532 V O L . 7 5 P A R T 4 J U L Y 2 0 1 7 THE ADVOCATE
original work, should it be given the copyright? If not, does it properly
belong to the programmer? In general, the programmer might be considered
a co-author with the AI program, as the programmer introduces skill
and judgment into the initial programming of the AI program, but the programmer
has minimal input into the final product.
In practice, though, the programmer, or the party that commissioned the
programmer such as his or her employer, will be the party with a commercial
interest in exploiting the work, as the AI program does not express an
opinion on the subject (at least not yet).
Using a legislated approach to define the author of a computer-generated
work as the party that organizes the creation of the work initially, as has
been adopted in the UK, appears to be a practical solution for such works.
The copyright would then go to the party who is responsible for initiating
the development of something new, who will receive the commercial interests,
and the public obtains the benefit of a new work, generated by an AI
program or otherwise.
As well as avoiding potential litigation over whether copyright subsists in
AI-generated works, a specific legislative provision for AI-derived works
allows for the customization of the copyright term for AI-derived works as
distinct from other creations. AI-derived works could be provided a specific
copyright term from the date of creation or publication, as opposed to being
tied to the life of the author. As AI programs might be creative long past the
life of their original programmer, and effectively immortal themselves, the
ability to start the copyright term from the date of publication rather than
the death of the author may be a practical necessity in some cases.
Developing separate rules for AI-derived works can also allow for a customization
of the scope of droit d’author to be applied to AI-generated works.
To what extent should an AI-generated work possess moral rights? And if
any are granted, who should exercise them? In general it would seem that
where a programmer has launched an AI program with the ability to grow
independently, the programmer should not have the same claim to the
integrity of the resulting work product as an author who has created the
work in the specific manner they intended. On the other hand, some practical
level of control over the content created by AI programs may be necessary,
as demonstrated by the disastrous launch of Microsoft’s AI Twitter
bot TAY, which was taken down shortly after launch having become notorious
for its racist comments.15
1. See Melanie Hayes, Copyright and Artistic Works in
Canada: Toward a Theory of Aesthetic Judicial
Judgements (MA Thesis, University of Guelph, 2015),
online: <https://atrium.lib.uoguelph.ca/ xmlui/