Presented at CEIPI, Strasbourg, 2018

1. A R T I F I C I A L
I N T E L L I G E N C E :
O W N E R S H I P A N D
L I A B I L I T Y
D R A N D R E S G U A D A M U Z , U N I V E R S I T Y O F S U S S E X

2. A F E W A S S U M P T I O N S

3. O W N E R S H I P

4. S C E N A R I O :
S H O R T
V I D E O S
• Meet Google Clips, an AI-
powered camera that
constantly takes short
videos, and learns what is
interesting.
• Who owns the pictures it
takes?
• Assuming the owner, is
there even originality?

5. S C E N A R I O :
M U S I C
• Person visits website
Jukedeck and obtains tropical
song for use on video.
• Music attached to video is
misidentified by YouTube’s
ContentID.
• Owner of unrelated song sues
user for copyright
infringement.
• Who owns the song?

6. B A S I C R U L E S ,
A U T H O R S H I P V
O W N E R S H I P
• “Author in relation to a
work is the person who
creates it”.
CDPA s 9(1)
• Owner ≠ author
• “(1)The author of a work is
the first owner of any
copyright in it…”
s 11(1) CDPA

7. W H O I S T H E
A U T H O R ?
• Producer in sound recordings
• Producer and director in film.
• Person making the broadcast in a
broadcast.
• The author of the typographical
arrangement in a published
edition.
• The person who made
arrangements for the work to be
made in a computer-generated
work.

8. L E G A L
I S S U E S
• The author is the originator, then the
question is closely related to originality.
• Personhood required for authorship
(including legal personhood).
• Could we use joint authorship for
computer-generated works?
• Who is author in a collaborative work?
• What about contributions and joint
authorship?
• Who owns copyright if you’re
employed?

9. J O I N T
A U T H O R S H I P
• a “work of joint authorship”
means a work produced by
the collaboration of two or
more authors in which the
contribution of each author
is not distinct from that of
the other author or
authors.” s 10 CDPA.

10. J O I N T
A U T H O R S H I P
R E Q U I R E M E N T S
1. The authors contributed
to the making of the work.
Contribution must be
significant and original.
2. The work must be a
collaboration.
3. Contributions must not be
distinct and separate from
each other.

11. H E D L E Y V
K E M P [ 1 9 9 9 ]
E M L R 5 8 9
• Song composed at home by
member of Spandau Ballet,
other 3 members wanted
ownership.
• “When Mr Kemp presented a
song to the band the melody
was complete, the chord
structure was complete, the
rhythm or groove was apparent”.
• Not enough original contribution
for joint authorship.

12. W O R K S
C R E A T E D B Y
E M P L O Y E E S
• Work in the course of
employment belongs to
employer.
• Who is employer? Same
rules as tort. Managerial
control, contractors usually
not considered employees,
etc.
• Was work made in course
of employment?

13. D O E S T H E
P R O G R A M M E R
O W N T H E W O R K ?
• Interpretation in UK law is that the
programmer does not own the
work.
• Legislative intent, we have notes
from drafters of UK copyright law
that this is not the case.
• Whitford Committee: “the author of
the output can be none other than
the person, or persons, who
devised the instructions and
originated the data used to control
and condition a computer to
produce a particular result.”

14. E X P R E S S
N E W S P A P E R S V
L I V E R P O O L D A I L Y
P O S T [ 1 9 8 5 ] 3 A L L E . R .
6 8 0
• Computer-generated prize
published in Express newspapers
copied by Liverpool DP.
• Defendants argued the work was
not a work of copyright.
• "The computer was no more than
the tool […]. It is as unrealistic as
it would be to suggest that, if you
write your work with a pen, it is
the pen which is the author of the
work rather than the person who
drives the pen."

15. L I A B I L I T Y A N D
R E S P O N S I B I L I T Y

16. B U T F I R S T A Q U I C K
Q U E S T I O N …

17. A L G O R I T H M S
E V E R Y W H E R E

18. A S T O R Y …
• Rule 34 by Charles Stross
(sequel to Halting State).
• Rule 34 refers to an
Internet meme that posits
that there is Internet
pornography for every
conceivable subject.
• Book describes a rogue AI
that starts killing people
with IoT devices.

19. S H O P P I N G B O T
! M E D I E N G R U P P E B I T N I K

20. ! M E D I E N G R U P P
E B I T N I K
• Random Darknet Shopper
• Botnet buying random items
from the Darknet using Bitcoins.
• It purchased drugs.
• Police confiscated the bot, then
released.
• Public prosecutor deemed the
artistic work outweighed any
possible damage of purchasing
drugs.

21. T H E T R O L L E Y
P R O B L E M
T R O L L E Y P R O B L E M

22. 3 L A W S O F R O B O T I C S

23. R E S P O N S I B I L I T
Y O F A I
• Can machines be
infringers?
• Rights and
responsibilities of
subjects that cannot
exercise rights.
• Negligence, contract,
tort, we have ways of
dealing with liability.

24. D A T A M I N I N G

25. W H A T I S
D A T A
M I N I N G ?
• Data (or content) mining is to
be described as the extraction
of data from large datasets to
uncover previously unknown
and potentially useful
information.
• Requires large computational
power to sift through vast
amounts of data.
• Requires access to data.

26. T H E
P R O C E S S
• Individual content is created.
• Content is placed into data set,
repository or collection.
• Miner gains access to the
data.
• Mining tools applied to the
data set.
• Analysis of the processed
data.
• New knowledge.

27. R E L E V A N T
I S S U E S
• Company trains AI using
large dataset of copyright
works.
• Is it infringing copyright?
• Derivative works.
• Secondary liability /
intermediary liability.

