The electronic person: controversies in light of the challenge of artificial intelligence and copyright in Costa Rica

By: Laura Hernández


All the major areas of Law have had to go through several evolutionary layers over the years in order to develop and be effectively applied in response to the needs of society, as this is how the socio-legal tools we know today are forged.

Thus, it is necessary to recognize that the birth of Intellectual Property was not a hasty one, since its construction in the context of Copyright is due to more than 500 years of development, through which various socio-cultural and political events would form the first pillars on which the protection of literary and artistic works would begin to be erected.

First of all, we must recognize in Ancient Rome some unmistakable glimmers of initial concerns about the moral and even patrimonial right that should assist the authors of the time. For example, the Roman Fabian Law established a crime called plagiarus, which typified acts of theft of children, slaves or free men, which was used as a metaphor to define illegitimate actions regarding the appropriation of literary or intellectual creations. Thus, from that time on, a sense of paternity over creations began to manifest itself, since it was even requested that the use of the work in quotations be attributed to the corresponding author.

Meanwhile, on the European continent at the beginning of the Middle Ages, it was the monasteries that used to have the tools and knowledge to create a significant volume of documents and reproduce copies of manuscripts. However, the works were considered collective as they came from the same community or abbey so there was no need for recognition of authorship. However, the imprecision that had been socially generated so far with respect to the recognition of authorship and its inherent protection, would see the beginning of its extinction with the creation of the printing press by Johannes Gutenberg in 1440.

In this sense, the printing press became the decisive factor that would mark a milestone consisting of a legal rupture in the regulation of written intellectual production, since it represented a challenge in view of the ease with which more booksellers – later called printers – could have printing machines at their disposal as tools by means of which they could reproduce copies of the same work, in greater volume, less time and at lower cost.

In such circumstances, the object of protection of the works is strengthened, both of the Patrimonial Law in the English System that sees the birth of the copyright for the protection of the work as original creation of an author and of the Moral Law in the French System through the ‘Droit d’ auteur’ by the iusnaturalistic system that agrees to it, in which the theory establishes as intrinsic not only an economic recognition but the moral recognition as a perpetual right, irrenuncable and irresistible, as well as the moral recognition as a right of the author.

Thus, we return to the current situation of Intellectual Property in which we are not only facing an area of law that has a homologous recognition on content, principles and scope of protection through international treaties and conventions, such as the Berne Convention of 1886 and the Universal Declaration of Human Rights of 1948, but there is a national consensus on the intrinsic value of the works as an annex of the author, even if the latter may eventually alienate his economic rights.

Thus, it is necessary to have made the journey through time to expose that the legal system is forged in response to the needs and challenges of society while evolving with it, and that, being a transversal circumstance of all branches of Law, the constitution of Copyright does not escape – nor can it escape – from that reality. It is around this evolutionary juncture of the Law, on which this article is based to weigh the possibilities of proposing the creation of a new legal fiction, which will be destined to a specific sphere of protection within the legal margin of Copyright in the Fourth Industrial Revolution of the Technological Era.

Artificial Intelligence

We know that Copyright is fundamentally intended to protect creations of literary or artistic works made by natural persons, given the necessity of the sine qua non element of creativity that imbues a work with originality. However, it is necessary to delve for a moment into the development that has taken place in the field of Artificial Intelligence before proceeding with the very interesting – albeit controversial – proposal of ‘Electronic Person’ presented within the Draft Report of the Committee on Legal Affairs of the European Parliament in 2016, which contemplates the need to create rules on robotics around Civil Law.

While the concept of intelligence has fascinated mankind from fields such as philosophy, medicine, sociology and even law, now it is the turn of technology as a branch of science in which it is attempted to peek both to understand what ‘intelligence’ is, as well as to build it. In this regard, in modern times the sub-area of AGI or Artificial General Intelligence was generated, which seeks a universal learning algorithm to generate a real capacity to respond to the environment and its fluctuations, which is currently one of the most important goals in the field of Artificial Intelligence. The AGI seeks to create a machine that is able to navigate any situation that a human being would face and be able to solve in a related, congruent and rational way as a person would do.

