Copyright and AI – the Korean perspective | Denton

One of the most significant results of the so-called “fourth industrial revolution” is the development of highly sophisticated technologies for artificial intelligence (“AI”). The scale, scope and complexity of tasks that can be performed by AI are seen as endless. In fact, many human activities are now carried out by or with the help of AI. One of these activities is the creation of artistic works, including music, painting, literature and others. Traditionally, only human beings could be considered to have created such works, particularly in a legal sense, including under copyright. But now, as AI can contribute significantly to the process of creating such works, often far more than humans themselves, the question arises as to whether copyrights can be granted for works generated by the AI ​​and, if so, who is entitled to receive the copyright. The purpose of this article is to discuss this issue, especially from the perspective of Korean law. But since much of this discussion focuses on copyright issues in general regarding AI, it may apply to other jurisdictions as well.

Under Korean law, a copyrighted work is defined as “a creative production that expresses human thoughts and emotions”. In other words, to be protected under Korean copyright law, a work must meet three different requirements. First, a work must be “creative”, meaning that it is original and not an imitation of someone else’s work. Second, human thoughts and emotions must be “expressed” through a medium. An idea itself does not constitute a copyrightable work. Finally, a work must reflect “human thoughts and emotions”.

Controversy over whether AI-generated works are copyrightable may arise, particularly over whether AI-generated works actually reflect “human thoughts and emotions”. The AI ​​is inherently devoid of human thoughts and emotions, although it can act as if it does. In the United States, which has a copyright regime similar to Korea’s, there was a somewhat analogous case where the copyright status of selfies taken by a monkey came under dispute. ‘a disagreement. The US court ruled that such work cannot be considered copyrighted. It is also a common view within the Korean legal community that a work is not copyrightable if it is not created by humans. If not protected by copyright, AI-generated works would fall into the public domain.

However, unlike a work created by a monkey, works created by AI require further analysis. Unlike monkeys, the AI ​​bases its creation on a large database of works created by humans, using machine learning or “deep learning” technology. Also, some degree of human intervention is unavoidable in the process of creating AI, as it is humans who control and manipulate the operation of AI. Therefore, human thoughts and emotions can be considered embedded in AI-generated works, making them eligible for copyright. From the current definition of a copyrighted work under Korean law, it is difficult to draw a definitive conclusion on how courts would treat AI-generated works with respect to copyright.

This issue, however, was resolved in China when a company named Tencent filed a lawsuit in 2020 alleging copyright infringement over items made by its AI “Dreamwriter”, which is smart writing technology that creates articles based on data and algorithms. According to a report, the Chinese court recognized a copyright for these articles written by Dreamwriter and ruled in favor of Tencent. The court did not specifically address the issue of whether copyrighted works can only be created by humans, but did consider the fact that the items at issue were created under the control and oversight of Tencent by its core creative team, editorial team, product team, and technical development team. , and that the creativity requirement is deemed satisfied because the articles reflected stock market information, data selection, analysis and judgment. The fact that Tencent led the creation of the articles appears to have heavily influenced the court’s decision.

Another question to be resolved would be who owns the copyright for AI-generated works. Under Korean law, an author of a copyrighted work is defined as “a person who creates a work”, and a “person” in Korea includes not only a natural person, but also a person moral or an organization. AI does not fall under the definition of a “person”. But arguably it’s the AI ​​itself that should be entitled to a copyright, especially when humans haven’t directly contributed to the creative process of the work, except by pressing certain buttons to allow the AI ​​to work. However, the concept that AI itself is entitled to exercise “rights” or be held responsible for actions taken by an AI program is not yet established. AI should not be treated the same as legal persons because, unlike AI, legal persons are essentially a group of natural persons.

Some argue that AI developers should be entitled to a copyright for AI-generated works. The underlying assumption is that AI-generated works are just a by-product of AI development. Rewarding AI developers as such would greatly encourage active investment in AI development and could lead to the creation of more advanced and superior works for the enjoyment of the public. Such a result is consistent with the very purpose and spirit of copyright law. However, this vision is not without limits. AI developers may have developed the original technology but not the work itself. Also, there may be other contributors such as those who provide additional data which is used by the AI ​​program for the creation of particular works. Too much compensation may be given to AI developers in this case, compared to other contributors.

Others argue that AI users themselves should be entitled to copyright for AI-generated works. They assume that AI is just a creative tool or instrument activated and controlled by their users. This view is relatively consistent with the operation of Korea’s current copyright legal system. Under current law, a copyright can be granted even when a work has been created using computer technology, for example. But if a work was primarily, if not entirely, created by AI, it might not be unfair to reward AI users who contributed little to the substance of the work. Such concern would be raised, especially as AI technology becomes more sophisticated and AI users become less involved in the creative process.

The issue of ownership of AI-generated works remains highly contentious, and no viewpoint presented in this article can easily provide a solution that is both feasible and equitable. AI technology is constantly evolving and the capabilities of AI to create copyrightable works are improving accordingly. But the laws often lag behind the rapidly changing technology and due to the lack of clear guidelines offered by laws and regulations regarding the subject, more disputes are expected to arise in the coming days.

On December 21, 2020, in Korea, a legislative proposal to amend the Korean Copyright Law was made with the aim of solving this problem. It was sent to the Korean legislature on February 24, 2021, and the review process is ongoing. The proposal adds the new definition of an “author of a work created using an AI service”, which is determined based on the level of contribution to the creation. By stipulating that an AI developer who created an algorithm or a human artist who provided data for AI training can also own copyright, the proposal seeks to strike a fair balance for protect contributors. The proposal also states that a copyright for work created by AI lasts for 5 years after public disclosure, and for the registration process, its author must specify that the work was created by AI. It is difficult to predict whether this proposal will be adopted. But if it is enacted, creative activities using AI will be significantly boosted.

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