28. D A T A M I N I N G
• Right now we have large
number of companies training
their AI using music, text,
poetry, etc to produce new
works.
• “Bot Dylan” generates music
after being “trained” by
listening to thousands of Irish
folk songs.
• Are these resulting works
infringing copyright?

29. T H E
L I A B I L I T Y
Q U E S T I O N
• Different type of liability.
• In copyright, what matters is that
someone has used a substantial
part of a work, and that there
can be a connection between
the original work and the alleged
infringement.
• In few systems (US fair use),
most derivative works would be
permitted as transformative, the
same is not true in other
jurisdictions.

30. W H A T I S
I N F R I N G E M E N T
?
• Infringement: to perform one
of the exclusive rights
without permission, and
without a defence.
• Can be direct (copying of a
CD), or indirect (make
adaptation of a book that
resembles too much
original).
• Can be primary or
secondary

31. P R I M A R Y
I N F R I N G E M E N
T
• Three elements:
1.Defendant carries an
exclusive act of the owner.
2.Defendant’s work is
derived from the copyright
work (causal connection).
3.The work, or a substantial
part of the work, has been
infringed.

32. C A U S A L
C O N N E C T I O N
• Francis Day & Hunter v Bron
[1963] Ch 587.
• “In a Little Spanish Town” and
“Why”. Similar lyrics.
• Claimants must not only prove
similarity, but that this similarity
was due to an act of copying.
• “…if subconscious copying is to be
found, there must be proof (or at
least a strong inference) of de facto
familiarity with the work alleged to
be copied”.

33. S U B S T A N T I A L
U S E
• Designer Guild Ltd v Russell
Williams (Textiles) Ltd [1998]
F.S.R. 803.
• The claimant had created a textile
flower design, sued for copyright
infringement.
• There was no doubt in the
proceedings that the design had
copyright and was an original
artistic work.
• Deliberate and substantial copying.

34. S U B S T A N T I A L
: U K
• Designer’s Guild [2001]
• “This is a matter of impression, for
whether the part taken is substantial
must be determined by its quality
rather than its quantity. It depends
upon its importance to the copyright
work. It does not depend upon its
importance to the defendants' work,
as I have already pointed out. The
pirated part is considered on its own
[…] and its importance to the copyright
work assessed. There is no need to
look at the infringing work for this
purpose. “ Per Lord Millett.

35. S U B S T A N T I A L
: E U R O P E
• Infopaq: Relevance of the taking
• “[the process of extraction by
Infopaq] increases the likelihood
that Infopaq will make
reproductions in part within the
meaning of Article 2(a) of the
[Infosoc] Directive because the
cumulative effect of those
extracts may lead to the
reconstitution of lengthy
fragments which are liable to
reflect the originality of the work
in question”.

36. M E R G I N G
S T A N D A R D S
• England And Wales Cricket Board Ltd &
Anor v Tixdaq Ltd & Anor [2016] EWHC 575.
• “I do not consider that it follows that
reproduction of any part of a broadcast or first
fixation amounts to an infringement. […] At
least in the case of broadcasts and first
fixations of films of sporting events,
broadcasters and producers invest in the
production of broadcasts and first fixations
knowing, first, that some parts of the footage
of an event (e.g. wickets in the case of cricket
matches and goals in the case of football
matches) will be more interesting to viewers
than other parts and, secondly, that there is a
market for highlights programmes and the like
in addition to the market for continuous live
coverage.” Arnold J

37. I N T E R M E D I A R Y
L I A B I L I T Y

38. D E R I V A T I V E
U S E S
• Non-harmonised area of
law, exceptions and
limitations are all over the
place.
• Fair use - Transformative
use
• Fair dealing
• Adaptation
• Derivative work

39. T R A N S F O R M A T I V
E U S E
• Fair use allows for open-ended
transformation of works.
• Campbell v Accuff-Rose Music:
work has to add “something
new, with a further purpose or
different character, altering the
first with new expression,
meaning, or message.”
• Cariou v Prince: lower court
considers taking Instagram
pictures infringing, while 2nd
Circuit CA declares fair use.

40. R O G E R S V K O O N S

41. B L A N C H V K O O N S

42. T E M P L E I S L A N D [ 2 0 1 2 ] E W P C C 1

43. D E C K M Y N A N D V R I J H E I D S F O N D S V Z W
V V A N D E R S T E E N A N D O T H E R S ( C -
2 0 1 / 1 3 )
Original Parody

44. T E M P O R A R Y
C O P I E S
• Art 5(1) Directive Directive 2001/29/EC.
Temporary copies are exempted if they:
• 1) constitute an integral and essential
part of a technological process;
• 2) pursue a sole purpose, namely to
enable the lawful use of a protected
work; and
• 3) do not have an independent
economic significance provided that:
• 3.1) the implementation of those acts
does not enable the generation of an
additional profit going beyond that
derived from the lawful use of the
protected work;

45. M O R A L R I G H T S

46. C O N C L U D I N G

47. L E G A L
R E S P O N S E S T O
N E W
T E C H N O L O G I E S
• Ban
• Regulate
• Self-regulate (or do
nothing)
• Co-regulate
• Apply existing law
• Draft new legislation

48. D O W E N E E D
A N E W
S Y S T E M ?
• Existing laws on negligence still fit for
purpose for most cases (Tort, delict,
extra-contractual liability).
• Proximate cause in tort of negligence,
an event sufficiently related to an injury
that the courts deem the event to be the
cause of that injury.
• Criminal liability is still problematic, but
unlikely as there is no mens rea.
• We may need an overhaul in contractual
law arising from autonomous agents.
• Revisit the Roman law of slavery?
Servus non habet personam.

49. @ T E C H N O L L A M A
“We seem to be made to suffer. It's our lot in life”
C3P0