Should robot artists be given copyright protection?

During the last decades, robotics is gaining more relevance than ever for all legal operators. When we think about any of the artistic manifestations of our history, it is difficult for us to think that a robot equipped with Artificial Intelligence can accomplish them instead of a human being, yet we admit that the number of artistic interactions between machines, computer programmers and people is a growing reality. The reality is that we already have devices capable of creating artworks that could be subject to intellectual protection or copyright, the question is whether the copyrights derived from these works could be attributed to the AI itself

For the time being, the protection of intellectual works generated by AI-endowed robots has no place in our Intellectual Property Law, since a human condition cannot be observed in them: an indispensable requirement, as well as the originality of the work (article 5 of the mentioned Law).

However, in Europe an incipient regulation has already been contemplated for those devices with sufficient autonomy to create content, through the Draft Report with Recommendations on Civil Law Rules on Robotics of May 31, 2016 of the Committee on Legal Affairs. The proposal speaks of "electronic personality" and is not limited to the recognition of a set of rights and obligations, it also raises the need to establish whether this capacity should be full or limited, direct or represented, as in the case of commercial companies.

This idea is found in paragraph 59, where the Commission is required to explore and analyse the implications of various solutions, including "creating a specific legal personality for robots in the long term" so that, at least, the more complex autonomous robots can be given a "specific legal personality" so that they can be considered as authors of intellectual works, responsible for repairing the damage they may cause and apply this electronic personality to those cases in which the robots take intelligent autonomous decisions or interact with third parties independently (1).

Regarding the need for action by the European Union, the "Cost of non-Europe in robotics and artificial intelligence" has been developed approved in June 2019, which addresses liability and insurance issues in relation to robotics and AI, addressing those regulatory gaps and current challenges, as well as the potential benefits and opportunities of an EU regulatory framework (2).

Also, on February 19, 2020, the European Commission published the White Paper on Artificial Intelligence, which explains what AI entails. It is based on the idea that these devices can improve efficiency and productivity, as well as strengthen the competitiveness of European industry and improve the welfare of citizens.

At the international level, there is no concrete answer as to who owns the copyright of the works made by robots, as the legal framework varies from country to country. For example, a court in Shanghai (China) has contemplated granting these rights to an AI creating a literary article, while in the UK they ensure that these rights are granted to the developer of the device.

The European proposal on this issue is therefore very innovative in that it refers to an "electronic personality" in the style of commercial companies. In this sense, it has been considered to look at corporate legal entities, and to recognize robots as a kind of pseudo legal entity, in this case electronic, which allows them to be directly charged with or attributed some responsibility (3).

However, it is difficult for our society to understand the recognition of a personality proper to robots, regardless of the fact that this may be attributed to them in the more or less near future. Initiatives at the European level have already started and an imminent harmonization of intellectual property legislation is expected, addressed from an instrumental perspective, in which the human being is complemented, but not replaced, in the same way that the human being will have to adapt to the new use of this technology.

* Article derived from the Bachelor's Thesis of Carmen Hidalgo Sancho, "El robot inteligente en el derecho de autor: una aproximación a la personalidad electrónica".

(1) Europa quiere regular a los robots, March 2017, Available at: http://replicantelegal.com/europa-quiere-regular-a-los-robots/#_ftn4 March 2017

(2) THIRION, E. Cost of non- Europe in robotics and artificial intelligence: Liability, insurance, and risk managment, June (2019), Brussels.

(3) As stated in the recommendations of the European Parliament.

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