One of the most significant outcomes of the so-called "Fourth Industrial Revolution" is the development of highly sophisticated technologies for artificial intelligence (“AI”). The scale, scope, and complexity of tasks that can be performed by AI are perceived to be endless. In fact, many human activities are now being carried out by or with the help of AI. One of those activities is the creation of artistic works, including music, painting, literature, and others. Traditionally, only humans could be considered to have created such works, especially in a legal sense, including under copyright law. But now, as AI can significantly contribute to the process of creating such works, oftentimes much more than humans themselves, the question arises as to whether copyrights may be granted for AI-generated works and if so, who is entitled to receive the copyright. The purpose of this article is to discuss this issue especially from a Korean law perspective. But as much of this discussion focuses on copyright issues generally regarding AI, it may be applicable to other jurisdictions as well.

Under Korean law, a copyrightable work is defined as “a creative production that expresses human thoughts and emotions.” In other words, in order to be protected by copyright law in Korea, a work must satisfy three different requirements. First, a work needs to be “creative,” meaning the work is original and not an imitation of someone else’s work. Second, human thoughts and emotions need to be “expressed” through some medium. An idea itself does not constitute a copyrightable work. Finally, a work needs to reflect “human thoughts and emotions.”

Controversy over whether AI-generated works are copyrightable may arise, particularly regarding whether AI-generated works indeed reflect “human thoughts and emotions.” AI is inherently devoid of human thoughts and emotions, although it can act as though it does have them. In the United States, which has a copyright regime that is similar to that of Korea, there was a somewhat analogous case where the copyright status of selfies taken by a monkey was the subject of a dispute. The U.S. court ruled that such work cannot be considered copyrightable. It is also a common view within the Korean legal community that a work is not copyrightable if not created by humans. If not copyrightable, AI-generated works would fall into the public domain.

However, unlike a work created by a monkey, AI-created works require a more careful analysis. In contrast to monkeys, AI bases its creation on an extensive database of works created by humans, using machine learning or “deep learning” technology. Also, some degree of human intervention is inevitable in the process of AI-creation, as it is humans who control and manipulate the functioning of AI. Therefore, human thoughts and emotions may be considered embedded in AI-generated works, making them eligible to obtain copyright. From the current definition of a copyrightable work under Korean law, it is hard to draw a definite conclusion on how courts would treat AI-generated works in relation to copyright.

This question was resolved in China, however, when a company named Tencent filed a lawsuit in 2020 claiming a copyright infringement on articles made by its AI "Dreamwriter," which is an intelligent writing technology that creates articles based on data and algorithms. According to a news report, the Chinese court recognized a copyright for these articles written by Dreamwriter and ruled in favor of Tencent. The court did not specifically address whether copyrightable works can be created only by humans, but took into consideration that the articles at issue were created under the control and supervision of Tencent by its major creative team, editorial team, product team, and technical development team, and that the requirement of creativity is deemed satisfied as the articles reflected stock market information, data selection, analysis and judgement. The fact that Tencent led the creation of the articles seems to have strongly influenced the decision of the court.

Another issue to be addressed would be who owns the copyright for works generated by AI. Under Korean law, an author of a copyrightable work is defined as “a person who creates a work,” and a “person” in Korea not only includes a natural person but also a corporate entity or an organization. AI does not fall under the definition of a “person.” But one may argue that it is AI itself that should be entitled to a copyright, especially when humans did not directly contribute to the process of creating the work, except for pressing some buttons to allow AI to operate. Nonetheless, the concept of AI itself being permitted to exercise “rights” or to be held accountable actions taken by an AI program are not yet established. AI should not be treated similarly to corporate entities because unlike AI, corporate entities are essentially a group of natural persons.

Some argue that AI developers should be entitled to a copyright for AI-generated works. The underlying assumption is that AI-generated works are merely a by-product of the AI development. Rewarding AI developers as such would greatly encourage active investment into AI development and may lead to creation of more advanced and superior works for the public to enjoy. Such outcome is in line with the very purpose and spirit of the copyright law. However, this view is not without limitations. AI developers may have developed the original technology but not the work itself. Also, there may be other contributors such as those who provide additional data that is used by the AI program for the creation of particular works. Too much compensation may be given to the AI developers in that case, compared to other contributors.

Others argue that AI users themselves should be entitled to copyright for AI-generated works. They assume that AI is merely a tool or an instrument for creation which is activated and controlled by their users. This view is relatively consistent with how the current legal system in Korea works regarding copyright. Under the current law, a copyright may be granted even when a work was created using computer technology, for example. But if a work was mostly, if not entirely created by AI, it might not unfair to reward the AI users who contributed little to the substance of the work. Such concern would be raised, especially as AI technology becomes more sophisticated and AI users become less involved in the creation process.

The ownership issue regarding AI-generated works remains highly controversial, and no one view set out in this article can easily provide a solution that is both feasible and fair. AI technology is constantly evolving, and AI’s capabilities to create works eligible for copyright are improving accordingly. But laws often lag behind fast-moving technology and due to the absence of clear guidelines offered by laws and regulations regarding the subject, more disputes are expected to occur in the coming days.

On December 21, 2020, in Korea, a legislative proposal for amendment of the Korean copyright law was made in an effort to address this issue. It was sent to the Korean legislature on February 24, 2021, and the review process is underway. The proposal adds the new definition of an ‘author of a work created by using an AI service’ which is determined based on the level of contribution to the creation. By stipulating that an AI developer who created an algorithm or a human artist who provided data for AI learning may also be a copyright owner, the proposal seeks to find an equitable balance for protecting the contributors. The proposal also states that a copyright for AI-created work lasts for 5 years after public disclosure, and for the registration process, its author needs to specify that the work was created by AI. It is hard to predict whether this proposal will be enacted. But if it is enacted, creation activities using AI will be significantly stimulated.