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Would you ever want to see digitally, Istanbul waking up to a
rainy and gloomy day, an alien race that came to visit our species
from a galaxy billion light year away, New York City under the
post-apocalyptic acid rain, a peanut with a micro-scale
civilization on it, the realistic portraits of people who actually
never existed and no matter how far you go in the horizons of your
imagination, a concrete and visual reflection of all your ideas? In
fact, we are talking about images that is successful enough to make
you want to congratulate the artist deep down inside. Some of these
images were even featured on the covers of prestigious magazines
and prints such as The Economist and Cosmopolitan and one of them
even won an award in the fine art competition of the Colorado State
Fair in the USA. However, we need to point out that, contrary to
all your expectations, the creators of these images are not humans
but artificial intelligence programs!
When we talk about the existence of artificial intelligence
algorithms that can create a visual response to every meaningful or
absurd idea that sparks in your mind, we can easily guess that you
will find it scary and fascinating at the same time. From a visual
arts perspective, these artificial intelligence programs represent
a very important reflection of the point reached by machine
learning systems designed on artificial neural networks.
Furthermore, all you have to do is insert the idea of “a
little girl watching the world from above the clouds” into an
artificial intelligence program such as DALL-E, Stable Diffusion,
Craiyon, Midjourney, which create images from textual descriptions,
and then sit back and wait for the visual results that will be
produced by the AI in seconds.
Although we think that these artificial intelligence algorithms,
which create interesting images by using only words and word lists
that you entered as a prompt, will help you to have a wonderful
time, this is not their only function. Because such artificial
intelligence programs offer very useful and inspiring opportunities
for artists, illustrators, designers and many more. In this
context, as in every situation where artificial intelligence
touches our lives, creates benefits, and carries a risk of material
or moral damage, all eyes are on the matter regarding the legal
personality of AI. Therefore, debates on whether artificial
intelligence can be an owner of the intellectual and artistic works
and whether these images created by AI can be qualified as an
“intellectual and artistic work” come to the fore.
Therefore, it will be useful to examine some of the matters that
may come to mind from the perspective of positive law.
IS IT POSSIBLE TO QUALIFY AN IMAGE CREATED BY AI AS AN
“INTELLECTUAL AND ARTISTIC WORK” AND MAKE THIS IMAGE
BENEFIT FROM THE LEGAL PROTECTION PROVIDED FOR THE
“WORKS”?
In order for an intellectual product to benefit from the legal
protection provided to works, it must carry the qualification of a
“work”. In this regard, certain conditions for being
considered as a “work” are stipulated in Law on
Intellectual and Artistic Works No. 5846 (referred to as
“FSEK” or “Law”) and all of these conditions
must be fulfilled.
First of all, the created intellectual product must fall into
one of the categories of “works”, which are counted as a
limited number (“numerus clausus”) in the Law. This
condition is referred to as the “objective
condition” in the doctrine. FSEK lists the categories
of work as “literary and scientific works”, “musical
works”, “works of fine arts” and
“cinematographic works”. In addition to these four
categories, works created by benefiting from another existing work,
which are not completely independent from the original work, but
also carry the originality of its artist, are described as
“adaptations”. There is no hesitation that the images
created by artificial intelligence will be considered in the
category of “works of fine arts”. Intellectual
productions that can be counted in the category of works of fine
art in accordance with Article 4 of the FSEK are specified as
examples, and pursuant to this article “all kinds of paintings
and graphic works that have aesthetic value are works of fine
art”.
Another condition in order for being counted as a work is the
“forming condition” and it means that
the intellectual product must take shape, come into existence and
become perceptible by people. In this context, for the formation,
it is enough for a work to take place only once and this formation
does not have to be continuous. With this condition, it is meant to
be explained that a mere thought and idea that has not actually
been eventualized cannot benefit from the legal protection
envisaged under the FSEK. It is seen that the forming condition has
been fulfilled in terms of AI-created images. The aforementioned
digital images produced with AI programs are seen and perceived by
people, uploaded to their computers, even used as paintings and
magazine covers and gain existence with these ways.
