Course Details

MAIN ALRM - PROJECT PROPOSAL OF YEHOSHUA ODIASE

Lecturer: None

TABLE OF CONTENTS PAGES SUB-HEADINGS 2 RESEARCH TOPIC 2 – 4 INTRODUCTION 4 – 6 RESEARCH STATEMENT 6 – 7 DESCRIPTION OF PROBLEMS, ISSUES AND QUESTIONS 7 AIMS AND OBJECTIVES 7 – 8 THEORETICAL FRAMEWORK 8 – 9 RESEARCH METHODOLOGY 9 – 11 LITERATURE REVIEW 11 – 12 EXPECTED RESEARCH FINDING 12 EXISITING RESEARCH GAPS 12 CONTRIBUTION TO KNOWLEDGE 13 CONCLUSION RESEARCH TOPIC: THE RISE OF THE MACHINES: A RE-DEFINITION OF THE CONCEPTS OF AUTHOR AND AUTHORSHIP IN COPYRIGHT LAW. 1.1 INTRODUCTION Copyright is ordinarily defined as the exclusive right reserved to the owner of the copyrighted material to control the doing of any or all of the acts protected under the law in relation to the material. Who is the owner of the work is a question to be answered first, by reference to the author of the work. Whereas, ownership implicates property rights, the author of a work may not be the same person as the owner in all cases. An author is the person who created the work or who has made the arrangements for making the work possible. Most authors have concluded their definition of the concept of an author by stating that the author need not be a human person. This statement was hitherto understood to relate to only such works as a “corporation” may make the arrangements to make such as cinematograph films, sound recordings (excluding musical recordings) and broadcasts. However, with the advancement of technology, many colourful works coming under the category of literary, musical and artistic works have been and are being created by machines. The question therefore is whether these machines should be ascribed with authorship and consequently, ownership of copyright works. In carrying out this research, various definitions contained in different Conventions and Treaties such as the Berne Convention, the World Intellectual Property Organization Treaty, amongst others were considered, the Nigerian Copyright Act and case law in Nigeria were scrutinized for possible references and/or inferences of the possibility of a non-human author and of course, statutes and case law of other selected countries of the world including those having same legal history and tradition and others. The researcher also relied on the articles and writings of various scholars, writers and professors on the conceptualization of the concept of authorship. At the end of the research, it was discovered that there has so far in the history of Copyright law, not been a definition of authorship that completely uncovers its facets and possibilities. Also that with the advent of new frontiers and tools of creation of materials that are copyrightable and which tools engage little or no human input or contribution, there is a massive campaign for the redefinition of the concept to include or otherwise, exclude among others, Artificial Intelligence. Most authors oppose the idea of a non-human author for moral and economic reasons, but suffice it to say that the same theories are used by both protagonists and antagonists of the idea to drive home their points. At the end of the research, it was discovered that contrary to the views of some authors and writers, machines can be creative and works created by them can have a unique signature but the works created are a mix of learning and language from works of other authors and/or those already in the public domain. This research was therefore born out of a need to find a definition of authorship that satisfies both creation and creativity with an aim to finding a balance between works directly created by humans and those inspired by humans but expressed directly or indirectly through machines. 1.2 RESEARCH STATEMENT There are admittedly a legion of papers and articles on the topic of authorship and the conceptualization of machine involvement in creation of copyright works. Most of them argue against the notion of a machine-author without denying the reality that works have been created and are indeed being created by machines without being generated by humans and without contribution, stimulation of humans. Others acknowledge machine-creation and advocate machine-authorship on, as earlier indicated moral and economic grounds. This is the fault of existing research. This research work considers machines as employees or commissionees of the user who has paid significant amounts for acquisition of the programme to among other things create copyrigtable material. Without a doubt, machines have taken over a significant volume of the work-force and continue to do so. This writer stresses that a machine at least has to be switched and charged by the owner-user and that arrangement of the creative environment makes the machine an employee and the user the author and owner of all created works. Therefore, the research will answer a few salient questions:\ Research Question: Who is the author of machine created works? Sub-questions: 1. What is the relationship between machine created works and human interface? 2. How does the difference between Creation and Creativity influence authorship of machine created works? 3. Whether works created by Artificial Intelligence qualify as commissioned works and may be implied to belong to the user/employer/commissioner without an express agreement in writing? These questions will be answered in the course of the research. 