Clearly a lawyer wrote this June 26, 2017 essay on theconversation.com (Note: A link has been removed),

When a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt, it was something of a tease to the art world. It wasn’t a long lost painting but a new artwork generated by a computer that had analysed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn.

The computer used something called machine learning [emphasis mine] to analyse and reproduce technical and aesthetic elements in Rembrandt’s works, including lighting, colour, brush-strokes and geometric patterns. The result is a portrait produced based on the styles and motifs found in Rembrandt’s art but produced by algorithms.

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But who owns creative works generated by artificial intelligence? This isn’t just an academic question. AI is already being used to generate works in music, journalism and gaming, and these works could in theory be deemed free of copyright because they are not created by a human author.

This would mean they could be freely used and reused by anyone and that would be bad news for the companies selling them. Imagine you invest millions in a system that generates music for video games, only to find that music isn’t protected by law and can be used without payment by anyone in the world.

Unlike with earlier computer-generated works of art, machine learning software generates truly creative works without human input or intervention. AI is not just a tool. While humans program the algorithms, the decision making – the creative spark – comes almost entirely from the machine.

It could have been someone involved in the technology but nobody with that background would write “… something called machine learning … .”  Andres Guadamuz, lecturer in Intellectual Property Law at the University of Sussex, goes on to say (Note: Links have been removed),

Unlike with earlier computer-generated works of art, machine learning software generates truly creative works without human input or intervention. AI is not just a tool. While humans program the algorithms, the decision making – the creative spark – comes almost entirely from the machine.

That doesn’t mean that copyright should be awarded to the computer, however. Machines don’t (yet) have the rights and status of people under the law. But that doesn’t necessarily mean there shouldn’t be any copyright either. Not all copyright is owned by individuals, after all.

Companies are recognised as legal people and are often awarded copyright for works they don’t directly create. This occurs, for example, when a film studio hires a team to make a movie, or a website commissions a journalist to write an article. So it’s possible copyright could be awarded to the person (company or human) that has effectively commissioned the AI to produce work for it.

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Things are likely to become yet more complex as AI tools are more commonly used by artists and as the machines get better at reproducing creativity, making it harder to discern if an artwork is made by a human or a computer. Monumental advances in computing and the sheer amount of computational power becoming available may well make the distinction moot. At that point, we will have to decide what type of protection, if any, we should give to emergent works created by intelligent algorithms with little or no human intervention.

The most sensible move seems to follow those countries that grant copyright to the person who made the AI’s operation possible, with the UK’s model looking like the most efficient. This will ensure companies keep investing in the technology, safe in the knowledge they will reap the benefits. What happens when we start seriously debating whether computers should be given the status and rights of people is a whole other story.

The team that developed a ‘new’ Rembrandt produced a video about the process,

Mark Brown’s April 5, 2016 article abut this project (which was unveiled on April 5, 2017 in Amsterdam, Netherlands) for the Guardian newspaper provides more detail such as this,

It [Next Rembrandt project] is the result of an 18-month project which asks whether new technology and data can bring back to life one of the greatest, most innovative painters of all time.

Advertising executive [Bas] Korsten, whose brainchild the project was, admitted that there were many doubters. “The idea was greeted with a lot of disbelief and scepticism,” he said. “Also coming up with the idea is one thing, bringing it to life is another.”

The project has involved data scientists, developers, engineers and art historians from organisations including Microsoft, Delft University of Technology, the Mauritshuis in The Hague and the Rembrandt House Museum in Amsterdam.

The final 3D printed painting consists of more than 148 million pixels and is based on 168,263 Rembrandt painting fragments.

Some of the challenges have been in designing a software system that could understand Rembrandt based on his use of geometry, composition and painting materials. A facial recognition algorithm was then used to identify and classify the most typical geometric patterns used to paint human features.

It sounds like it was a fascinating project but I don’t believe ‘The Next Rembrandt’ is an example of AI creativity or an example of the ‘creative spark’ Guadamuz discusses. This seems more like the kind of work  that could be done by a talented forger or fraudster. As I understand it, even when a human creates this type of artwork (a newly discovered and unknown xxx masterpiece), the piece is not considered a creative work in its own right. Some pieces are outright fraudulent and others which are described as “in the manner of xxx.”

Taking a somewhat different approach to mine, Timothy Geigner at Techdirt has also commented on the question of copyright and AI in relation to Guadamuz’s essay in a July 7, 2017 posting,

Unlike with earlier computer-generated works of art, machine learning software generates truly creative works without human input or intervention. AI is not just a tool. While humans program the algorithms, the decision making – the creative spark – comes almost entirely from the machine.

Let’s get the easy part out of the way: the culminating sentence in the quote above is not true. The creative spark is not the artistic output. Rather, the creative spark has always been known as the need to create in the first place. This isn’t a trivial quibble, either, as it factors into the simple but important reasoning for why AI and machines should certainly not receive copyright rights on their output.

That reasoning is the purpose of copyright law itself. Far too many see copyright as a reward system for those that create art rather than what it actually was meant to be: a boon to an artist to compensate for that artist to create more art for the benefit of the public as a whole. Artificial intelligence, however far progressed, desires only what it is programmed to desire. In whatever hierarchy of needs an AI might have, profit via copyright would factor either laughably low or not at all into its future actions. Future actions of the artist, conversely, are the only item on the agenda for copyright’s purpose. If receiving a copyright wouldn’t spur AI to create more art beneficial to the public, then copyright ought not to be granted.

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Geigner goes on (July 7, 2017 posting) to elucidate other issues with the ideas expressed in the general debates of AI and ‘rights’ and the EU’s solution.