Robot eller människa, vad spelar det för roll? - En undersökning av kravet på mänskligt skapande inom upphovsrätten, i ljuset av kreativ artificiell intelligens

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: Artificial intelligence (AI) is a growing technological phenomenon that is predicted to, within the near future, be able to create creative works such as novels, artistic pictures, music, and the likes, equivalent in quality to the works of humans. As opposed to the works made by humans, AI-creations will not be protected by copyright, as copyright is limited to things made by humans. By studying the motives of copyright, the thesis researches why copyright is limited to only protecting human creations. In addition, the thesis poses the question if a limitation to human-made things, as it excludes the works of AI, is in line with the motives of copyright, or if the protection of copyright should be expanded to also include works made by AI. The thesis focuses mainly on the definition of the object of copyright through the concept of originality – the threshold for what is protected by copyright. As originality, partly through the EU-harmonized definition, has become synonymous with the work expressing the creator’s personality or individuality, AI-works are excluded from copyright protection, even though the quality of works by humans and AI are equal in merit. This raises the question if there is an inherent value to protecting the human-made even if it is indistinguishable from the work of AI? The natural rights arguments for copyright defend the protection of the human-made on the basis that the work is an extension of the human maker. Because the works of AI are not made by a physical person there are no grounds according to the natural rights argument for granting them copyright protection. However, the incentive theories that promote a cultural enrichment of society could support copyright for AI works. Although AI does not respond to monetary incentives, the human creators of the AI may. Given that AI-works is something that society desires (which several reports suggests it does) and that the creators of creative AI are not motivated to create and use creative AI without copyright protection for AI-works, a widening of copyright protection should be considered. The thesis also evaluates the options available to extend copyright protection to AI-works, partly using already existing extensions such as neighbouring rights and sui generis, partly through widening the concept of originality to not only incorporate the human-made. The thesis exemplifies that such widenings of copyright have precedent. The thesis concludes that if lack of copyright protection results in less creation and use of creative AI, despite it being desirable to society, copyright protection ought to be expanded. Such expansion ought to be a modification of the concept of originality, as originality today is built upon an obsolete assumption of creativity being something intrinsically human.

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