Artwork Status of Products Made by Artificial Intelligence
With the rapid development of technology in the 21st century, Artificial Intelligence (“AI”) is becoming an integral part of our lives. While technology used to be limited to phones, computers, and televisions up until fifteen years ago, after the rapid advancement of technology has introduced various systems, such as AI, into our lives. As AI simplifies our lives in sectors such as transportation, healthcare, and communication, some debates are emerging in technology law, which has not progressed as quickly as technology itself. This debate includes the status of works created by AI and the status of ownership in terms of Intellectual Property. In examining the relationship between law and art, legal protection is necessary to ensure that works created by authors who produce works of certain value are safeguarded. In brief, there are moral and economic rights that need to be protected by law. The Turkish Law on Intellectual Property and Artistic Works No. 5846 (“IP Law”), entered in the force in 1951 and need to regulate with technological advancements.
1. What is Artificial Intelligence?
Artificial intelligence is not yet a well-defined concept as it is only recently becoming a part of our lives. John McCarthy, the pioneer of the concept of AI, defined AI as the ability to teach machine behaviours like those of humans. [1] The Presidential Digital Transformation Office in Türkiye defines AI as the capability of a computer or computer-controlled robot to perform tasks typically associated with intelligent entities. [2] Perceiving AI solely as robots limits the scope of the concept. Today, AI is present in various everyday items such as smartphones, computers, and home appliances. For instance, the Siri application on iPhones and ChatGPT.
2. What is the Artwork?
IP Law is a law concerning works, authors, copyright, and their protection. The concept of "work" is defined in Article 1 of IP Law. According to this definition, a work is:
“a) Work: Any kind of intellectual and artistic product that reflects the personal characteristics of its owner and is classified as a work of science and literature, music, fine arts, or cinema." [3]
According to this definition, a work must encompass three elements: the objective element (falling under one of the types of works specified in IP Law), the subjective element (reflecting the personal characteristics of the author), and the concretization (the requirement for the intellectual product to be fixed in a form that is suitable for possession and perceptible by others). Regarding the concretization element, it is not necessary for the form to be a physical entity. The Court of Cassation has stated that if a work remains at the conceptual stage, it will not gain the status of a work. [4] Algorithms are abstract concepts and, therefore, are not considered works under IP Law as they do not manifest in the real world. [5] However, artificial intelligence algorithms are part of computer programs and are protected as scientific and literary works under Article 2/1 of IP Law. Similarly, Article 1 of the European Parliament and Council Directive 2009/24/EC on the legal protection of computer programs also provides protection for computer programs as literary works under copyright law according to the Berne Convention. [6]
3. Who is the Author?
The author is defined in IP Law as the person who creates the work. No legal action is required to acquire a right over the work; rights are obtained as soon as the work is created. Although debated in academic circles, the author is generally considered to be a natural person; however, this may differ in the laws of some countries. The definition of the author as the person who creates the work raises issues regarding the status of products created by AI. [7]
4. Entitlement Problem in Artificial Intelligence Products:
There is no problematic aspect regarding the ownership of rights for works created by computers or human hands. These are protected under the category of scientific and literary works. However, the ownership of rights for products created by artificial intelligence is a problematic issue due to the numerous stakeholders involved in the creation process. [8] Existing legal regulations stipulate that only a natural person can fulfil the personal characteristic requirement. Works must also be expressed in a mental, emotional, or aesthetic manner, which is generally considered to be within the capability of a human being. [9] Consequently, determining the status of artificial intelligence or attributing personality to it does not establish it as an author, as the requirement for personal characteristic will not be met. [10] There are differing views in the literature on this issue: "Some authors argue that products created by artificial intelligence cannot be legally protected because they do not meet the personal characteristic requirement, while others suggest that recognizing the artificial intelligence itself as the author of such products could contribute to technological advancement." [11] “According to Güçlütürk and Cankat, products created by artificial intelligence will be accepted as works, and the individuals using the artificial intelligence will be considered the authors.” [12] “Another proposed solution is that all artificial intelligence products should not be subject to copyright protection, i.e., they should be open to public use.” [13] There is no regulation regarding the work status of products created by autonomously operating AI. Aktürk suggests that an exceptional regulation could be made in IP Law for products created by artificial intelligence operating in a semi-autonomous manner. A regulation stating that "Intellectual products created by semi-autonomous artificial intelligence are considered works." could be appropriate. [14] According to Aktürk, such an exceptional regulation in IP Law would eliminate the uncertainty regarding products created by semi-autonomous AI. [15]
The advancement of technology and the increasing role of AI in our lives have also impacted the legal world. The uncertainty regarding whether products created by artificial intelligence are considered works and the status of ownership poses a problem. As a proposed solution by Özkan, "assigning both economic and moral rights to the individual who created the artificial intelligence, and who carried out the necessary work and regulations, for the protection of new works produced by artificial intelligence could prevent rights infringements in the short term." [16]
[1] Özkan, A., “Yapay Zeka Tarafından Üretilen Fikir ve Sanat Ürünlerinin Korunması”, Türkiye Barolar Birliği Dergisi, Ocak-Şubat 2023, Sayı 164, p.212.
[2] Türkiye Cumhuriyet Cumhurbaşkanlığı Dijital Dönüşüm Ofisi
[3] The Tukish Law on Intellectual Property and Artistic Works, No. 5846
https://www.mevzuat.gov.tr/mevzuatmetin/1.3.5846.pdf
[4] Özkan, 2023, p.223.
[5] Güçlütürk, O. G., & Cankat, R., “Yapay Zeka ile Oluşturulan Ürünlerin Eser Niteliği ve Eser Sahipliği Meselesi" Gelişen Teknolojiler ve Hukuk II (pp.195-222), 2021, İstanbul: On İki Levha, p.199.
[6] Berne Convention
https://telifhaklari.ktb.gov.tr/Eklenti/106886,bern20120318349175pdf.pdf?0
[7] Özkan, 2023, p.224.
[8] Gözübüyük. B., “Yapay Zekanın Meydana Getirdiği Fikri Ürünlere İlişkin 5846 Sayılı Fikir ve Sanat Eserleri Kanunundaki Sorunlar Ve Çözüm Önerileri”. Kırıkkale Hukuk Mecmuası (Nisan 2021) p.68.
[9] Özkan, 2023, p.231.
[10] Aktürk, E., Telif Hakkının Yapay Zekȃ Ürünleri Açısından Değerlendirilmesi. Çukurova Üniversitesi Hukuk Araştırmaları Dergisi(5), 2024, s. 212. https://doi.org/10.59399/cuhad.1450690
[11] Özkan, 2023, p.233.
[12] Güçlütürk & Cankat, 2021, p.220.
[13] Aktürk, 2024, p.227.
[14] Aktürk, 2024, p.226.
[15] Aktürk, 2024, p.226.
[16] Özkan, 2023, p.235.
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