Discussion of Copyright Protection for AI-created Works in Japan
p. 269-276
Texte intégral
I. Introduction
1Many Artificial Intelligence-created (AI-created) works exist today; for instance, AI-created works can be found in The Next Rembrandt Project1. A new “Rembrandt work” was created using AI that learned Rembrandt’s paintings included in the training data.
2However, the treatment of AI-created works in intellectual property law has yet to be determined. Thus, this article deliberates on the treatment of AI-created works under copyright law in Japan2. In Japan, as in other countries, the need for the protection of AI-created works under copyright law is currently being discussed3. There are two main issues. The first pertains to the protection of such works under the current copyright act, specifically whether an AI-created work satisfies the requirements of a copyrighted “work” under the Japanese Copyright Act. The second relates to the necessity of copyright protection through an amendment of the existing law. The latter concerns an additional issue, which is the type of protection that should be granted if it is determined that there is a need for the protection of AI-created works.
II. Under the Current Copyright Act
3The current Japanese Copyright Act defines a copyrighted “work” as “… a production in which thoughts or sentiments are expressed in an original way and which falls within the literary, scientific, artistic or musical domain”4. This definition can be divided into four requirements: (1) thoughts or sentiments, (2) expression, (3) originality, and (4) a specific domain. In general, works are protected by copyright, with a few legislative exceptions (e.g., documents of court decisions)5. AI-created works encounter challenges fulfilling two requirements in terms of the definition of the “work”. Firstly, satisfying the requirement of (1) thoughts or sentiments is problematic for AI-created works. This requirement is based on the objective of the Japanese Copyright Act of providing incentives for human creativity. Of course, certain works just assisted by AI in the process of creation should be protected under the current Copyright Act because such creations should be considered to be human-created works6, 7. However, it is suggested that something that is generated using AI and that is characterised by vague human input (e.g., just ordering the creation of music) or that is created with a trivial contribution of humans (e.g., pushing a switch to initiate AI-generated painting) should not be protected under the current Copyright Act because such creations do not reflect human thoughts or sentiments8, 9.
4Secondly, there is an additional challenge in terms of originality. Some scholars believe that originality (original expression) should reflect human creations. AI-created works do not manifest human creativity in the same way10. According to this perspective, AI-created works also do not satisfy the third requirement for copyright protection.
III. The Necessity of Legal Reform: Risks and Benefits
5As explained earlier, AI-created works are not protected by the current Japanese Copyright Act. However, it is controversial as to whether AI-created works should or should not be protected with legal reform. To this end, it is useful to evaluate the risks and benefits of legal reform in relation to such protection.
6It has been proposed that AI-created works should not be eligible for protection because such protection would negatively impact social benefits11 since the works produced by AI are significantly more substantial than those created by humans. In other words, if numerous AI-generated works were created and distributed with copyright protection, this might become a major obstacle to new creations and use by third parties12. Another concern is that it is likely that only a few multinational IT companies with highly developed AI technologies would monopolise the majority of copyrights of AI-created works13.
7Conversely, it has been suggested that, if there is a practical necessity for it, the investment in an AI system for AI creation should be protected, especially until the costs of AI-created works are decreased in the future 14, 15.
IV. A Variety of Legal Protection Measures
8In addition to the perception that AI-created works should be protected by legislation, various opinions exist regarding the implementation of practical methods of protection.
9One possible view is that AI-created works should be protected in the same way and to the same extent as human-created works; this represents the most extreme position in terms of the protection of AI-created works. However, it is arguable whether AI-created works should receive the same protection as human-created works since it is commonly accepted that, in principle, the moral rights of authors of AI-created works are not recognised16. This is because it is difficult to imagine the necessity of granting moral rights to AI-created works with the objective of protecting “obsessions” of AI17; in addition, the restrictions on the use of the works would be too broad.
10It has also been suggested that neighbouring rights are adequate in protecting AI-created works, which is similar to the case of record producers or broadcasting companies, given that the investment in AI-created works require protection18. Thus, protection by neighbouring rights for AI-created works would be acceptable if it was limited to the protection of investment rather than the full copyright protection that is conferred on human-created works. An acceptable solution might be to legislate new neighbouring rights for AI-created works, if needed.
11Elsewhere, it has been proposed that AI-created works should be protected by alternate legal systems, such as trademark or unfair competition prevention acts, rather than by copyright act because if AI-created works become common in the future, protection under the relevant laws should promote the creation of “valuable” AI-created works only19. According to this perspective, the criterion of protection should be one that focuses on goodwill or publicity20 rather than the originality of the works21.
12Importantly, the type of protection required should be influenced by the reason for the protection of the AI-created works.