Thus, the theoretical transcendence of this article lies in the updating of knowledge on Intellectual Property, since it is evident that, for example, our Costa Rican legislation is no longer in an optimal state to face the challenges posed by new technologies, since, by way of illustration, Law 6683 on Copyrights and Related Rights was published in 1982, when access to computers corresponded almost exclusively to state entities and not so much to such a common sphere of private use. He also asks to say that now that technological advances are light years away from what was experienced at that time, it is reasonable to contemplate that computers and their software have taken enough ground to be considered an active agent of creations and not simply a tool to reproduce copies of manuscripts.

Now, with respect to the Draft presented in 2016 before the European Commission, although on that occasion the term Electronic Person is not coined having as a pillar the treatment under Copyright Law, the truth is that it undoubtedly generates a whole range of possibilities in the light of the implications of the creation of a new legal fiction intended for robots or autonomous machines with algorithms sufficiently advanced to consider them as carriers of Artificial Intelligence.

From the Project, a Resolution of the European Parliament emerges in 2017, which included recommendations and considerations around the impact of the development of technology in the field of advanced machines with even more efficient data processing capabilities to procure transparent and objective ‘decision’ making similar or even better than what a human being could do. With regard to Big Data and Machine Learning processing systems, we know that currently the Copyright Law protects them analogously to a literary work thanks to software, however, the Parliament’s proposal went further: to create a specific legal person for autonomous robots from systems with Artificial Intelligence called ‘electronic person’ who could even be subject to liability in areas of decision making with real effects in our society at civil level when interacting with third parties in an ‘independent’ way.

However, it is convenient to make the observations that not only could Electronic Personality be considered as a new legal fiction in the stratum of Civil Law, but in fact it could be considered in the field of Intellectual Property, specifically within Copyright Law. For example, in England its legal machinery contains some facilities in this regard through a specific protection for CGW Computer Generated Works -or OGC Computer Generated Works for its acronym in English-, in order not to abandon in its entirety the works created without a specific human author, to recognize them as a type of work with the same protection of the Copyright as if it had been made by a human being. In this sense, we have the artistic work generated in its entirety by an Artificial Intelligence after having ‘studied’ many of the works of the painter Rembrandt and generated a beautiful painting that -if it had been made by a human being- would undoubtedly enjoy the protection of the Copyright.

Perhaps in this context it is appropriate to illustrate a real example of a contract between an algorithm and a legal entity in our times: the record label Warner Music Group-WMG-which in January 2019 entered into the first employment contract with an algorithm. The distribution and publishing contract was for the production of 20 music albums. Needless to say, the ENDEL algorithm was added to WMG’s artist roster alongside Madonna and Ed Sheeran, making it the first contract of its kind in the music industry world.

Thus, it begs the question of whether we are indeed reaching a moment in our present time in which, although for the moment Artificial Intelligence still requires an initial supervision and programming by the human being, it is moving further and further away from being a simple tool of creation such as the keyboard that writes this opinion in simple response to the intentional pressure of the fingers, and is approaching a semi-autonomous system ‘capable’ of making original works which, although they are born by algorithms, are born by algorithms, although they are born by human algorithms, the truth is that they had not been created in the first place or directly by humans with their own capacity, as was the case of the engineers responsible for Endel -who are not musicians and would not have been able to compose the songs that their algorithm did- or as the painting with a technique similar to that of Rembrandt -which the team of engineers also recognizes that they could never have done something like that directly with their own capacity because they are engineers and not artists-.

Although the proposal of an Electronic Personality for the effects of civil rights and responsibilities did not transcend in the European Parliament, perhaps we could contemplate the possibility that for Intellectual Property the electronic persons could share some type of recognition of authorship -but not patrimonial- because even at the level of commerce it is attractive for many people that the authorship of some work is recognized at least in part as of an Artificial Intelligence, because for example there is a page artaigallery. com which sells many works in different price ranges and its main attraction is that they are created by Artificial Intelligence.

Perhaps we are not yet at a technological juncture that merits the haste of creating a new legal fiction for robots, however, I believe that we would do well to remember that the Law has the obligation not to lag behind in the face of the new challenges and opportunities brought about by the technological development of the Fourth Industrial Revolution, perhaps, that which at some point will be considered madness almost coming from a science fiction movie, will become a plausible solution in the face of the advances within the field of that Artificial Intelligence which is becoming less and less of a tool and more and more of an ‘author’.


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