By Suaran Singh Sidhu (Head of Technology, Media and Telecommunications), Malvinderjit Kaur Dhillon (Associate) and Ezra Ponnudurai (Pupil-in-Chambers)
Defining and Redefining AI
International Business Machines Corporation (IBM) defines artificial intelligence (“AI”) as ‘any human-like intelligence exhibited by a computer, robot, or other machine.’ The rapid advancement of AI can be seen in Malaysia where within recent years, the government has made several plans for continued development and the industry has seen homegrown ideas flourish on the international stage.
Specifically, in the medical field, Stethee re-defined one of the most important tools for a doctor, the stethoscope, by using AI to allow for the filtration of sound important for providing a diagnosis. Saratix, in collaboration with Custlr, has brought about a new crowdsourced AI engine named SARA that accurately measures any one person’s body size using only a mobile device.
Man, or Machine?
Attributing an idea or creative work to an author is challenging as is, but what about works created by machines? Can a machine be an ‘author’?
Unfortunately, Malaysia does not have specific laws dealing with copyrights for AI at the moment with the closest regulating statute being the Copyright Act 1987. Section 3 of the Act defines the word ‘author’ as:
Furthermore, the lack of case law in this area means that the statute is the only point of reference that grants copyright protection for the life of the author and a further 50 years post-death.
As a robot or computer does not have a ‘lifespan’ or ‘death’, it stands to reason that protection would be granted indefinitely which would likely be frowned upon by the Courts as this prevents the free dissemination of information and knowledge.
Challenging the Bots
Can you sue if you believe your rights have been infringed by a machine? There are instances where human interference, alongside the AI programme, is needed to produce the work. In these instances, it can be said that the artist uses AI as a means to produce the work and not that the machine forms the idea and then executes it. Here, copyright protection should extend as it normally would for any other eligible work.
If the work has been created wholly by the machine, then it would not be possible to sue a non-human entity without any legal capacity in Malaysia. It would, however, be more practicable if the human operator of the AI software is identified instead – tying the infringement to an actual human entity.
Legislation in Malaysia is somewhat outdated for the rapid growth of technologies such as AI. While several plans have been discussed by the government over the years to further develop the field of AI, we have yet to see any updates and will have to rely on the Copyright Act 1987 until then.