Carlos Enrique Castillo G.
ccastillo@romeropineda.com

The subject deals with the creation of works by equipment, machines, devices or instruments in which artificial intelligence is applied and the protection or not of such works, under the protection of Copyright.

The Intellectual Property law, in general, arises from the need to provide legal protection to the creations of the intellect, starting from this, let us first define what the intellect is. I cannot identify where I got this information, which is repeated and repeated, but the intellect is a faculty of the mind that allows learning, understanding, reasoning, making decisions and forming a specific idea of ​​reality. It is an inherent and exclusive factor of the human condition. On the other hand, it is worth mentioning that the manifestation of the intellect is creativity, that faculty, capacity or ability of the human being to invent, to generate something new or create new things; what has allowed the human being to transform his environment, defy the forces of nature, face his original limitations, and place him on the path of his own evolution. In this way, it is established that since the intellect is a faculty of the human being, it is precisely the latter who has developed or created artificial intelligence.

Secondly, a work is for Copyright, paraphrasing the distinguished Dr. Delia Lipszyc, the personal expression of the intelligence or talent of the intellectual creator, who develops a thought that manifests or materializes in a perceptible form, under parameters of originality, creativity and good faith, and for this reason it is eligible for legal protection.

In the case of works created by some device controlled by artificial intelligence, this is where the issue of who owns the copyright in respect of such works arises. On one occasion, with a group of students, I used an example to respond to a similar situation, like this: if a novelist writes his work, on a computer or computer with a certain program, what rights does the novelist enjoy and what rights does the owner of the computer program? The first responses were quite interesting, from disqualifying the owner of the program, placing the computer and the program as mere tools or instruments, to claiming to recognize the owner of the program as a co-author. By insisting and promoting the debate based on elementary concepts such as those mentioned above, the unanimous conclusion was that the only owner regarding the work is the author-creator of it, through his intellect, without taking into account the tools of those that he attends; the same happens with the painter's brush, the sculptor's chisel, the photographer's camera, the draughtsman's pencil, the musician's musical instrument, etc.

Then, in a specific case, there was a debate regarding the ownership of a satellite photograph, whether the owner should be the provider of the satellite service and owner of the photography equipment, or the institution that contracted said service? The response and solution to the case was unanimous, the owner of the photograph is and should be so, the institution that contracted the service, -commissioned work-.

Well, in the case of works created by artificial intelligence, the situation to be determined is whether the person or programmer who created the algorithm that develops the activity from which the work arises should be considered as its author, or Well, if artificial intelligence (machine), should be considered as the creator and copyright holder of the resulting work.

It should be taken into account that the main objective of artificial intelligence, according to Wikipedia, is to replicate cognitive processes in machines, that is, it contracts to create machines that imitate or replicate human intelligence, to perform certain tasks and at the same time, These machines can improve their performance, according to the information they collect. However, this creative effort is not new, if we take into account that the first automata (devices with their own movement) date from approximately 1,500 BC, capable of performing common tasks for humans, or to facilitate them. daily tasks, repetitive tasks that could be replicated with some complex system (usually mechanical), and this is how machines capable of repeating the same tasks that man performed began to be created.

For many, the author of the work resulting from the application of artificial intelligence is the natural person who has created or developed a program or algorithm that replicates human activity, which means that artificial intelligence is not considered the author of works. However, others consider that artificial intelligence, creator of a certain work, should be recognized as the author. The latter is the result of how they define artificial intelligence, -the ability of a system to correctly interpret data or information, and thus learn and use that knowledge to achieve specific tasks and goals-, in itself, this highly qualified intelligence as artificial it is a branch of computer science, in charge of studying computational models capable of carrying out activities typical of human beings. However, in such a concept it is not taken into account that the starting point is that artificial intelligence was not originally created out of nothing, but rather through human intervention, by a determined and specific human being.

To date, intelligent systems capable of writing their own programs have been developed, thus creating works that arise from these new programs. What requires that the initial question be reconsidered, who owns the ownership or copyright, with respect to the works thus created?, to artificial intelligence? Would this represent a jump from the natural person, to the social person to the electronic person or digital person?, recognizing the legal personality of artificial intelligence. The foregoing would also require the reconsideration of concepts such as the inherent moral rights and the material or economic rights derived from the work.

Maintaining the pro-human position raises questions in certain forums regarding a probable negative effect on innovation and creativity, by discouraging research and development in this area. Position that I do not share. From a historical perspective, I have already mentioned that the creation of automata dates back to approximately 1,500 BC, and the accelerated development of new technologies has not been affected by the recognition or not of intellectual property rights in favor of machines, it has been the opposite.

Nor do I share the fear of other sectors, insofar as recognizing machines, equipment or devices as authors of works could have unforeseeable or negative consequences, especially in the face of possible or hypothetical conflicts between artificial intelligence and the programmer/human who created it. Who would represent artificial intelligence, in the face of a conflict against the programmer? How would a power of attorney granted by artificial intelligence be granted and legalized? Would an artificial intelligence device resolve it? How would the failure given by an artificial intelligence program?

Nor do I share the fear of other sectors, insofar as recognizing machines, equipment or devices as authors of works could have unforeseeable or negative consequences, especially in the face of possible or hypothetical conflicts between artificial intelligence and the programmer/human who created it. Who would represent artificial intelligence, in the face of a conflict against the programmer? How would a power of attorney granted by artificial intelligence be granted and legalized? Would an artificial intelligence device resolve it? How would the failure given by an artificial intelligence program?