"Reflections on AI (Artificial Intelligence)"(Ryoichi Mimura)
◆ Introduction
Recently, the intellectual property sector has been at the center of controversy over AI (artificial intelligence), with extremely detailed discussions on every aspect of the issue. While I have some personal thoughts on AI, I lack sufficient knowledge to write a full-fledged academic paper. Therefore, I would like to take this opportunity to jot down some of my everyday musings as a kind of personal memorandum.
◆ AI and Intellectual Property
Regarding AI, it is anticipated that disputes will first become evident in the field of copyright. In addition to copyright, there are common issues concerning other creative intellectual property rights, such as patents and design rights. However, for rights like patents and design rights that require examination and registration by the relevant authorities for their establishment, disputes will first revolve around the authority's decision on whether the rights should be granted. In contrast, since copyright does not require examination or registration for its establishment, disputes related to AI will be brought directly to court.
◆ A Hypothetical Case in Copyright
As a hypothetical case, let's consider a situation where there is a publicly known painting, "x-painting," created by X. Y, who possesses an AI device (or software) with the ability to search and collect information from the web, uses this AI device to create a digital painting, "y-painting," in response to Z's order. Z then prints and sells multiple copies of the "y-painting." The dispute arises when X recognizes the "y-painting" as being similar to the "x-painting" and accuses Y and Z of infringing on reproduction rights (or adaptation rights) and distribution rights.
◆ Determining Copyright Infringement
In this case, if the "y-painting" is similar to the "x-painting," shares creative characteristics with it, and is evaluated as a derivative work in terms of similarity, can Y and Z avoid liability for copyright infringement on the grounds that the "y-painting" was created by an AI device? From a practical standpoint, I believe Y and Z cannot avoid liability.
Starting with Y, even if the "y-painting" was created solely by the AI device without any involvement of Y's mental activity, Y would still be responsible for copyright infringement. The act of copyright infringement does not need to be creative; a factual act is sufficient. This point is affirmed by the notion that mechanically scanning or copying books using a device (commonly referred to as "self-scanning") constitutes copyright infringement.
Furthermore, Y might argue that they had no way of knowing which works the AI device referenced when creating the "y-painting" and that they were unaware that the "y-painting" was based on any pre-existing work (denial of reliance on the "x-painting"). However, this argument does not exempt Y from copyright infringement. There is ongoing debate about the issue of reliance when using an AI device for creating works. Still, in the above hypothetical, the AI device Y used had a function to search and collect information from the web, meaning it could potentially create works based on web-uploaded works. Since the "y-painting" is similar to the "x-painting," it can be inferred that the "y-painting" was created based on the "x-painting." Whether or not the infringer was aware of the reliance is irrelevant; it suffices if they were in a position to know that the work was created based on some pre-existing work. There is no need for them to recognize which specific work it was. This holds true even in cases unrelated to AI. For example, suppose a primary creator (A, a master) delegates part of the creation process to a secondary creator (B, an apprentice). In that case, if A allowed B to use existing works as a reference, A would be liable for copyright infringement along with B, even if A was unaware of the specific work B relied on during the creation process. In the above hypothetical, Y, being aware of the AI device's capabilities, cannot escape responsibility for copyright infringement.
As for Z, who printed and sold multiple copies of the "y-painting," since the "y-painting" is an adaptation of the "x-painting" and was reproduced and sold, Z is also liable for copyright infringement, just like Y. Z's position is akin to that of a publisher who publishes a novel that infringes copyright, and, like a publisher, Z should be held accountable for copyright infringement.
