LP’s Entertainment, Leisure and Media practice group