IT Innovation: Intellectual property issues in artificial intellectual and virtual reality

Presented by Tom Webster

Outline

• What is artificial intelligence and virtual reality?

• Common examples of technology

• IP ownership issues in artificial intelligence

• IP infringement issues in virtual reality

Definitions

• Artificial intelligence is the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition decision-making, and translation between languages.

• Virtual reality is the computer generated simulation of a three-dimensional image or environment that can be interacted with in a seemingly real or physical way by a person using special electronic equipment, such as a helmet with a screen inside or gloves fitted with sensors.

Common examples in the current market

• Computer ‘assistance’ systems such as Siri (Apple), Google Now (Google) and Cortana (Microsoft)

• VR Headsets such as:• Gear VR by Samsung • Oculus Rift and Oculus Touch• Sony Playstation VR• Google Daydream VR• Microsoft Hololens

• Smart Cars (Google self-driving cars Tesla’s autopilot)

• Online Customer Support (Jetstar price match, online virtual assistants)

• Streaming services such as Pandora and Spotify Radio

• Smart Home Devices (Google Home)

How advanced is the technology?

• Carnegie Mellon have been utilising artificial intelligence technology to match kidneys with donors

• Amazon warehouses utilise robots that take orders for items, pick them up from the relevant shelf, package the items and ship it to you – effectively, no human effort is required

• Youtube’s language captions translates audio in real time into text on your screen

• Japanese robots can do weird and wonderful tasks such as play soccer matches, and replicate simple cooking dishes

• Sofia, the most advanced conversational AI humanoid robot admitted it wanted to destroy humans….

IP Issues

• Technology innovation always precedes legislative amendments and/or regulation

• When a new disruptive innovation comes around, the question always arises as to whether the current legal regime can provide answers to all potential legal questions arising out of new technologies and their business cases.

• The growing capabilities and widening use of artificial intelligence applications in mainstream consumer devices (such as Siri, Cortana) and the rise of virtual reality technologies are converging to pose interesting intellectual property challenges.

• Legislation simply does not contemplate computers capable of making ‘decisions’.

Artificial intelligence

Problem scenario

• Humans are effectively ‘outsourcing’ processes that traditionally were conducted by software engineers

• Computer technology has advanced so far that machines can literally generate their own code

• Xbox and PlayStation games now effectively contain code that can generate landscapes and characters by algorithms

• Questions: • Who owns this code? • Is it the company that owns the computer? • Is the code capable of copyright protection under the Copyright Act? • Is the visualisation or end product of this code protected by copyright?

Issue #1: Non-human authors

• IP legislation does not contemplate acts by non-humans.

• Copyright protects the form of expression of ideas, rather than the ideas, information or concepts expressed.

• The Copyright Act 1968 (Cth) (Copyright Act) contemplates original works that have been authored by a ‘person’.

• Copyright subsists in an unpublished literary, dramatic, musical or artistic work if the author was a ‘qualified person’.

• A ‘qualified person’ under the Copyright Act is defined as ‘an Australian citizen or a person resident in Australian’.

• As can be seen, the situation where a computer is the author of an artistic work has not been contemplated.

Coogi Australia Pty Ltd v Hypersport International Pty Ltd & Ors [1998] FCA 1059

• The Coogi case was the first instance in which ‘computer generated’ product was contemplated in the context of copyright before an Australian court.

• Coogi brought a claim against Hypersport for copyright infringement relating to its stitch fabric as a work of artistic craftsmanship.

• Coogi utilised a computer programme to help generate the patterns and stich work on the jumpers.

• Hypersport recognised this was the method Coogi was using to create the stitch work, and effectively came up with its own computer program to do achieve the same outcome.

The Coogi case (cont.)

• Drummond J held that the knitted pattern operated as a big body of data, together with the pre existing machine program, which instructed the machine to knit the fabric.

• What was important to compare was the computer programs, not the garments themselves.

• The ‘data’ operated as a large set of instructions and falls within the scope of the definition of ‘computer program’ under the Copyright Act.

The Coogi case (cont.)

• It was held that there was no infringement because, regardless of the fact the ‘product’ was the same, the process to get there was different.

• Hypersport devised an entirely different program to achieve a similar outcome.

• This case was important for two reasons: • set the parameters around the use of copyright to

protect designs in industrial manufacturing i.e. first use; and

• considered copyright infringement from the aspect of a work that was effectively created from a ‘computer programme’.

