TARCISIO QUEIROZ CERQUEIRA
ADVOGADO/ATTORNEY IN BRAZIL
LEGAL ADVISER ON SOFTWARE AFFAIRS
www.tarcisio.adv.br
tarcisio@tarcisio.adv.br
"More than iron, more than lead, more than gold I need electricity.
I need it more than I need lamb, or pork or lettuce or cucumber.
I need it for my dreams."
Night sky and fields of black
A flat cracked surface and a building
She reflects an image in a glass
She does not see, she does not watch."
As long as our concern was only with conventional computer systems, i.e., systems which perform standard input-process-output tasks, it was not a problem to define rightholders of computer generated works, or computer output: unless prevented by contract, the authorized person who uses the system, that is the user, can normally be considered the owner of the generated product, whatever it might be. There is no difficulty in assigning authorship when a writer uses a conventional wordprocessor loaded in a conventional computer to write his/her books.
However, it is different when we consider certain more complex kinds of systems, where computers are used not only as a tool , i.e., to store enormous banks of information, or because they process information incredibly fast, or because they are portable. I have in mind, here, certain sorts of systems where the system is not only a mere tool as it has traditionally been regarded, but is more than a tool, being rather a member of the crew, and perhaps even more than a member, a controller, a supervisor, a decision maker, in certain cases. In these cases, where the system is actually responsible for the work, and assuming it were a copyrightable work, it becomes very dificult to define who is the author, and who owns copyright .
Complex systems are systems such as artificial intelligence systems, including neural networks, when machines generate knowledge; its performance can no longer be defined simply as a standard input-process-output task, and the products generated by those machines may have a minimal involvement from a human being and a massive contribution from the system itself. In these systems questions relating to the ownership and the authorship become a difficult issue, not to mention other related areas of potential contention such as moral rights.
Complex systems are also systems which generate complex outputs, such as audio-visual outputs, which are very difficult to properly protect .
We have to be careful not to confuse ownership of computer generated works with responsibility for computer generated works in accordance with previous specifications. When someone develops a computer program he/she becomes responsible for the performance of that program in accordance with initial/contractual specifications. Computer generated works have to be generated in accordance with technical specifications. This has nothing to do with authorship of computer generated works. Authorship can be transferred.
It is more or less (un)decided that products generated by computers belong to the user , to the programmer , or, at least to someone whose identity could be established by previous contract. This does not mean, however, that the owner of a computer generated output is the one responsible for its integrity, or its perfection in accordance with the specifications of the program. If a computer product is generated wrongly, that is with imperfection or errors caused by programming conceptions, the responsible person is the person, or group of people (or company), who developed the program.
Therefore, if the developer is the one liable in cases of defective software, which have caused injury to a consumer's person or property - or when there are economic losses - he certainly deserves to be considered one of the authors.
It is very easy to attribute copyright of a book which a single writer has produced; it is also not difficult when a group of writers has collaborated in the production of a book.
However, it is really complicated when we have to apportion copyright between a large number of people who have been working concurrently on different stages of a project - in various projects. We may have to face situations where no author can be defined. In some cases there is no particular human being who can be definitely pointed as an author .
Professor Pamela Samuelson states five allocation possibilities, in terms of ownership rights of computer generated works: "... to the computer, to the user, to the author of the generator program, to both jointly, or to no one".
She also comments - which I think is a complicating factor - that when speaking about computer-generated works, the reference is made "... not only to the hardware of the computer, but also to the hierarchy of programs - microcode, operating systems programs, and assisting application software - that work together to generate output".
In cases of computer generated works, both the programmer and the user do their work in the knowledge that their contributions have to work together, with the intention of creating a finished work. From this point of view authorship should be given jointly to the programmer and the user .
Thomas Dreier reports that "... So far, only the United Kingdom has adopted a special provision on computer generated works in its Copyright, Patents and Designs Act 1988 . ... The British provision grants copyright to works even if 'there is no human author', and assigns copyright to 'the person by whom the arrangements necessary for the creation of the work are undertaken'" .
In its memorandum prepared in 1990 for the committee of experts on Model Provisions for Legislation in the Field of Copyright, the World Intellectual Property Organization - WIPO commented, in connection with the British provision , that: "... The 'computer-generated works' as defined in the said Act of the United Kingdom do not seem to be covered by the notion of literary and artistic works, under the Berne Convention. Indeed the British solution runs counter to the very purpose of the Berne Convention, which - also according to its preamble - is to protect the rights of authors in their literary and artistic works and not mere investors".