1.3 DESCRIPTION OF THE PROBLEMS, ISSUES AND QUESTIONS OF AUTHORSHIP What is the Research About? This research work is geared towards re-defining the concept of authorship in copyright work, not with an aim to include or exclude Artificial Intelligence but with an aim to merge both by equally ascribing authorship and ownership of the created works to the machine and the user. This was carried out by first examining the thoughts and articulations of various scholars and writers with an aim to situate their findings within the Nigerian context. What Questions does this Research seek to Answer? This research does seek to answer the question what is authorship in the traditional form of “Who is an Author?” It answers the questions “Who Can Be an Author?” In answering this question, the researcher proposes that the scope of who can be an author as seen in the Nigerian Copyright Act needs to be expanded beyond citizens and corporations to include non-human persons and with a view to revert all ownership rights to the human user or controller. What does the Research Seek to Communicate? According to Versteeg, the most significant qualification for becoming an “author” is the act of communication. This research seeks to communicate the idea that the debate on non-human authorship of copyright material can be resolved by embracing the baseline – computers can create and consequently may be authors but that whatever they create is a product of their employment or commissioning to so create and the employer/commissioner/user becomes the owner of the work. 1.4 AIMS AND OBJECTIVES 1. To clarify as much as practicable, the definition of authorship in Copyright Law. 2. To provide an inclusive definition of Authorship that embraces machines and other non-human persons as authors. 3. To provide a basis to divest said non-human authors of copyright by necessary implication of employment. 1.5 THEORETICAL FRAMEWORK Some authors draw a distinction between use of computers as intelligent agents through which intelligent works (intellectual property) are created on the one hand and autonomous creation of intelligent works by computers. This distinction becomes increasingly finite as computers take over the modern age. Most of the research and literature on the subject are human-centred. Thus, this very easily may be regarded as the theoretical framework on which the literature and knowledge on this topic is built – Humanism. Other relevant conceptual theories to fully grasping this topic include – economic theory, moralistic theory, Creativity theory, Personality theory among others. The economic theory argues that human authors need to be incentivized by reward for their creativity without being subjected to competition with machines. The moralistic theory is based on the idea that human authors need to be acknowledged for their work. The creativity theory is founded on the notion that machines can create but are not necessarily creative. The personality theory is born out of the view that creativity emanates from an intention to create and that only a human person can nurture such intention and consequently imbue their personality into their work. At the end of my research, I propose that non-humans may be ascribed with authorship but for the transient purpose of transferring same to their human employer or user. 1.6 RESEARCH METHODOLOGY The doctrinal research methodology is research in the black letter of the law, and inquires into how the law is and how it has developed by the application of the power of reasoning (deductive or inductive) in analyzing the law as may be found in primary legal sources such as the constitution, statutes, case law, legal rules, etc, to aid in the further development of legal theories. The basic tool for Doctrinal Legal Research is the source (constitution, statute, case law, periodicals, etc), the process itself involves: selection of a Statute book, identification of issues requiring further research, determination of the applicable law, matching issues with applicable law and conclusion. The method is the use of deductive reasoning to trace the application of the general rule to specific cases and analyses. This research will be conducted by use of the doctrinal research methodology. The research will consider the definitions of authorship from antiquity and trace its development through the generations through the lenses of learned scholars and writers. Concurrently, thorough analyses of the definitions will be undertaken with a view to cast the light on the faults and loopholes so far inherent in the available definitions. This writer will then rummage the rubbles of copyright law to birth the notion of machine-author-employee. It promises to be a thorough and detailed research work. 1.7 LITERATURE REVIEW A few definitions of author and authorship will be considered herein. Asein relying on the United States Supreme Court decision in Community for Creative Non-Violence v. Reid, stated that the author of a work may be described as the person who created the work or made the production of the work possible. He added that the author is very often, but not necessarily, a human person. According to Laura A. Heymann, either of the key terms, "Authors" and “Writings” could be seen as generative of the other: An "Author" could be defined as someone who creates a "Writing," or a “Writing” could be defined as the work of an “Author.” This definition would be concise if all works of copyright are writings. This is clearly not the case. OPPONENTS OF MACHINE AS AUTHOR Versteeg posits that a more deliberate scrutiny of the provisions of the Act would suggest that the most significant qualification for becoming an “author” is the act of communication. Herein lies Versteeg’s redefinition of the concept. According to him, at the most elementary level, a copyright author is a communicator. In his estimation therefore, to qualify as an "author" for purposes of protection under the Copyright Act, a creator of copyrightable material must ‘communicate original expression either directly by fixing the expression in a tangible medium oneself or indirectly by communicating it to another who fixes the expression in a tangible medium of expression.’ More recently, Gervais, PhD, describes computer-created works as proto-creative in that they do not result from human creative choices. He argues that creative choices are the sine qua non of copyright protection and that said proto-creative works “look like” creative works and, therefore may be prima facie considered copyrightable subject matter. He based his definition on the work of Ginsburg & Budiardjo wherein the authors concluded that a computer-created work is authorless. Ginsburg, had earlier in 2018 opined that the position should remain the same in that the notion of an author and authorship must remain human-centred. PROPONENTS OF MACHINE AS AUTHOR Ahuja, makes a sui generis proposition. According to him, the machine-author means such a system which may have lesser protection in terms of copyright duration and other things and that duration of such works may be set as low as 5 to 10 years. The rationale for the proposal is based on the argument that by providing protection for shorter duration, the new model of AI copyright protection would give rise to significantly less interference with the existing norms of copyright law. There would be lesser potential for AI authors to overthrow human authors in creative markets, as the former would soon lose their copyrights. 1.8 EXPECTED RESEARCH FINDINGS At the end of the end of the research, the writer expects to find as has been earlier indicated that the baseline, which is that machines can create will be established. The area of discord in this topic therefore is not whether machines can create independent of human interference or contribution; it is whether even though they can so create, should their works be protected and they accorded with the status of as authors. The loophole in the argument of opponents of machine-author is that they accept that machines can create but deny them the status without cogent justification. This researcher keeps to that finding that machines can indeed create and goes further to accord them with the revered but transient status of author for the sole objective of deemed transfer of machine-created works to the user who is considered for purposes of authorship and ownership of the works created to be the machine’s employer. 1.9 EXISITING RESEARCH GAPS Much work has undoubtedly been put into the research of who can be an author by many erudite scholars and writers as adumbrated above (under literature review). However, the one theme that runs across most of the research is the fear of the authors to acknowledge the authorship status of the machine. The works which oppose the authorship machines do not seem to base it on tenable basis except the theoretical justifications of copyright protection. At the same time, the notion of machine-authorship is without basis in a human world wherein machines remain the dependents of humans. 1.10 CONTRIBUTION TO KNOWLEDGE The contribution of this researcher to existing knowledge is simply one: Acknowledgement of the factual reality of machine authorship but divest it of same and confer it on the user/employer for a limited duration. It would also defy the core principles of copyright protection of any “Coonan” with a machine can become an author and compete with authors that put in significant labour, skill or judgement to create their own works. Hence, it is also suggested that machine-generated or solely created works should belong to the user as author and owner for a period of only 5 years. 1.11 CONCLUSION Copyright is the exclusive right to control the doing any or all of the acts listed in section 6 of the Act. The person who is the owner of the copyright in a work would be largely dependent on who is the author of the said work. Defining an author of copyright work has been simply impossible. It is practically impossible to raise a definition that captures the essence of who is an author. Suffice it to say that an author is a person who creates and such a person need not be human. The question that this work seeks to answer therefore is not only whether such non-human person should include a machine – as it will be shown through available literature that this has already been established especially considering the registration of Artificial Intelligence by both India and South Africa as authors, but also and especially whether such works should enjoy protection. However, considering that the notion of a machine-author is not supportable by the theoretical justifications of copyright protection, this research will propose the deemed transfer of machine-created works to their users as authors and owners based on the presumption of employment/commissioning between machine and user.