V. “Pretended Contents Problem”
A. Definition
13A “pretended contents problem” is said to arise when there is a gap between the protection of human-created works and that of AI-created works. This problem is caused by the intentional publication of AI-created works as human-created works to qualify for stronger copyright protection22. This enables creators using AI to pretend to have full protection, including moral rights as authors. If this situation became widespread, it would significantly and negatively impact the social benefit and the legal system of copyright law. Thus, the existence of a gap between the protection afforded to human-created works and that given to AI-created works is problematic23.
B. Potential Solutions
14However, it is debatable whether it would be appropriate to protect AI-created works in the same way as human-created works merely to solve this problem. There may be other ways of resolving it.
15Firstly, authors bear the burden of proof of authorship; they have to demonstrate their process of creation to show how they created the works in question in general. If authors cannot do this, the judges will conclude that they are not the authors of the works in question; similarly, there will be no infringement of their copyright by non liquet24, 25.
16Furthermore, the Japanese Copyright Act already contains a penal provision that prohibits individuals from “using the true name of a person other than the author or the pseudonym by which a person other than the author is commonly known, to indicate the name of the author”26. It might be useful to legislatively broaden this provision to mitigate the “pretended contents problem” of AI-created work27.
17Accordingly, these solutions might diminish the extent and severity of the “pretended contents problem”.
VI. Ownership of Rights to AI-created Works
18The question of who owns the rights to AI-created works also needs to be considered if AI-created works are to be protected in some way under copyright law. In terms of the legal system today, it could be argued that AI cannot be considered to be the owner of rights unless it is treated as a legal entity, for example, as a company. Alternatively, the Japanese Copyright Act contains an article that enables an employer (e.g., a company) to obtain the rights to works created by employees (work-for-hire)28. One application of the article is that the owner of rights to AI-created works could be someone who “employs” AI for the purpose of creation (with legislative reform)29. In addition, the Japanese Copyright Act contains a rule that the copyright of cinematographic works is owned by the film company (producer) if certain requirements are met, while the film director is the author, for the purpose of protecting the investment of the film company (Copyright Act Art. 29). Thus, a similar legislative approach, in the case of AI-created works with no author, has been proposed30.
VII. Conclusion
19As mentioned previously, the protection of AI-created works under copyright law continues to be deliberated from various angles. This paper has briefly covered approaches to the protection of AI-created works by copyright law and its methods in Japan.
20Additionally, numerous issues surround AI and copyright law. For example, it needs to be established if the copyrighted works of individuals can be used as data when providing AI training31. In addition, in the event that an AI-created work is similar to the copyrighted work of an individual, it would be important to determine whether copyright infringement occurred.
21AI technology will continue to develop, and legal scholars and practitioners need to be prepared for the issues that will arise as a result. To this end, it would be useful to share theoretical and practical developments on these issues in various countries and deliberate on them further32. It is sincerely hoped that this paper has made a useful contribution in this regard.
* This work was supported by Japan Society for the Promotion of Science (JSPS) Bilateral Joint Research Project Grant Number JPJSBP120193212 (SAKURA Program).
* This work was supported by JSPS KAKENHI Grant Number JP19H00569.
Notes de bas de page
1 https://www.nextrembrandt.com/ (All websites cited in this paper were accessed on August 17, 2021).
2 Although not the subject of this paper, the protection of AI creations by patent law has also become an important issue. For this issue, it might be necessary to consider the movement of the Artificial Inventor Project (https://artificialinventor.com/).
3 The research results indicated that no court cases have directly ruled on AI-created works to date.
4 Copyright Act Art.2(1)(i). The translations of the articles in this paper are quoted from the Japanese Law Translation Database System (http://www.japaneselawtranslation.go.jp/?re=2).
5 Copyright Act Art.13.
6 It is just like the use of a brush or a painting application when drawing paintings.
7 Yasuyuki Echi, AI-Created Work, Machine Learning and Copyright Law, Patent 73(8) pp. 132-133 (2020).
8 See Report of Next Generation Intellectual Property System Review Committee, p. 22 (2016). Available from: https://www.kantei.go.jp/jp/singi/titeki2/tyousakai/kensho_hyoka_kikaku/2016/jisedai_tizai/hokokusho.pdf See also Report of Committee to Review Intellectual Property regarding New Data-related Assets, p. 36 (2017). Available from: https://www.kantei.go.jp/jp/singi/titeki2/tyousakai/kensho_hyoka_kikaku/2017/johozai/houkokusho.pdf The overview in English of the latter is available from https://www.kantei.go.jp/jp/singi/titeki2/tyousakai/kensho_hyoka_kikaku/2017/johozai/houkokusho_e.pdf
9 Of course, the distinctions are not always easy to make.
10 Tatsuhiro Ueno, Copyright Law Issues Concerning AI and Machine Learning: Recent Developments in Japan and Europe, The Horitsu Jiho 91(8), pp. 34-35 (2019).