The Green Paper in its chapter on "Computer-generated programs" accepts the idea of a copyright on computer generated works, where there are no authors, in which copyright belongs to none, when it is stated that "the question then arises as to who, if anyone, owns the copyright in the program that finally results from the process: those who used the computer, those who programmed it, the owner of the computer or conceivably all of these".
Colin Tapper comments that the absence of a clear definition on computer-generated works, in the EC software directive, give raise to some ambiguity when courts of justice have to deal with the problem. This aspect could be agravated because of the requirement found in Article 1.3 of the directive, which establishes that a program is to be protected only "...if it is original in the sense it is the author's own intellectual creation" . He states that "... It is arguable that this was intended to eliminate computer-generated programs entirely from the scope of protection. It is, however, far from self-evident how this condition will be interpreted in relation to works in some sense generated by the operation of computer programs".
The problem of allocating rights to the computer itself was the subject of a paper presented by Ashok Bhojwani in the "WIPO Worldwide Symposium on the Intellectual Property aspects of Artificial Intelligence" , when he considered the question of human rights and machine rights and raised issues such as "...What do we protect? Will an AI system withhold its creativity, if it is not given the right reward? What is protectable? May an AI system use all kinds of intellectual property freely? If not, how do you prevent such use?" .
The Register of Copyrights in the United States, in 1965 , had no satisfactory answer to the difficult question of "... would computer-generated works have a 'human' author? Was the computer merely an assisting instrument of its human user or was what copyright law had traditionally regarded as 'authorship' actually conceived and executed by a machine and not by a human?".
The problem, at that time, was posed to the United States Congress, which "... apparently found the Register's questions to be sufficiently disturbing and perplexing as to require more thorough investigation..." . Finally, in 1978, the National Commission (CONTU) created by the Congress, decided that the question had a simple answer: the user of the program should be considered the author of the computer-generated work; a computer could not be an author, "in any way".
Nearly eight years (1986) after CONTU's published final report, the U.S. Congress , from its Office of Technology Assesment (OTA), in its "Intellectual Property Rights in an Age of Electronics and Information" report, stated that CONTU was wrong in saying that "computer programs are inert tools of creation". The report establishes that "it is still an open question ... [i]f machines are in any sense co-creators, the rights of programmers and users of programs may not be easily determined within the present copyright system."
The issue of computers becoming authors, or machines being considered as the subject of rights reminds us of the basic principles of law. Law is addressed to all persons within a certain territory. That is part of the definition. Any national constitution - as the constitution is the highest law - establishes that the law applies over nationals. Nationals are people especially recognized by the State for their birth, or by special circumstances of nationalisation.
Roscoe Pound specifies that only persons can be "subjects of rights" or "holders" or "bearers" of rights or "enjoyers" of rights. Persons are "legal units" of the social order and are the only entities to have legal personality, capacity for rights, status, or ability to acquire and exercise rights.
The definition of "person" as subject matter of law is not an easy one, and has evolved as have several other definitions in society. Some of us still remember when slaves and women could not vote; they were not citizens. Their spheres of activity were limited and they did not have certain rights, as, for instance, land ownership, citizenship, etc.. They were not "legal persons".
Hans Kelsen states that "... The object of a norm (that which the norm prescribes or decrees to be obligatory) is the behaviour of a being endowed with reason and will, that is - according to present-day views - human behaviour. ... Thus there is no point in positing a norm unless it is addressed to a being which can understand this meaning content and be willing to behave in accordance with it (even if the objective validity of the norm is independent of the addressee's knowledge of the norm in a concrete case)".
On one hand, to accept the idea of "machines rights", or authorship by computers, is to go back to primitive societies, when the behaviour of animals, plants and even inanimate things was regulated by legal order in the same way as that of human beings. "...In the Middle Ages it was possible to prosecute an animal such as a bull which had caused the death of a human being, or locusts which had destroyed crops. The accused animal was condemned by process of law and executed just like a human criminal. This norm-content, absurd according to the present-day views, must be attributed to the animistic idea that not only human beings but also animals and inanimate objects have a 'soul', and so there is no basic difference between them and human beings. ... Though modern legal orders regulate only the behaviour of human beings and not that of animals, plants or inanimate objects, this does not mean that they do not prescribe human behaviour towards animals, plants and inanimate objects" .
However, on the other hand, to recreate the idea of a "person" different from a human being, to "whom" we attribute some sort of rights and duties, and give respect to, even if they are derivative or subordinate rights - which can be defined as second-class rights - could be a symptom of our times, who knows?
The focal point of the entire problem remains in the law - starting with the Berne Convention - which does not define the term "author", so anyone - or anything - can be an author. There are no rules for anyone to qualify as a programmer; therefore, you only have to write a program. You become a programmer the moment you - or any machine - write a program .
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