Artificial intelligence (AI) has been defined as a “computer program designed to perform certain operations that are considered to be characteristic of human intelligence, such as self-learning”. It is an application on our electronic devices that has the ability to “think” on its own and, within the parameters established for it, make decisions and generate content without having received direct power from humans.
Recently, the “ChatGPT” web page generated great interest in society, because the human user can enter a short description of what he wants the application to write and it is capable of generating a historical review, a story, a poem; in short, any creation by the written medium that a human being could make (with a limitation, due to computational issues, of 1,500 words). Likewise, we have seen on social networks how AI produces images that, when presented to experts, conclude that they must have been generated by human hands, when this is not the case.
From an ethical point of view, the use of AI will raise questions and dilemmas in the coming years. However, for legal purposes, a series of questions are being generated about the product and, particularly, about who owns a creation made by AI.
Our intellectual property system is founded on the assumption that a creation is the property of the person (a human being or a company) who created it. The idea is to encourage creation and innovation through this property, and in the case of commercial companies, it is generally established that employees in charge of it owe them their creations.
In the case of AI, it produces a creation when a human being gives it a command: write me a fairy tale; draw me a picture of a waterfall; crack this code. However, the person who enters these commands has no other input into the final element being generated. So, does she own the creation?
If the person entering the command is not the owner, is the person who prepared the source code that uses that AI? What happens in the case that multiple people have contributed to write the source code or different parts of it for that AI? Would they own parts of the creation, but not the whole?
Another argument is whether the people who provide the processing services (AI source code is just that and has to be processed to produce an output) are the owners of these products. In many cases these are outsourced services and do not “create” anything new.
In short, the Law currently does not have a simple or clear answer regarding the ownership of AI creations. The only thing we can be sure of is that this “brave new world” – to borrow the title of Aldous Huxley’s work – this issue will be the subject of litigation and possibly legislative action in the short term.