Forward Thinking or Right on Time: A Proposal to Recognize Authorship and Inventorship to Artificial Intelligence

• Author: Laetitia Coguic
• Position: IIT Chicago-Kent College of Law
• Pages: 223-247

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

For their comments and suggestions I would like to thank Professor Lee and Professor

Wang and all my classmates of the 2020 LL.M International Intellectual Property Law

class.

forWard tHinKinG or

riGHt on tiME?

A ProPosAl to recognize AuthorshiP And

inventorshiP to ArtificiAl intelligence

Laëtitia Coguic

IIT Chicago-Kent College of Law

E-mail: lcoguic@kentlaw.iit.edu

As of today, Articial Intelligence (“AI”) is not globally accepted as potentially an author

or inventor of what it has been asked to create. Most of the world’s jurisdictions are de-

manding for a “human being” as a condition sine qua none of the capability of being an

author or inventor of something. But, as we see in this article, this does not result from

the black letter of the law but from interpretation, whether it is judges or the doctrine

that interprets the law. Hence, as of today, whether it is in the E.U. or in Europe, there

is nothing preventing AI in the black letter of the law from being recognized as inventor

and author of what it created. You should, however, be aware that all these talks are

for futuristic AIs. AIs that will be able to create on their own, without the involvement

of humans asking for tasks. ose AIs do not exist yet. ose AIs are what we will call

“strong AI.” And we can be sure that they will exist one day. In this article, we propose

that AIs enjoy a legal personhood. A new personhood that does not gives « human rights

» but that will allow us to set the cadre juridique that surrounded AI and that is really

necessary. To what extend is it? So we can predict who will get the economic rights of

what an AI created, who will be responsible for damages caused by what the AI invent-

ed. All situations should be thought about now before it is already every where and

before people really need to answer those questions.

Keywords: Law and Technology, Legal Personality, e Right to Property, Intelletual

Property Rights, Comparative Legal Analysis.

VIII Indonesian Journal of International & Comparative Law 223-47 (July 2021)

224

Coguic

INTRODUCTION

Does thee Sophia ring a bell to you? She can draw, answer questions

and interact with humans and she actually learns from those interac-

tions. She was “activated” in 2015 in Hong Kong. And guess what? In

2017 she got the Saudi citizenship which made her the world’s rst ro-

bot citizen. Many people see AIs as “our biggest existential threat.” But

why is that so? e biggest threat we may live is our inability to adapt

our systems to be in adequation with the evolution. Just as people went

to revolution when they believed it was time for a change, it is time

to take evolution and changes regarding AI. We live in a world where

machines are part of our daily lives, where machines are smarter than

ever, intelligent, autonomous, creative and already have a “self-con-

sciousness.”1 ey are capable of creating like humans do: paintings,

making music or inventing things that you would not be able to tell it

is not made out of a human mind or hands, and yet, they will not stop

evolving. Quite the contrary. erefore, shouldn’t they be able to be

recognized as creator or inventor of those unique or new things they

make? e issue remains the same whether we take it from a patent

law approach for inventorship or from a copyright law approach for

authorship. Indeed, the work they create would be copyrightable or

patentable if it was made by humans being.

Currently, there is a global consensus that only humans can

be recognized as an author or an inventor. But it is not expressly

recognized in the statutes of many states. Even if those states do not

expressly provide the term “human” in their statute, many scholars

argue that it is implicit whether it is in the Berne Convention or in

many national laws. For instance, the U.S. Patent Act provides the

term “individual” and scholars believe that it was meant to be limited

to natural person only. Same for the U.S. Copyright Act. However, if

Congress really intended to limit IP to natural person, it was able to

clearly specify so. Under the European patent law and copyright law, it

is the same implicit approach. It has been the European Court of Justice

that interpreted that copyright attribution only belongs to humans and

1. John Marko, When A.I. Matures, It May Call Jürgen Schimdhuber ‘Dad’, N.Y.

T (Nov. 27, 2016), https://www.nytimes.com/2016/11/27/technology/

articial-intelligence-pioneer-jurgen-schmidhuber-overlooked.html.