Generating Rembrandt: Artificial Intelligence, Copyright, and Accountability in the 3A Era--The Human-like Authors are Already Here- A New Model

Artificial intelligence (AI) systems are creative, unpredictable, independent, autonomous, rational, evolving, capable of data collection, communicative, efficient, accurate, and have free choice among alternatives. Similar to humans, AI systems can autonomously create and generate creative works. The use of AI systems in the production of works, either for personal or manufacturing purposes, has become common in the 3A era of automated, autonomous, and advanced technology. Despite this progress, there is a deep and common concern in modern society that AI technology will become uncontrollable. There is therefore a call for social and legal tools for controlling AI systems’ functions and outcomes. This Article addresses the questions of the copyrightability of artworks generated by AI systems: ownership and accountability. The Article debates who should enjoy the benefits of copyright protection and who should be responsible for the infringement of rights and damages caused by AI systems that independently produce creative works. Subsequently, this Article presents the AI Multi- Player paradigm, arguing against the imposition of these rights and responsibilities on the AI systems themselves or on the different stakeholders, mainly the programmers who develop such systems. Most importantly, this Article proposes the adoption of a new model of accountability for works generated by AI systems: the AI Work Made for Hire (WMFH) model, which views the AI system as a creative employee or independent contractor of the user. Under this proposed model, ownership, control, and responsibility would be imposed on the humans or legal entities that use AI systems and enjoy its benefits. This model accurately reflects the human-like features of AI systems; it is justified by the theories behind copyright protection; and it serves as a practical solution to assuage the fears behind AI systems. In addition, this model unveils the powers behind the operation of AI systems; hence, it efficiently imposes accountability on clearly identifiable persons or legal entities. Since AI systems are copyrightable algorithms, this Article reflects on the accountability for AI systems in other legal regimes, such as tort or criminal law and in various industries using these systems

“For a Mess of Pottage”: Incentivizing Creative Employees Toward Improved Competitiveness

[Excerpt] Managing employees’ talent, promoting innovation, and improving productivity are critical challenges for organizations. Creative employees and the innovative products they develop can make a tremendous contribution to an organization’s success and competitive position. While employed inventors play an extremely important role in the production of an organization’s technological innovations, they are often either unrewarded or insufficiently rewarded for their achievements. The analysis and recommendations in this study present the argument that, contrary to common workplace practice, employers should consider a more employee-centric approach to intellectual property (“IP”) rights and other benefits. This will foster innovation within the workplace and encourage the development of successful IP products. In particular, employers should reconsider the current rigid practice of requiring employees to transfer all future product IP rights to the firm without significant compensation as well as the overall tendency to avoid attributing IP products to employed inventors. The need for such reform will prove critical in the digital era, especially in times of economic slowdown

SUMMONING A NEW ARTIFICIAL INTELLIGENCE PATENT MODEL: IN THE AGE OF CRISIS

As the world is seeking the exit strategy from the pandemic while still combating the fast-moving spread of the virus in many countries, we need an equally speedy and powerful tool to combat the pandemic’s implications. On the forefront against COVID-19, artificial intelligence (AI) technology has become a digital armament in the development of new drugs, vaccines, diagnostic methods, and forecasting programs. Patenting these new, nonobvious, and efficient technological solutions is a critical step in fostering the research and development, huge investments as well as commercial processes. This Article considers the challenges of the current patent law as they apply to AI inventions in general and especially in the age of a global pandemic. The Article proposes a novel solution to the hurdles of patenting AI technology by establishing a new patent track model for AI inventions (including the inventions that are made by AI systems and creative AI systems themselves). Unlike other publications promoting either complete abandonment of AI related patents, or advocating to maintain current patent laws, or recommending minor adjustment to patent laws, this Article suggests a novel model of separate patent venue solely targeting AI inventions. The argument of this Article is based on four pillars: the difficulty of having a patenteligible subject matter, the hurdle of the “blackbox” conundrum, the confusion of who is “a person of ordinary skills in the art” (POSITA), and the criticality of establishing a new AI patent track model, especially during a global epidemic

The Promised Land: Blockchain and the Fashion Industry

Despite being a highly creative industry, the fashion industry lacks effective intellectual property (IP) protection in the United States. This article posits that, in the midst of the digital era, blockchain technology, particularly smart contracts, can remedy the failure of IP laws to protect fashion designs and create efficiencies that may dramatically improve the industry. Therefore, if the fashion industry were to adopt a blockchain-based platform, enabled by smart contracts, it could address many of the current challenges stemming from a lack of sufficient IP protection. This article explores the features of blockchain technology, including NFTS, and the application to the fashion industry. It explains how blockchain technology can be used to create a crypto-legal structure of endogenous quasi-legal protections administered through a decentralized system of self-executing smart contracts, which together can fill the gaps in the existing IP regime. This article further addresses how adopting such technology would improve creators’ control over their designs, the distribution chains, fee collection, and the fight against infringement, while effectively creating a more efficient and transparent industry. These conclusions are based on and justified by the theory of law and economics. Finally, the article urges the first ones to adopt this technology, or those in desire of a competitive advantage, to adopt blockchain technology, and discusses the hurdles that will arise in implementing such a system. It concludes with an assessment of how blockchain-based smart contracts will affect various players in the industry

