Government of the Republic of Trinidad and Tobago
Intellectual Property Office - Office of the Attorney General and Ministry of Legal Affairs, Trinidad and Tobago

Revisiting the “human intellect” part of intellectual property

Revisiting the “human intellect” part of intellectual property

Veterans of intellectual property (IP) discussions know those discussions are based on the foundation knowledge that it deals with human creations, the fruit of human intellecutal effort. We say that intellectual property deals with the expressed creations of the human intellect or is human imagination expressed. The IP system addresses control of explicit knowledge once made available to the public. Tacit knowledge, of the type that concerns trade secrets, can remain in your head and have some value but you can lose control of explicit knowledge without IP rights. We humans create and own as property trade marks, brands, inventions and artisitc works, to name but a few types of IP. Even discussions on emerging areas such as traditional cultural expressions and folklore, which are not subject to the modern IP system, are still the result of human effort and creativity. We have assumed that humans are the only creative entities on earth. Is it time to take another look at that presumption?

IP celebrates our essence as creative beings, solvers of problems and determinants of our own futures. That very spark of creativity and self-awareness is often used as a defining element between humans and animals and humans and machines. As wonderfully complex and useful modern computers and machines are and how the change the quality of our lives, these creations of the human intellect essentially do what they are told by humans. It is said that we create not only out of necessity but also because we are compelled to and just for the fun of it. But is that creative capacity the sole province of human minds?

Elephant PaintingAnyone can dip an animal in paint and have them spatter a canvas or walk about with painty paws. The San Diego Zoo has a pair of meerkats names Hari and Hakuna who walk about on canvas with painted paws as part of a zoo project called “Art by Animals” to raise money by auctioning off their paintings. There is a lot of debate on the “works” done by elephants creating abstractions of themselves. But is it real art? Are they expressing something from the inside, following some form of entraining or flailing their appendages? Are the mating songs of whales music or just courtship noises?

The question takes a deeper dive when we get into artificial intelligence – the “minds” behind robots autonomous machines. Of course we can program machines to follow paths, assemble items and follow very complex instructions and respond to changing parameters. Your car activates its headlights automatically when it gets dark, activates its windshield wipers when it rains and some can now even parallel park your car, a skill many human drivers have yet to master. There is a competition called the DARPA Grand Challenge (Defense Advanced Research Projects Agency of the United States Department of Defense). It is a competition for American autonomous vehicles to spur development of fully autonomous vehicles. Vehicles must be able to navigate roads and follow traffic rules in response to changing conditions without human intervention. Industrial robots have been assembling items for decades. We have yet to see a machine that can build a solution to a problem.

We can program art robots to draw things based on parameters set by human minds. Algorithmic art has been around since 1960 as pioneered by Georg Nees and Frieder Nake. Fractal art is a type of algorithmic art that creates complex graphics based on fractal software. Other art robots can take cues from the eratic path traced by a fluttering butterfly or interpret maps into new abstractions. Some creators of newer types of artificial intelligence (AI) insist that some of the creations are not in the programmed repertoire and could perhaps be considered to be independently created. Others have not relinquished their authorship and opine that the software is an extension of themselves and, vicariously, the works so created.

AI systems have created music in the classical genre. One experiment in 2012 saw the side by side performance of musical works composed by men and AI but performed by human musicians and the human audience could not distinguish between the composers.

In 2008, a Russian publishing house released a 320-page novel created by software. There are blog-writing “bots” that regularly assemble and publish blurbs and blogs based on media feeds existing on the topic or persons of interest. You have probably read one already.

While the tools used by real and robot artists are common, what is essentially missing in the machine is the will or desire to create. It creates when switched on and stops until the next instruction. This is where the science is presently but is moving toward seeking independence of the AI to bridge the ceative desire gap.

These issues are not currently problems but more of scientific curiousities. That is until the AI wants ownership of its creations and the resulting rights. Then perhaps it will hire AI lawyers to demand rights and force open the definition of IP.

By Richard Aching