The last condition for being counted as a work is “having
the characteristics of the author,” and this condition is
expressed as “subjective condition” in
the doctrine. As a matter of fact, in paragraph “a” of
Article 1/B of FSEK, the work is defined as “the intellectual
product that carries the characteristics of its author”.
Although “carrying the characteristics of its author”
sounds indefinite and subjective, it means that the relevant
product must reflect its author’s creative side, originality,
innovation, style and expression. Therefore, it becomes an
essential condition for product to reflect the characteristics of
the author to be considered as “work”. However, the
subjective condition does not mean that the work should be
completely unique and one of a kind and not have any reflections
from other author’s works. Because, while creating their
artistic identities and styles, there is huge a possibility that
the authors to be influenced by other works they have seen, read
and listened to before, and they unconsciously carry parts of them.
The important thing is that this influence should not be an
imitation, duplication or copying. The condition regarding the
“characteristics” needs to be evaluated separately for
each concrete event and the type of work. In a possible dispute
brought before the court, expert examination is often required for
the analysis of whether the relevant intellectual product carries
the characteristics of the author.
In this context, whether the subjective condition is fulfilled
in terms of images created by artificial intelligence is the main
point to be examined. If we accept that the subjective condition is
fulfilled because it has the characteristics of its owner, we will
conclude that the aforementioned type of images created with
artificial intelligence can be considered as “works” and
in this context, they will benefit from the legal protection given
to the works. For now, we leave aside the debate whether artificial
intelligence can be the author of a work and focus on whether
people fulfill the condition of “carrying the characteristics
of the author” in terms of images created AI.
In the doctrine, a dual distinction is made between
“computer-generated” and “computer-aided
products” in terms of evaluating intellectual products created
by computer as works. In this context, intellectual products that
are purely computer-generated are not accepted as works because
they lack human effort and creativity, while those that are
computer-aided can be qualified as works on the condition that they
carry the characteristics of the author. However, although this
dual distinction made in the doctrine is meaningful for classical
computers, unfortunately it becomes dysfunctional for artificial
intelligence, which becomes more autonomous day by day, develops
itself with new data and whose visual outputs cannot be predicted
beforehand.
As a matter of fact, with a simple example, when we give the
idea of “a little girl watching the world from above the
clouds” for the second time to the AI bot named Midjourney,
the image it creates is different from the first one. It is seen
that in the course of time, the visual outputs in Midjourney’s
database have increased with each command given by the users and
Midjourney started to interpret the same commands differently since
it changed and developed itself with the new data it pulls over the
internet. In this regard, no matter how detailed the command is
written, the image that will be generated by Midjourney cannot be
fully predicted by the user. With each passing second, Midjourney
can perceive the words “cloud” and “little
girl” differently and associate them with each other in
different ways.
Therefore, we can say that the condition of “carrying the
characteristics of the author” is not fulfilled in the images
created with this kind of AI which transforms words and sentences
into images, and therefore they cannot be qualified as works. It is
not possible to fully predict or control the visual that will be
created with artificial intelligence, neither by the programmer nor
the user, and in this respect, it cannot be said that it reflects
the unique style, creativity, and innovation of the author. In this
direction, we can say that these images that do not meet the
conditions of being a “work” cannot benefit from the
legal protection provided to the works within the scope of
FSEK.
SO WHO CAN BE THE “AUTHOR” OF A VISUAL OUTPUT CREATED
BY ARTIFICIAL INTELLIGENCE PROGRAMS?
First of all, we should state that, according to FSEK article
8/1, “the author of a work is the one who created it”. In
the doctrine and Supreme Court decisions, it is accepted that the
author of a work can only be a real person and legal persons cannot
be the author of a work. In this respect, legal persons can only
have financial rights related to the work.
From the moment the work is created, the person who created the
work gains the title of “author” without the need for any
additional legal action and he/she becomes the owner of the
financial and moral rights granted to the owner of the work under
the FSEK. However, as it can be understood, before evaluating who
is the author of a work, there must be a “work” that has
fulfilled all the conditions of its legal definition. In other
words, it is not possible to discuss the authorship of a work
without an actual work.