From the Myth of Babel to Google Translate: Confronting Malicious Use of Artificial Intelligence—Copyright and Algorithmic Biases in Online Translation Systems

Many of us rely on Google Translate and other Artificial Intelligence and Machine Learning (AI) online translation daily for personal or commercial use. These AI systems have become ubiquitous and are poised to revolutionize human communication across the globe. Promising increased fluency across cultures by breaking down linguistic barriers and promoting cross-cultural relationships in a way that many civilizations have historically sought and struggled to achieve, AI translation affords users the means to turn any text—from phrases to books—into cognizable expression. This Article discusses the burgeoning possibilities in the 3A Era (Advanced, Autonomous, AI systems) of AI online translation as accessible tools, whose users are data suppliers and feedback providers, and hence, contributors to the programing and improvement processes of these translation tools. On the other hand, this Article also acknowledges the real concerns this new realm raises, stemming from malicious uses of AI, which are most often concealed from the public. Such hidden aspects include built-in algorithmic biases, such as race, sex and gender, color, religion, or national origin biases, which this Article addresses in a discussion of AI systems’ systemic shortcomings. Because AI translation systems learn and function through the data that they receive from data providers, they are vulnerable to societal biases. When users offer feedback, these systems may perpetuate sexist, racist, or otherwise objectionable expressions, of which other users, when consulting the systems, are unaware. Furthermore, examining the current copyright regime, this Article claims, for the first time, that we, as users, have become inadvertent infringers of legal rights since a translation, according to copyright law, is a derivative work owned and controlled by the author. As such, an author’s permission is necessary prior to the creation of a translation, with the author in a position to collect payment when due. Moreover, under current law, the Fair Use Doctrine is frequently inapplicable. This Article claims that the legal and academic communities and policy makers have failed to address AI translation systems within the copyright regime, and that this failure renders the current copyright regime outdated and ill-equipped to handle the advent of sophisticated AI tools. Additionally, this Article states that the present inability of AI technology to routinely capture the nuance of human prose gives rise to another concern. The ubiquitous role such (as yet) flawed AI online translation systems play in translation services, for personal or commercial purposes, should be better balanced with the concerns of authors—who may worry about the linguistic integrity of an AI translation of their work—and their rights, in certain circumstances, to control translations of their work and object to unauthorized AI translations. Understanding the concerns attending unauthorized AI translations under the current copyright regime, while still recognizing that users should be able to profit from the wellspring of literacy which AI translation offers, this Article argues for a harmonization of AI translation with amended copyright protection. To that end, this Article calls on policymakers to adjust the current legal regime to include advanced technologies and suggests new principles for combining legal tools with existing technology. Such an approach would better balance the benefits of accessible AI translation systems with the requirements of a modified, modern copyright regime via the implementation of a method coined “fair use and equality by design.” Additionally, by recognizing the conflicting interests at stake, this Article invites international policymakers, such as WIPO (the World Intellectual Property Organization), to promote the development of international standardized guidelines for the use of AI translation systems, and possibly other AI systems, by emphasizing fair use exemptions and limitations. This Article concludes that by understanding the significant drawbacks of AI translation systems and adopting the suggested principles, policymakers can promote access to an evolving AI technology, while also recognizing the integrity of authors’ linguistic choices and preserving the beauty of linguistic diversity—which, as the ancient story of Babel hinted, is valuable because of, not despite, the challenges it poses

The Marrakesh Treaty for Visually Impaired Persons: Why a Treaty Was Preferable to Soft Law

This paper addresses the debates leading up to the recently adopted international treaty on copyright exceptions for the visually impaired, the Marrakesh International Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. This treaty was successfully adopted by the World Intellectual Property Organization (WIPO) in June 2013. Leading up to the negotiation of this instrument, multiple UN member states pushed for the instrument to be negotiated as soft law instead of a treaty. We argue that making this instrument soft law would have precluded its success. WIPO thus correctly chose to make this international instrument a treaty rather than a joint recommendation. This paper explains the international need for this instrument, to solve a global book famine and protect the access rights of visually impaired people. It then outlines the debate that occurred leading up to adoption over whether the instrument should be hard law or soft law. This debate illuminates that discussions of hard versus soft law need to be situated in context. We explore both related human rights law and other international copyright law to explain how they altered the hard law-soft law calculation in this case. The concluded treaty reflects WIPO\u27s recognition of related copyright law that had been established in other forums. By creating a binding instrument, WIPO has encouraged developing countries to implement the new treaty, towards the goal of assisting those visually impaired persons most in need of an international solution