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Copyright Issues Affecting AI: Who Owns AI Generated Content?

The question of who owns the rights to works of art created by AI will go before the courts, as individual artists and corporations challenge the right of AI service providers to use their works without permission. Artist Eva Toorent is one of the founder members of the European Guild for Artificial Intelligence Regulation (EGAIR). She believes that AI companies should have to obtain artists' opt-in consent before using their work to train algorithms that can create other works.

She recently told the BBC, “If I’m the owner, I should decide what happens to my art.”

Accusations of breach of copyright have also been made by Getty Images, which alleges that 12 million of its proprietary photographs were used by Stability AI, without its permission, to train its Stable Diffusion image generation tool. It’s hard to deny the crux of their argument, which is that current IP and creative rights legal frameworks designed to protect artists from having their work used without permission or compensation are simply inadequate for the AI era.

As things stand, an artist’s work can simply be used repeatedly as a generative AI tool pumps out any number of cloned or derivative artworks. ChatGPT, for example, can write “in the style of” many human authors if instructed to do so, including myself. Toorent, for example, says she realized the scale of the problem when she visited a gallery displaying AI artwork and could identify works based on her own style. From a financial point of view, it seems clear from an ethical perspective that when AI companies stand to make enormous profits from this technology, artists whose talent contributed to their success deserve their cut. OpenAI, for example, attracted an investment of $10 billion from Microsoft based on its potential to generate revenue in the future.

There are several arguments that AI companies could put forward to get around their responsibility to artists. One might be that training an AI system on human-created art is no different from a human artist taking inspiration from other human artists and going on to make art that reflects that influence. But I would say that this doesn't quite hold up a human artist taking inspiration from another human will unless they are an outright plagiarist who adds their human qualities to develop something that exhibits their creativity. A computer algorithm can't do that it might mash it together with influences from other human artists, but it will never create anything truly new or original.

Or it could be argued that generative AI and the huge potential for driving efficiency and growth that it promises simply would not be possible without a huge amount of training data. And that obtaining permission for everything they use simply isn’t practical. There are some examples, however, of AI companies attempting to do just that. Adobe has exclusively trained its Firefly generative AI on images it holds the rights to. It even offers to indemnify customers who use its tools against future claims against them.

Another argument might be that using an artist’s work to train an AI algorithm doesn’t necessarily cause any harm or loss to that artist or devalue the original work. However, this argument will become harder to stand up if artists are losing out on work to AIs!

AI companies might try to claim that compensating everyone whose work is used might be too difficult due to the number of artists involved and the scale of the training datasets. It's possible that technology could provide a solution here, though, with AI and distributed ledger systems like blockchain potentially being used to create automated payment systems in the future.

I believe that generative AI has the potential to be transformative in many positive ways. AI can simplify our day-to-day lives by reducing the time we spend on repetitive tasks. AI enables us to express creativity without being held back by technological barriers.

The positive impact this could have on society would be offset if it means creative people have to become accustomed to others taking their work and profiting. Particularly it can be used in ways that have moral or ethical objections to. Musicians, for example, frequently deny permission for their music to be used at political rallies. As things stand, nothing would stop a politician from using AI to create music "in the style of" any particular band and using it as they see fit.

Upcoming legislation and court battles may go some way toward establishing a framework that will allow us to govern and regulate these matters more satisfactorily. Certainly, any legislated change will favor the artists, inherently disadvantaged by the current status quo. But of course, money talks, and we can expect AI providers such as global tech giants Google, Microsoft, and Meta to strongly oppose any changes inhibiting their ability to innovate.

All that’s certain right now is that as we explore this new intersection of art and technology, we are in uncharted territory. Finding answers to some of the fundamental ethical problems around AI and its place in society would require balancing the needs of everyone involved without sacrificing artistic innovation or technological advancement. This will probably be advantageous for all of us in the long run.

What to expect?

The landscape of audio content, from audiobooks to video games, podcasts, TV commercials, movies, customer support interactions, drive-thru, music, and even retail store PA announcements, is poised to change dramatically. The progress of AI voices means that you could soon be typing in a script or a topic, selecting a voice type (perhaps a funny British grandpa) and language, and receiving a custom-made audio file crafted just for you. The voices may sound a bit robotic now, but they’ll improve. If you're involved in voice-based professions such as acting or sales, it's time to take steps to secure your position, protect your IP, establish and grow your brand, expand your professional network, determine the level of authenticity and ownership you want to have, and prepare for increased competition. Explore platforms like ElevenLabs, Resemble AI, and Meta that are building products in this space. Experiment internal-only with a brand mascot voice development. To stay on top of the latest developments, set up weekly Google Alerts for “voice AI”.

But what about fraud?

The rise of voice AI will likely lead to an increase in voice spoofing; continue to protect yourself, your community, and your company. You may get a fake frantic call from your “son” asking you to wire money or a scary call from your “boss” asking you to log in to a new site. To combat this, implement multi-factor authentication and create a unique verbal password or passphrase among friends or family that you never type or share. It sounds silly, but take the time to add an extra layer to security now.

Considerations

i. Copyright

In Kenya, Copyright law is governed by the Copyright Act, Revised 2022 (2001). AI programs can create literary and musical creations. The creator of a copyright-protected work is deemed the copyright owner, according to the usual norm. However, there are some exceptions analogous to patent ownership. Consider any copyrighted work created while working for someone else is owned by the employer or the person for whom the work was created. Could barring AI-generated work from copyright protection be viewed as a tool for stimulating and favoring human innovation over machine creativity? Should AI-generated creative literary and artistic works be given copyright, or should a human? What happens when an AI application infringes IP rights, and what amounts to infringement?

The US District Court in Stephen Thaler vs. the Registrar of Copyrights reaffirmed the longstanding principle that human authorship is a requisite for copyright protection.

The present legal standards for infringement of copyright are solely applicable to humans. A number of questions, therefore arise;

1. Is it an infringement of copyright to utilize data from copyright works for machine learning without permission? If not, should we change our laws to allow such data to train AI applications?

2. How does AI development impact innovation, and are IP laws hindering innovation?

3. How will improper use of data in copyright works be recognized and enforced for machine learning?

4. Should deepfakes be subject to copyright law?

ii. Trademarks

For trademarks, only the registered owner has the exclusive right to use the mark. This raises the question of whether a registered owner has the authority to license a robot. When it comes to AI infringing trademark rights, the High Court in Lush vs. Amazon concluded that Amazon infringed the LUSH trademark by utilizing 'Lush' in its Google-sponsored adverts and in its search facility on the Amazon website even though it did not sell LUSH items.

Conclusion

AI can be used in the IP Law to grant IP rights and also can be used by IP rights owners to detect infringement. It can also be used in image & pattern recognition software to identify infringement. Ownership and license agreements must be formed when AI is produced by a team or in collaboration with others. This can ensure that the authors and contributors are properly credited and compensated for their efforts.

As the law stands today, only human and legal persons have the capacity and can be credited. If AI entities are not recognized as legal persons, then only human or legal entities can be held responsible for infringement.

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