JTIP Blog

The Development of Artificial Intelligence

Today, Artificial Intelligence (AI) has developed into deep learning. Deep learning is the ability of an AI system not only to learn but also to independently make decisions without human intervention. With the development of deep learning, services that automatically compose music or draw a picture are appearing. For example, Google’s experimental “Auto Draw” tool uses deep learning algorithms to suggest complete drawings as users roughly sketch out their ideas. With the development of these types of AI services, there are copyright issues relating to both the inputs and outputs of such systems.

These services are still in the early stages, but as these services develop, they have the potential to produce results of commercial value. Therefore, their development may produce copyright issues. This post will (i) explain some copyright issues that may arise in relation to such deep learning services in two main categories and (ii) introduce the current situations in the U.S., South Korea, and Japan.

Deep Learning and Copyright

There are two major copyright issues related to services using deep learning. The first issue concerns the use of third-party data that is necessary for the learning process of a deep learning system. In general, copyright law requires permission from the rights holders for all such data. However, in many cases, it is practically impossible to obtain consent for all of the data that deep learning services use. 

The second issue relates to the rights of AI-generated works. If contracts or legal documents created by AI have commercial value, then who owns the copyright of those works?  In such situations, there is the possibility of a dispute between the AI service provider and the user using that service over the rights to any profit generated.

The current state of the law in the U.S., South Korea and Japan

A. United States

The first issue, permissive use, is whether using training data constitute unauthorized reproduction, thereby giving rise to copyright infringement liability. Circuit courts are divided on this issue.^[i] However, even if infringement occurs during machine learning, training AI with copyrighted works would likely be excused by the ‘fair use’ doctrine.^[ii] For example, in Authors Guild v. Google, Inc.^[iii], Google had scanned digital copies of books and established a publicly available search function. The plaintiffs alleged that this constituted infringement of copyrights. The Second Circuit held that Google’s works were non-infringing fair uses because the purpose of the copying was highly transformative, the public display of text was limited, and the revelations did not provide a significant market substitute for the protected aspects of the originals. The court also said that a profit motivation in and of itself did not justify denial of fair use.

On the ownership issue, it is not clear whether the U.S. Copyright Act itself explicitly requires the author of a creative work to be human. However, the U.S. Copyright Office, by publishing “The Compendium II of Copyright Practices,” went beyond the statutory text in requiring that an author be human in order for the work to be eligible for copyright protection.^[iv] And in Naruto v. Slater^[v], Naruto, a crested macaque monkey, took several self-portrait photographs with photographer’s unattended camera. The Ninth Circuit dismissed the copyright claims brought by Naruto’s representative PETA.

B. South Korea

Currently, regarding permissive use, there are no regulations relating to AI learning data in the Copyright Act of South Korea. Therefore, when copyright-protected materials are used as AI learning data under the current law, that use may conceivably be judged as copyright infringement. However, Article 35-3(1) of South Korean law states that “… where a person does not unreasonably prejudice an author’s legitimate interest without conflicting with the normal exploitation of works, he/she may use such works.” In other words, the fair use doctrine is also possible under South Korean law, and there is a possibility that this provision will apply to AI learning. 

Thus, with no legal provisions in place and with no relevant precedent cases, this legal uncertainty acts as an obstacle to the use of data in AI learning in South Korea. However, the South Korean Ministry of Culture, Sports and Tourism is working on a revision of the Copyright Act to include a clause that does not require consent of the copyright holder to the extent that the material is used for AI learning and big data analyses. The revised Act was proposed in Korean National Assembly on January 15th 2021, and the procedure is currently underway.

Regarding the ownership issue, the Copyright Act of South Korea defines the term “work” to mean “a creative production that expresses human thoughts and emotions” in Article 2(1), and “author” to mean “a person who creates a ‘work’” in Article 2(2). As such, unless the current law is amended, only humans can be the authors of creative endeavors. Therefore, AI-generated works are not protected by the current law.

However, South Korea may also see progress on this front. The Presidential Council on Intellectual Property formed the AI-Intellectual Property Special Expert Committee in June of 2020 to establish a pan-government AI policy. This committee will discuss a variety of policy issues, such as 1) whether AI should be recognized as an author, 2) whether the works created by AI should be protected to the same level as those by humans, and 3) who owns the work created by AI.

C. Japan

Japan has already solved the problem of permissive use through legislation. Japan revised related regulations through the revision of the Copyright Act on May 25, 2018. According to Article 30-4 of the new Copyright Act, it is permissible to exploit a work as necessary if it is used in data analysis. As a result, there are no restrictions on the subject, purpose, and method of data analysis, and there is no obligation to compensate the copyright holder. It is now also permitted to provide learning data in cooperation with multiple corporations.

Regarding ownership, under Japan’s Copyright Act Article 2(1), a copyright-protected work is defined as a creation expressing “human thoughts and emotions.” Thus, it appears difficult for AI to become the author of its own creations under the current law. To address this, the “Intellectual Property Strategy Headquarters” of the Prime Minister’s Office has suggested specific policies for AI copyright policy in its “Intellectual Property Promotion Plan 2016.” Specifically, this plan says that in order to promote AI creation, incentives to those involved in AI creation must be guaranteed. Thus, it is necessary to recognize the copyright of AI creations as well. However, the policy also stated that granting IP protection to all AI-created works may be subject to excessive protection. Thus, it is necessary to limit the content and scope of recognition of rights in consideration of the need for such protection.

Conclusions and Final Thoughts

Regarding the permissive use issue, unlike the U.S. and Japan, South Korea still has legal uncertainty. In South Korea, more specific legal provisions are required for using copyright-protected works as learning data for AI as a fair use. If the Copyright Act is amended, this problem can be resolved. Thus, it is necessary to watch for future progress.

In terms of the ownership issue, each of these countries currently has a problem in that the author of copyright must be human. Therefore, it is necessary to amend the copyright law for attribution of the rights of AI-generated works. However, a more detailed and careful discussion on who precisely will hold that copyright, is still needed.

Seung Hoon Park is a third-year law student at Northwestern Pritzker School of Law.

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^[i] Jessica L. Gillotte, COPYRIGHT INFRINGEMENT IN AI-GENERATED ARTWORKS, 53 U.C. Davis L. Rev. 2655, 2674-76 (2020).

^[ii] Id. at 2659.

^[iii] Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).

^[iv] Shlomit Yanisky-Ravid, Generating Rembrandt: Artificial Intelligence, Copyright, and Accountability in the 3A Era — The Human-Like Authors Are Already Here — A New Model, 2017 MICH. ST. L. REV. 659, 718-19 (2017).

^[v] Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).