◆ Copyright Eligibility of AI-Produced Works
The issue of whether AI-produced works are eligible for copyright protection is also a topic of intense debate. If a work is created using an AI device, but a human is recognized as having merely used the AI as a supplementary tool—meaning the creative aspects of the work are entirely the result of human mental activity—the human would be considered the author, and the copyright would belong to that person. However, if all creative aspects of the work are recognized as being produced by AI, there would be no entity to whom the copyright would belong. The reasoning for this could be either (a) a work must be the product of human creative activity to be considered a copyrightable work, so if no human mental activity is involved, it is not considered a work; or (b) even if a work created by AI can be considered a copyrightable work, there is no entity to whom the rights could originally belong, so copyright does not arise. I prefer the latter view (b). A tricky situation arises when a work created with AI's involvement contains both human-created elements and AI-created elements, with the AI-created part being more substantial. In such cases, the human involved would ordinarily acquire a share of the copyright as a joint author, but since the AI cannot be a rights holder, the human would become the sole copyright holder of the entire work. This means that even if a person contributed only a very small part of the creation, they would become the sole rights holder of the entire work. However, this is similar to what happens when one of the co-authors of a work relinquishes their share, leaving the remaining author as the sole rights holder (Japanese Civil Code Article 255). In cases involving AI, the situation is initially the same—the other co-author, the AI, is not present from the start, resulting in the human being the sole rights holder. For employee-created works (Article 15 of the Japanese Copyright Act), the explanation that “the person engaged in the duties of a corporation, etc., must be a natural person” seems easier to understand and aligns more closely with the former view (a).
◆ The Rights in Derivative Works Created by AI
Returning to the hypothetical case, how should the rights in the "y-painting" be considered? As mentioned earlier, the "y-painting" was created based on the "x-painting" using an AI device. Suppose all the creative aspects added to the "y-painting" were produced by the AI device without any involvement from Y. In that case, only X would have rights over the "y-painting." The question then becomes whether X's rights extend only to the "x-painting" or also to the entire "y-painting," including the parts newly added by the AI device. In my view, even if a work is created by an AI device, it can still be considered a copyrightable work. Therefore, under Article 28 of the Japanese Copyright Act, X would hold copyright over the entire "y-painting." Even if a derivative work is created without the original rights holder's permission, the rights of the original rights holder extend to the entire derivative work under Article 28. For the sake of consistency, it seems appropriate to interpret that X's rights in the hypothetical case would extend to the entire "y-painting" as well. (While it might be possible to interpret Article 28 of the Japanese Copyright Act as not requiring the derivative work to be a copyrightable work, I consider such an interpretation to be strained.)
◆ Considerations Regarding Patents and Design Rights
As mentioned earlier, AI raises common issues in the realm of creative intellectual property, including patents and design rights.
Regarding patented inventions, similar to copyright, even if technology created solely using an AI device falls within the technical scope of an existing patented invention, it would still constitute patent infringement. However, if the technology was created solely using an AI device, there is no entity to whom the rights could originally belong, meaning no patent rights could be granted. From this perspective, even technology created solely using an AI device could be considered an "invention" that results in the loss of novelty and inventive step (Patent Law Articles 29(1) and (2)). However, another perspective suggests that the "invention" referred to in Article 29 of the Patent Law does not require human mental creative activity (for example, substances existing in nature can serve as grounds for loss of novelty or inventive step in material patents, and diagrams in design gazettes can do so in structural inventions). From this viewpoint, it is natural that technology created solely using an AI device would serve as a reason for the loss of novelty or inventive step.
Whether a patent can be granted for technology created with contributions from both AI and human mental activity will first be determined by the Patent Office. However, in my view, the considerations mentioned regarding copyright apply similarly. The provisions of Article 35(3) of the Japanese Patent Law concerning employee inventions would likely be interpreted in line with what I mentioned earlier regarding employee-created works.
The relationship between design rights and designs created with AI involvement would likely follow the same considerations as those mentioned for patents.
◆ Conclusion
This article is a collection of my thoughts, written down as a personal memorandum without thorough academic examination, and is far from something that could be cited in future papers. However, because these ideas were formed without being constrained by existing discussions, they might offer some new insights to readers. If so, it would be an unexpected pleasure.
(Translated by Chaehyun Kim.)