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Washington Journal of Law, Technology & Arts

Abstract

This article discusses contemporary problems related to Artificial Intelligence (AI), law and the visual arts. It suggests that the fallacies of copyright law are already visible in legal conundrums raised by AI in the creative sector. These include, for instance, the lack of uniformity in relation to creations’ copyrightability, the massive scale of copyright infringement affecting visual artists and the creative industry, and the difficulties in implementing media regulation and cyber-regulation. The deeply cherished ‘human authorship’ criterion that was sustained recently by a US Federal Appeals Court in Thaler, in particular, is a short-term solution to the legal challenges raised in the field of intellectual property law, vis-à-vis the rapid developments in AI systems. Further, the article discusses the limited linkages between IP law and human rights law (including the views of universal and regional human rights bodies), as well as the limited effect of companies’ regulation in resolving the problem of copyright infringement. This article therefore submits that alternative solutions should urgently be sought to address these legal challenges in different spheres of law, and most importantly, human rights law. An example is the incorporation in the copyright discourse of positive state obligations accompanying the rights of authors to benefit from their intellectual and artistic creations (article 15 of the ICESCR), in conjunction with due diligence obligations in relation to AI companies as non-state actors. This article therefore suggests that international human rights bodies should have a greater voice in the role of science and AI technologies around the world, including in relation to authors’ rights. It concludes that a human-rights based approach to IP rights could also increase responsible conduct by creators who use AI tools in their art, since the freedom of expression – and artistic freedom – protected by human rights law carries with it ‘duties and responsibilities’.

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