We have said that images created by AI programs such as
Midjourney, DALL-E, Stable Diffusion, and Craiyon cannot be
qualified as works because they are not capable of fulfilling the
subjective condition. However, even if we produce works that have
the characteristics of its author by using a hypothetical AI
program with different qualifications from those counted above, the
issue of how to determine the authorship of the intellectual
product is still quite complicated. Many actors, such as those who
develop artificial intelligence software, those who invest in
artificial intelligence technology, and users, play a role in the
creation of the intellectual product. But which of these people
should be recognized as the author of the intellectual product?
In this context, first of all, it can be argued that the
products created with artificial intelligence should belong to the
public. However, this suggestion comes with important certain
disadvantages. Because in the doctrine, it is accepted that the
main purpose of providing legal protection to intellectual property
products is to support the development of science and art. Within
the scope of this argument, companies that produce and develop
artificial intelligence technologies will not be able to profit
from the intellectual property products created by AI and therefore
they will not want to invest in these technologies. However, in
recent years, so many successful images created with AI programs
and it has been paid so much for these images. For instance, the
portrait of Edmond Belamy, created by using an artificial
intelligence technology known as GAN (Generative Adversarial
Networks), was sold at Christie’s auction house for 432,000
dollars. In the event that the ideas and works created by AI belong
to the public, it seems that it will not be possible for humans to
compete with artificial intelligence technology, since everyone can
use it without making a payment.
As another suggestion, it can be argued that the software
developer of the AI should be entitled. Since the AI is actually a
software in its essence, it is possible to protect AI as a work
within the scope of the relevant law by placing it in the
“computer program” category stipulated in Article 2/1 of
the FSEK. However we should point out that, protecting the AI
itself and protecting the intellectual products created by that AI
are two different things. If we consider AI as a computer program
and consider it in the category of literary and scientific works,
the author will be those who develop artificial intelligence
software. However, we cannot say that those who have rights on
artificial intelligence as its author also have rights on the
intellectual products created by AI. Because unlike traditional
software, artificial intelligence can renew and develop itself
without the intervention of the software developer, and can produce
unpredictable intellectual products.
In addition to these suggestions, the discussion of granting
legal personality to artificial intelligences, which show a
completely autonomous structure and can create visual outputs
without the intervention of anyone else, may come to the fore. If
we give legal personality to fully autonomous artificial
intelligence, even the artificial intelligence itself can claim
authorship on the images that is qualified as work. However, if we
give AI a legal personality and make it the subject of rights and
obligations, some problems related to the authorship of AI
inevitably come with it. In case of violation of intellectual
rights, it is necessary to clarify how the AI will be a party to a
possible lawsuit and how the demands will be met. On the other
hand, the matters such as how AI will be able to transfer its
rights arising from authorship and how it will be able to conclude
contracts regarding the transfer of rights needs to be clarified.
Because if we accept that AI is the author of the work, we will
conclude that the relevant intellectual product cannot be used
unless the AI transfers its rights regarding the work.
With the technological developments of our age, the issue of the
legal status of artificial intelligence will inevitably be on the
agenda and will confront us with the necessity of answering
relevant questions.
For now, we will witness with great curiosity how artificial
intelligence technology can affect people’s perception
regarding the concept of art, and how it will change art’s
definition.
As stated by Richard Lloyd: “There will be human art, there
will be artificial intelligence art, but there will also be a
hybrid. I think human artists will be working side by side with
this algorithm and creating hybrid art. It’s just the beginning
and it’s so fascinating what is going to be created”.
If you are wondering how the idea of “a little girl
watching the world from above the clouds” is interpreted by
the AI bot named Midjourney after you complete reading this
article, you can see her below. She continues to watch the world of
humans as if saying that in the near future designed by technology,
artificial intelligence will take its place in the art market as a
very inspiring actor.
* This article has been originally published on Harvard Business
Review Türkiye on November 10, 2022. Please click here for the original article in
Turkish.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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