11 Supra note 8, Report of Next Generation Intellectual Property System Review Committee, p. 24.
12 This problem is magnified by the fact that copyright law, unlike patent law, provides protection without any formalities (Copyright Act Art. 17(2)). In this regard, under patent law, when seeking protection for AI-created inventions, a patent application must be filed, and the novelty and the inventive step requirements must be satisfied. Therefore, the problem of excessive protection does not arise as much as in copyright law. See Hisayoshi Yokoyama, Some Issues Related to AI in Copyright Law and Patent Law, The Horitsu Jiho 91(8), p. 52 (2019).
13 Kensaku Fukui, AI Contents: How It Will Transform Business and Intellectual Property Rights, Intellectual Property Management 67(4), p. 490 (2017).
14 Yoshiyuki Tamura, COPYRIGHT LAW (2nd ed., Yuhikaku, 2001) pp. 400-401 (about “computer-generated” works), Yokoyama, supra note 12, p. 51.
15 In addition, according to another standpoint that supports copyright protection for AI-created works, there is a concern that human-created works could be considerably more expensive than AI-created works if the latter do not receive protection under copyright law. In other words, human-created works could be negatively impacted since they could be uncompetitive and unpopular. However, in this regard, an appropriate response would be to expect a higher level of human creativity and provide a mechanism that promotes the increased use of human-created works. See supra note 8, Report of Next Generation Intellectual Property System Review Committee, p. 29.
16 Tamura, supra note 14, p. 401, Koji Okumura, AI-Generated Content and Copyright: Focused on Copyrightability, Patent 70(2), p. 17 (2017), Yokoyama, supra note 12, p. 52.
17 Of course, there might also be an approach by which the moral rights of “human authors” (e.g., users of AI) of AI-created works can be protected. However, even in such cases, the need to protect their “obsessions” would be highly arguable since their involvement would not be extensive enough to warrant them being considered the authors of the works.
18 Tsuyoshi Uchida, Copyright Protection of Computer-generated Works and Issues for the Protection: Implications from Three Court Decisions in Australia, in CIRCLE OF RESEARCH ON INTELLECTUAL PROPERTY RIGHTS (Essays in memory of the Late Professor Tatsuki Shibuya, Japan Institute for Promoting Invention and Innovation, 2016) pp. 556-558, Yokoyama, supra note 12, p. 52.
19 Supra note 8, Report of Next Generation Intellectual Property System Review Committee, p. 27, Yokoyama, supra note 12, p. 52.
20 In Japan, there is no law that directly provides for the protection of the right of publicity. However, an infringement of the right of publicity is considered to be a tort under the Civil Code. While the requirements and scope of the protection are shaped by court decisions, infringement of the right of publicity is mainly defined as an act that can be said to have been committed solely for the purpose of utilising the customer attraction power of the celebrity’s portrait, name, etc. Thus, since only human publicity is protected, a legislative solution would be required in the event of the protection of AI-created works. Yokoyama, supra note 12, p. 52.
21 See supra note 8, Report of Next Generation Intellectual Property System Review Committee, p. 27, Yokoyama, supra note 12, p. 52.
22 Okumura, supra note 16, pp. 14-16.
23 Ibid.
24 Yokoyama, supra note 12, p. 51 (note 12). Echi (supra note 7, p. 139) says that if AI-created works were to spread throughout society, it might become necessary to carefully record the process of creation of works to show human contribution.
25 In addition, under the Japanese Copyright Act, it is presumed that a person whose name is indicated on a work is the author of the work (Copyright Act Art. 14). This should also be kept in mind. See Hajime Idei, Current Status of AI Creation and Some Legal Issues with a Particular Focus on Copyright Law, Copyright 712, p. 17 (2020).
26 Copyright Act Art. 121.
27 Ueno, supra note 10, p. 37.
28 “For a work […] that an employee of a corporation or other employers (hereinafter in this Article such a corporation or other employers are referred to as a “corporation, etc.”) makes in the course of duty at the initiative of the corporation, etc., and that the corporation, etc., makes public as a work of its own authorship, the author is the corporation, etc., so long as it is not stipulated otherwise in a contract, in employment rules, or elsewhere at the time the work is made” (Copyright Act Art. 15(1)). To be precise, the employer becomes the author of the employee’s work. It is still a rather peculiar provision (although the moral rights of the author might not be granted in the case of AI-created works).
29 Okumura, supra note 16, p. 16, Idei, supra note 25, p. 16.
30 Okumura, supra note 16, pp. 16-17.
31 The Japanese Copyright Act contains a broad copyright exception for data analysis, which includes AI training, and is even applicable to commercial purposes (Copyright Act Art. 30-4 [ii]). See Ueno, supra note 10, pp. 39-40.
32 Ueno, supra note 10, p. 40. For recent discussions held in the European Union, see Alexandra Mendoza-Caminade, Création et intelligence artificielle: la protection par le droit d’auteur en voie de legitimation (translated into Japanese by Yasuto Komada), Intellectual Property Law and Policy Journal 59, p. 151 (2021).
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