We interact with artificial intelligence (AI) on a daily basis. It is evident that the growth of AI has been so vast, making the capabilities of AI systems much more impressive and refined.

The overall goal of AI has been to create technology that allows computers and machines to work intelligently. As we currently understand it, AI refers to the simulation of human intelligence in machines that are programmed to think like humans and mimic their actions. Given the growth we have seen in AI, it was only a matter of time before these (AI) systems began autonomously “inventing” and “creating” works of their own.

According to the World Intellectual Property Organization (WIPO), intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. IP is protected in law through the awarding of intellectual property rights (IPRs) such as patents, trademarks, and copyright. These rights enable their respective owners to earn recognition and/or financial benefit from what they invent or create.

In 2016, a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt, an artwork generated by a computer that analyzed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn. The Next Rembrandt piece of art was autonomously generated by AI. Copyright protection is awarded to creative works that are original, reduced to a fixed form, and to works that would be considered eligible for copyright protection. What does this mean?

  1. Originality: Refers to the combination of skill and labour in creating the work. The creator or author of a given work must have expended sufficient effort and skill in making the work. Most jurisdictions require that originality be that of a human author.
  2. Affixation: The work should be presented in or attached to a tangible format. This form can be of any nature so long as the work can then be perceived, reproduced, or communicated through a device. Such devices can be paper, cardboard, computer, disc, etc.
  3. Eligibility: To be eligible, works must fall under any of the classifications of works provided under the law as works eligible for Copyright. These works include literary works, musical works, artistic works, dramatic works, audio-visual works, sound recordings, and broadcasts.

Looking at the thresholds that need to be met for copyright protection to accrue, The Next Rembrandt is indeed a work eligible for copyright protection (artistic work), and the piece of art was indeed reduced into a tangible form (it was 3-D printed). However, would the element of the art being autonomously generated by AI satisfy the originality threshold?

Looking at another example, in 2021 South Africa granted an AI system, that produced an invention, patent rights. The application listed an AI system, called DABUS, as the inventor, and the machine’s owner, Stephen Thaler, as the patent owner. The United States Patent and Trademark Office (USPTO) and The European Patent Office (EPO) both rejected the application on the grounds that their patent laws recognise and require that an inventor be a natural person. It is worth noting, though, that South Africa does not offer formal examination and instead only requires applicants to merely complete a filing for their invention for patent rights to be awarded.

At the core, the issue of whether AI-generated works can receive IPRs, and whether AI can own, exploit, and enforce legal rights, is the question of whether AI has or can have the legal capacity to create, own, exploit and enforce the rights awarded through IP protection. As it stands, several jurisdictions have resisted giving AI any such legal capacity. Even so, looking at how AI technology continues to grow and considering the example of programmes such as ChatGPT, should this change?