A new concept of creativity: intellectual property issues around generative AI (Univ.Bicocca, sett2023)

Avv. Simone Aliprandi, Ph.D. (www.aliprandi.org) – giovedì 21/09/2023
A new concept of creativity: intellectual property issues around generative AI
A new concept of creativity:
intellectual property issues around generative AI
Avv. Simone Aliprandi, Ph.D.
Image generated with DALL-E 2
Università degli studi
di Milano Bicocca
(Corso di Dottorato
in Informatica)
September 21, 2023

A brief presentation...
●
Laurea in giurisprudenza a Pavia (2003)
●
Avvocato del Foro di Lodi (2007)
●
Seconda laurea in Scienze della pubblica
amministrazione a Pavia (2008)
●
Dottorato di ricerca in Società
dell’Informazione a Milano Bicocca (2012)
●
Perfezionamento in Data protection e Data
governance a Milano Statale (2018)
●
Perfezionamento in Coding for lawyers e
legal tech a Milano Statale (2021)
●
Attivo principalmente nella consulenza
stragiudiziale nel settore proprietà
intellettuale e ICT law
●
Docente a contratto in corsi universitari
●
Autore di vari libri e articoli

A lot of ways to follow/contact me
• Website: www.aliprandi.org
• Array Law Firm: www.array.eu
• Blog: http://aliprandi.blogspot.it
• Facebook: www.facebook.com/simone.aliprandi.page/
• Twitter: @simonealiprandi
• LinkedIn: http://it.linkedin.com/in/aliprandi
• SlideShare: www.slideshare.net/simonealiprandi/
• YouTube: https://www.youtube.com/simonealiprandi

a suggestion for further investigation
more info: https://aliprandi.org/books/autore-artificiale/

PART 1
Some basic tips
about copyright law

what is copyright about? – 1
Berne Convention, Art. 2 (Protected works)
1. The expression “literary and artistic works” shall include
every production in the literary, scientific and artistic
domain, whatever may be the mode or form of its
expression, such as:
●
books, pamphlets and other writings;
●
lectures, addresses, sermons and other works
of the same nature;
●
dramatic or dramatico-musical works;
●
choreographic works and entertainments
in dumb show;
●
musical compositions with or without words;
...

[continues] Berne Convention, Art. 2 (Protected works)
●
cinematographic works to which are assimilated works
expressed by a process analogous to cinematography;
●
works of drawing, painting, architecture, sculpture,
engraving and lithography;
●
photographic works to which are assimilated works
expressed by a process analogous to photography;
●
works of applied art;
●
illustrations, maps, plans, sketches and
three-dimensional works relative to geography,
topography, architecture or science.

TRIPs established also that:
●
Computer programs must be regarded as "literary
works" under copyright law and receive the same terms
of protection;
●
Compilations of data or other material, whether in
machine readable or other form, which by reason of the
selection or arrangement of their contents constitute
intellectual creations shall be protected as such.

copyright is also about derivative works
Berne Convention, Art. 2, Par. 3
Translations, adaptations, arrangements of music
and other alterations of a literary or artistic work
shall be protected as original works without prejudice
to the copyright in the original work.

copyright is also about collections
Berne Convention, Art. 2, Par. 5
Collections of literary or artistic works such as
encyclopaedias and anthologies which, by reason of
the selection and arrangement of their contents,
constitute intellectual creations shall be protected
as such, without prejudice to the copyright
in each of the works forming part of
such collections.

what is copyright NOT about?
TRIPs – Art. 9, n. 2
Copyright protection shall extend to expressions
and not to ideas, procedures, methods of
operation or mathematical concepts as such.

how can an author get copyright
on his own creations?
try to answer

how can an author get copyright
on his own creations?
He/she doesn't have to do anything in
particular; the right is acquired
"automatically" with the creation of
the work (provided that the work has a
minimum level of novelty and originality).
this is creativity
(according to copyright law)

Normally, it is sufficient
to have a proof of
time anteriority.
(e.g. putting a time stamp
into the file)
how can an author prove
the authorship of his work
(and therefore the ownership of the rights)??

originality = skill + labour + judgement
threshold of originality
(in UK/USA copyright doctrine)
skill and labour can be also covered
by a machine…
...but judgement is always human

PART 2
The generative AI revolution:
a new concept of creativity?

HAMLETIC DOUBT
Is creative activity
an exquisitely human
(or maybe divine) matter?

“Beastly” (but enlightening) precedents

The issue had already emerged in cases of murals or paintings
made by elephants. This led the U.S. Copyright Office to clarify
the matter in its Compendium of U.S. Copyright Office
Practices (3rd ed., par. 313.2 – 313.4):
The Copyright Act protects “original works of authorship”.
To qualify as an “original” work of authorship, the work
must be independently created and must contain some
minimal amount of creativity. The U.S. Copyright Office
will not register works that do not satisfy these
requirements. […] The U.S. Copyright Office will
not register works produced by nature, animals,
or plants.
copyright on animal-made works?

trying to “hack” copyright
in the music field
Actually, copyright on
music works is a more
complex issue...
Anyway, this an
interesting provocation.
Link to the article:
https://www.extremetech.com/e
xtreme/306575-new-tool-genera
tes-every-possible-melody-for-p
ublic-domain-use

●
AI systems capable of carrying out "systematic" and
massive tasks had already been widespread for some
time and had already entered common use.
●
But now they are also able to create works that are
“creative” and in many cases are indistinguishable
from human-made works.
●
And above all, now these tools are available to
everyone (they do not require particular
technical skills and speak our language)
generative AI:
where is the real innovation?

