The sui generis regime protects collective journalistic work but for a shorter amount of time than full copyright – avoids the net benefit but solves the aff

4. Results The cross-examination of the aforementioned cases, which covers the most common practices of artificial intelligence systems-aided journalism to this point, their classification considering the legal axis of authorship (and originality) and typology of work, and the phase of journalistic work (gathering, production and dissemination) could help us to determine to what extent copyright law can cover these new products.

First of all, it is to be noted that all of them are produced due to the initiative and investment of a company, a corporate entity which is typically considered the one under whose coordination a collective work is made. This is to say that media companies as corporate entities are the producers of a collective work, not the authors of it. This is a characteristic more relevant in Civil Law countries than in the Common Law legal tradition, in which an entrepreneurial point of view is more explicit than in the most authorial, based on the creativity of individuals, approach of Civil Law countries. This, which was in the origin of copyright and authors’ rights legal systems, has been modulated over time, and the importance of producers is evident in the case of, e.g., the audiovisual work. There are some movements to extend this consideration to the producers of multimedia works. One of those movements is the aforementioned lobbying activity of the major newspaper companies in Europe or the European Union to enact an ancillary exploitation right for press publishers, materialized in Article 15 of the Directive on Copyright and Related Rights in the Digital Single Market, 2019, to be implemented by state members (as of mid-2020, the only one to do so was France). Article 15 is intended to protect press publications “concerning online uses”, for two years after publication. The duration of rights is notably shorter than the protection given to personal creations (all the authors’ life term plus 70 years after his or her death), but is perfectly suitable for automated creations. There is an advantage in such artificial intelligence systems-aided works, since, when an author’s name is not mentioned, no one has to receive “an appropriate share of the revenues”. The Resolution of the 2019 AIPPI World Congress on Copyright in artificially generated work, one of the most developed documents on this area, agrees with this conception, and considers that “the term should be shorter than for the other copyrightable works” [23] (p. 19). This is an important thing to be remarked, since non-authored works may enter the public domain much earlier than authored ones. Madeleine de Cock Buning made an interesting reflection on this: “Without any form of intellectual property protection, these works can be used, reproduced, changed and distributed to the benefit of all. One can argue in favor of this option where Artificial Intelligence Systems creation is a positive consequence of Artificial Intelligence to the benefit of society as a whole” [8].

This also avoids also the application of moral rights, especially important in Civil Law, authors’ right countries, but not so much in Common Law countries: in the United Kingdom, for instance, journalists are an exception of moral rights and the companies have no obligation to mention the name of their hired workers—although they usually recognize them as authors, all the way. This legal provision, and the similar one planned in Australia in the Final Report on the Digital Platforms Inquiry by the Australian Competition and Consumer Commission (ACCC), published on 26 July 2019, states the importance of enacting such a right for press publishers, to help them monetize content.

The question of authorship, which is an unwaivable moral right in many countries, most especially in Civil Law ones, is of crucial importance when examining the changes that artificial intelligence systems-aided news production can cause to journalists and companies. In many Civil Law countries, authorship is only applicable to human creators, not to corporate entities or to software. Also, in the United States, even if such provision does not appear in the Copyright Act, we can consider that there is a similar principle, since the Copyright Office has repeatedly declared that it will “register an original work of authorship, provided that the work was created by a human being”. In the gathering phase of the journalistic work, artificial intelligence systems act as a simple tool—no matter how complex is their design, they are manipulated by human people—and produce no final work to be published. Facts and data, it should be remembered, are not protectable by themselves. We agree with Lin Weeks: “At the highest level of abstraction, automated journalism stories consist of an algorithm, or input (known in the industry as clean data), and of prose output” [19] (p. 85). Copyright law can only protect the second. Copyright law only covers the final output placed into public knowledge using intellectual skills.

Moreover, human authorship is to be recognized when artificial intelligence systems are used for data gathering, text mining, searches or verification. Since the initial work to be improved is made by human people, the final result is also due to them, and not to machines. When AIS is used for content curation as well, as a starting point for news items creation, the final authorship is of human journalists. A similar case happens when a journalist or editor revises the mistakes made by artificial intelligence systems. The final responsibility before the final publication of work is due to an individual or to the corporate entity, in any case.

It is obvious that the development of software can be authored by someone and commissioned by a company, which is the usual case. Following Lin Weeks, the protection of the algorithm itself, considered, we should add, as a form of software, is uncontroversial; more problematic is how to protect the output itself [19]. Whenever software is an instrument for creation, the final responsibility of the output is due to human authors. It is unusual, but not impossible, that just one individual is the inventor of the AIS software and the creator of the work. At least, there is one early example of it, the aforementioned Ken Schwencke, a journalist who both programmed an algorithm and exploited the results of it in 2014. Since he controlled the whole process, he signed the news. There is some way to attribute authorship to the programmer in countries such as Hong Kong, the United Kingdom, Ireland, India or New Zealand, all of the Common Law countries. For instance, section 9(3) of the Copyright, Designs and Patents Act (CDPA) states that “in the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”, but it adds in section 178 that to be considered as that, it must be “generated by computer in circumstances such that there is no human author of the work” There is a parallel comparison, for instance, with generative music. A musician can use software (one example is Wotja, developed after the suggestion of musicians such as Brian Eno) to create music adjusting some parameters and patterns, and once done that, the artificial intelligence system starts creating music, which in turn can be modified whilst playing. The authorship of such musical pieces is of those human beings who decide which parameters must be adjusted, when and how. We agree with Andrés Guadamuz when he said that “the idea behind such a provision [referring to the UK Copyright Act] is to create an exception to all human authorship requirements by recognizing the work that goes into creating a program capable of generating works, even if the creative spark is undertaken by the machine” [24].