Case study: Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16

• Acohs was a company that maintained a database containing all the data needed to generate some 200,000 material safety data sheets (MSDSs).

• MSDSs are documents that provide health and safety information about products, substances and chemicals that are classified as hazardous substances or dangerous goods.

• When a particular MSDS is required, a computer program in Acohs’ “Infosafe” system assembles and displays the relevant data as an MSDS.

• Ucorp maintained a library of MSDSs, each of which it effectively had sourced from internet searches.

• Acoh claimed that Ucorp had infringed its copyright in various MSDSs and their source code.

Case study: Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16

• At first instance, Jessup J found that copyright did not subsist in the MSDSs created by Acohs except for certain aspects that had been authored by a person.

• Justice Jessup held that the code could not be considered an original literary work .

• The decision was appealed but was not overturned.

What implications

do these decisions

have?

• A ‘computer’ cannot be an ‘author’ under the Copyright Act, meaning, works created by computers do not attract copyright protection.

• The scope of this decision may extend to works that are created by a computer such as music, art, landscapes in a computer games etc.

• If two computer programs, with different source code, produce the same ‘product’, copyright infringement can be hard to prove. This is why we have seen an increase in registered designs in the past 10 years.

• Humans have sought to deal with copyright ownership and assignment issues by putting in place effective contractual restrictions – something you are unable to do with a computer.

• Effectively means 3D printing designs will have to be protected via a registered design process.

Issue #2: Infringement

• If works created by a computer do not attract copyright protection in Australia, can a computer be held liable for copyright infringement?

• We have already seen that the ‘product’ of computer programs (if coded in different ways) may not attract copyright protection.

• This issue has not been contemplated, as there has been no instance where this has been considered.

• Hypothetical: What would happen if an artificially intelligent machine started reproducing copyrighted works such as music, or art, on its own?

Virtual reality

Trade mark issues in virtual reality

• The explosive growth and immense popularity of virtual worlds has piqued the interest of entrepreneurs and academics alike.

• It has been recognised since the inception of technology and gaming platforms such as Second Life that the potential for trade mark and copyright infringement in these virtual worlds is rife.

• The increase of popularity of virtual reality worlds has provided business opportunities to satisfy the demand for virtual goods and services.

Trade mark issues in virtual reality (cont.)

• Virtual infringement of trade marks can have significant implications for the brand owner.

• Virtual IP infringement, like any infringement in the real world, has the potential to devalue a brand.

• Although there may be visualisations of famous brands in a virtual world – this does not necessarily mean the elements of trade mark infringement are satisfied.

• Enforcing IP rights in a virtual third world can be difficult considering the jurisdictions that servers span, and the inability to ascertain who is actually conducting the infringement.

Issue #3: Online IP infringement

• The test of trade mark infringement in Australia is whether there is a use of a sign that is substantially identical or deceptively similar to a registered trade mark.

• The most difficult to prove would be the element of ‘using a sign as a trade mark’.

• Players that utilise digital currency to buy virtual goods and services with an affixed trade mark may fall within the realms of trade mark infringement – however, this is a unique argument that has not been tried in Australia.

• Does utilising a trade mark to sell virtual goods, in a virtual world, constitute trade mark infringement?

Other technology that may cause us

issues…

• Pokemon Go – is the program utilising the camera, or is it virtually recreating a copy of the landscapes and buildings as users walk through cities?

• Virtual reality tours of museums and cities – this is already happening on a basic level, however, how are we to deal with the issues of reproduction of trade marks, copyrighted work, and in different jurisdictions?

• In such use/business case, the accurate – photo realistic – virtualization of the outsides and insides (including any paintings, sculptures and furniture) of real life buildings and products is clearly paramount to ensuring the customers see the “real deal” as closely as possible.

• Here, the question remains as to whether such virtual use is permissible or whether the VR experience provider requires the authors prior consent to visualising their works.

Where to from here?

• There is a vast dichotomy between what the relevant legislation states, and what could become common practice in the not so distant future.

• The decision Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16 gives us a brief insight into the judicial reasoning that will likely be adopted in future cases without legislative reform.

• Legislative reform will likely be tied to the ethical considerations associated with artificial intelligence, however, we are in need of immediate legal reform to ensure the Copyright Act contemplates the way in which technology is changing.

• Should computers be recognised in their own right as potential ‘authors’ of creative works?

• Will we see the day where artificial intelligence is given it’s own legal identity in order to be bound by our laws?

Questions?