Oscar Wilde No. 18
Photo portrait taken by the
American photographer
Napoleon Sarony in 1882
Subject of dispute in one of the
most interesting judicial cases
in the history of copyright law
(Burrow-Giles Lithographic Co.
vs. Sarony → LINK)
Creativity mediated by the machine:
a historic problem for copyright law

●
Generative AI: is there something creative
or are they just stochastic parrots?
●
Is creativity more in the algorithm or more in
the dataset used for training?
●
What is the role of the human user of
generative AI systems?
●
Is there a copyright on these creations
and who is the rights owner?
BIG QUESTIONS

works created BY a generative AI
or
works created WITH a generative AI ?
Can we talk about works created by an AI
(entirely and autonomously) or are they
always works created by a human being
who gives instructions to the AI system?
How long will it be like this?
what level of autonomy do
these systems have?

better talk about
supervised AI vs unsupervised AI
MOMA, New York,
August 2023

An “anthropocentric” copyright law
The enlightening reflection by Roberto Caso:
Copyright and in particular moral rights (like other
personality rights) are anthropocentric. They were
developed with the human being in mind. Although
many copyright laws, including the Italian one, do not
define the founding concepts of author, creativity
(originality), expression (expressive form) and work,
there is no doubt that they were conceived in a
technological era that did’t know AI.
The adaptability of these concepts is relative.
R. Caso, Intelligenza artificiale e diritto d’autore, cap. 22 della
monografia La società della mercificazione e della sorveglianza:
dalla persona ai dati, Ledizioni, marzo 2021

a new revolution for copyright law:
rethink the idea of creativity itselft
While the digital revolution has led us to have to
rethink the concept of *copy/reproduction* and
to manage new ways of using content, the
arrival of generative AI systems forces us to
make an even greater effort: a radical
rethinking of the concept of *creativity*.

On March 10, 2023, the
US Copyright Office
published a document that
seeks to clarify the
possibility of protecting
with copyright works
created using generative
AI systems.
US Copyright Office takes a stand
It actually tells us things that we already knew and
that we could still deduce from the general principles
of copyright (i.e. that AI systems are a mere tool in
the hands of human beings). But it is still an
important milestone.

A question of mere responsibility?
Attempts to regulate the phenomenon [see the
EU Regulation currently awaiting approval]
seem aimed more than anything at clarifying
not so much the aspect of creativity/originality,
but the aspect of responsibility.
who is responsible for things
done *with/by* AI systems?

...or rather of transparency
and intellectual honesty
●
providers of AI systems will have to declare with
which data/works they have trained their systems
→ see draft of the EU regulation
●
users of AI systems must/should declare
when their creation has been generated
with an AI system
→ we leave the field of pure law
and enter more into that of ethics

Wait! It's not over yet!
An additional layer of rules is missing: the
terms of use of the various AI services.

Before going on, let me do a quick test...
How many of you regularly use chatGPT?

Before going on, let me do a quick test...
How many of you regularly use chatGPT?
...and how many of you have read
the terms of use at least once?

from OpenAI terms of use [link]
3(a) Your Content
You may provide input to the Services (“Input”), and receive
output generated and returned by the Services based on the
Input (“Output”). Input and Output are collectively “Content.”
As between the parties and to the extent permitted by
applicable law, you own all Input. Subject to your compliance
with these Terms, OpenAI hereby assigns to you all its right,
title and interest in and to Output. This means you can use
Content for any purpose, including commercial purposes such
as sale or publication, if you comply with these Terms. OpenAI
may use Content to provide and maintain the Services,
comply with applicable law, and enforce our policies.
You are responsible for Content, including for ensuring
that it does not violate any applicable law or these Terms.

from OpenAI terms of use [link]
3(b) Similarity of Content
Due to the nature of machine learning, Output may not
be unique across users and the Services may generate
the same or similar output for OpenAI or a third party.
For example, you may provide input to a model such as
“What color is the sky?” and receive output such as “The
sky is blue.” Other users may also ask similar questions
and receive the same response. Responses that are
requested by and generated for other users are
not considered your Content.

from OpenAI Sharing &
publication policy [link]
Content co-authored with the OpenAI API
Creators who wish to publish their first-party written content
(e.g., a book, compendium of short stories) created in part with
the OpenAI API are permitted to do so under the following
conditions:
●
The published content is attributed to your name or company.
●
The role of AI in formulating the content is clearly disclosed in a
way that no reader could possibly miss, and that a typical
reader would find sufficiently easy to understand.
●
Topics of the content do not violate OpenAI’s Content Policy or
Terms of Use, e.g., are not related to adult content, spam,
hateful content, content that incites violence, or other
uses that may cause social harm.
●
We kindly ask that you refrain from sharing outputs
that may offend others.

Grazie per l’attenzione
Slides rilasciate sotto licenza
Creative Commons Attribution – ShareAlike 4.0 International

orsù seguitemi!
di Simone Aliprandi
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https://twitter.com/simonealiprandi
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A new concept of creativity: intellectual property issues around generative AI (Univ.Bicocca, sett2023)

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