Technological developments and challenges in copyright law

3/4/2019 | Computers can do more and more and have become indispensable in our modern society. Only a century ago, in 1919, the invention of the Flipflop laid the foundation for an electronic digital memory. When experimenting with vacuum tubes used in radio technology, Eccles and Jordan discovered a circuit with an interesting property: memory. Normally, the output signal of a circuit changes depending on the input signal, but with the 'flipflop' this was different. It had two inputs and two stable positions were possible. A short pulse on one input set the circuit to 'position 0' ('flip') and only one pulse on the other input could set it back in 'position 1' ('flop'). In this way, the flipflop 'remembered' the number 0 or 1, and with this, the foundation for digital memory was laid. Today, millions of Flipflops are brought together on chips in the heart of every modern computer.

Less than 100 years ahead of time, in 2016, the company Aiva Technologies managed to develop an artificial intelligence called AIVA (Artificial Intelligence Virtual Artist), with which computers can compose artistic musical works. By reading a large collection of existing classical music works (written by human composers such as Bach, Beethoven, Mozart), the algorithm of AIVA is able to discover regularities in music and to compose musical works on this basis. SACEM, the French copyright organisation, has officially recognised the AIVA as a composer. This leads to all kinds of legal complications, such as the question whether such composers are, therefore also copyright owners, such as human composers. For the time being, this does not seem to be the case. Animals, for example, also cannot be copyright owners. The world-famous Indonesian Maki monkey, who played with a camera and made a selfie, was likewise not considered a copyright owner according to the American court. A speed camera that takes photos independently along the roadside is also not a photographer as referred to in the Copyright Act. The same line could be taken further and applied to 'virtual artists' such as AIVA.

Yet today, legislators are struggling with the developments technology is bringing about, particularly in our digital world. YouTube, for example, is one of the largest providers of music and video that pays relatively little to nothing to copyright owners. When protected works are uploaded to YouTube without permission, it is important, in terms of liability, to determine whether YouTube is merely a passive 'host' or an active 'publisher'. This question has not yet been answered and the legal status remains unclear. Another complication occurs with 'news aggregators' - web applications that automatically copy and link headlines from news sites. Examples are Google News, news items on Facebook, Snapchat, etc. A new European Commission proposal for a directive on copyrights in the digital single market aims to address this problem. The proposal provides for exclusive rights for the press to use their press publications digitally, but it does not include hyperlinked links to news items or the use of individual words or very short extracts from press publications. It is precisely these exceptions that are at the heart of the problem of news aggregators and, according to many, the new directive will not solve anything in this regard.

Technological developments make our world easier, but at the same time also much more complicated. We are constantly challenged to define what a creation is, how a human, animal or artificial intelligence distinguishes itself from others, which rights you can grant to each, and how you can maintain a good balance between protecting the rights of owners on the one hand and freedom of information on the other.

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