A ‘computer’ cannot be an ‘author’ under the Copyright Act, meaning, works created by computers do not attract copyright protection. There is a vast dichotomy between what the relevant legislation states in Australia, and what could become common practice in the not so distant future. Legislative reform is required to adapt to the way technology is evolving at a rapid pace.

1. IT Innovation:
Intellectual
property issues in
artificial intellectual
and virtual reality
Presented by Tom Webster

2. Outline
• What is artificial intelligence and virtual reality?
• Common examples of technology
• IP ownership issues in artificial intelligence
• IP infringement issues in virtual reality

3. Definitions
• Artificial intelligence is the theory
and development of computer
systems able to perform tasks
normally requiring human
intelligence, such as visual
perception, speech recognition
decision-making, and translation
between languages.
• Virtual reality is the computer
generated simulation of a three-
dimensional image or environment
that can be interacted with in a
seemingly real or physical way by a
person using special electronic
equipment, such as a helmet with a
screen inside or gloves fitted with
sensors.

4. Common examples in the
current market
• Computer ‘assistance’ systems such as Siri (Apple), Google
Now (Google) and Cortana (Microsoft)
• VR Headsets such as:
• Gear VR by Samsung
• Oculus Rift and Oculus Touch
• Sony Playstation VR
• Google Daydream VR
• Microsoft Hololens
• Smart Cars (Google self-driving cars Tesla’s autopilot)
• Online Customer Support (Jetstar price match, online virtual
assistants)
• Streaming services such as Pandora and Spotify Radio
• Smart Home Devices (Google Home)

5. How advanced is the technology?
• Carnegie Mellon have been utilising artificial intelligence technology to
match kidneys with donors
• Amazon warehouses utilise robots that take orders for items, pick them up
from the relevant shelf, package the items and ship it to you – effectively,
no human effort is required
• Youtube’s language captions translates audio in real time into text on your
screen
• Japanese robots can do weird and wonderful tasks such as play soccer
matches, and replicate simple cooking dishes
• Sofia, the most advanced conversational AI humanoid robot admitted it
wanted to destroy humans….

6. IP Issues
• Technology innovation always precedes legislative
amendments and/or regulation
• When a new disruptive innovation comes around, the
question always arises as to whether the current legal
regime can provide answers to all potential legal
questions arising out of new technologies and their
business cases.
• The growing capabilities and widening use of artificial
intelligence applications in mainstream consumer
devices (such as Siri, Cortana) and the rise of virtual
reality technologies are converging to pose interesting
intellectual property challenges.
• Legislation simply does not contemplate computers
capable of making ‘decisions’.

7. Artificial intelligence

8. Problem scenario
• Humans are effectively ‘outsourcing’ processes that traditionally were
conducted by software engineers
• Computer technology has advanced so far that machines can literally
generate their own code
• Xbox and PlayStation games now effectively contain code that can
generate landscapes and characters by algorithms
• Questions:
• Who owns this code?
• Is it the company that owns the computer?
• Is the code capable of copyright protection under the Copyright Act?
• Is the visualisation or end product of this code protected by copyright?

9. Issue #1: Non-human authors
• IP legislation does not contemplate acts by non-
humans.
• Copyright protects the form of expression of ideas, rather
than the ideas, information or concepts expressed.
• The Copyright Act 1968 (Cth) (Copyright Act) contemplates
original works that have been authored by a ‘person’.
• Copyright subsists in an unpublished literary, dramatic,
musical or artistic work if the author was a ‘qualified
person’.
• A ‘qualified person’ under the Copyright Act is defined as
‘an Australian citizen or a person resident in Australian’.
• As can be seen, the situation where a computer is the
author of an artistic work has not been contemplated.

10. Coogi Australia Pty Ltd v
Hypersport International Pty Ltd
& Ors [1998] FCA 1059
• The Coogi case was the first instance in which ‘computer
generated’ product was contemplated in the context of
copyright before an Australian court.
• Coogi brought a claim against Hypersport for copyright
infringement relating to its stitch fabric as a work of artistic
craftsmanship.
• Coogi utilised a computer programme to help generate the
patterns and stich work on the jumpers.
• Hypersport recognised this was the method Coogi was
using to create the stitch work, and effectively came up
with its own computer program to do achieve the same
outcome.

11. The Coogi case (cont.)
• Drummond J held that the knitted pattern
operated as a big body of data, together
with the pre existing machine program,
which instructed the machine to knit the
fabric.
• What was important to compare was the
computer programs, not the garments
themselves.
• The ‘data’ operated as a large set of
instructions and falls within the scope of
the definition of ‘computer program’
under the Copyright Act.

12. The Coogi case (cont.)
• It was held that there was no infringement because,
regardless of the fact the ‘product’ was the same, the
process to get there was different.
• Hypersport devised an entirely different program to
achieve a similar outcome.
• This case was important for two reasons:
• set the parameters around the use of copyright to
protect designs in industrial manufacturing i.e. first
use; and
• considered copyright infringement from the aspect
of a work that was effectively created from a
‘computer programme’.

13. Case study: Acohs Pty Ltd v
Ucorp Pty Ltd [2012] FCAFC 16
• Acohs was a company that maintained a database containing
all the data needed to generate some 200,000 material safety
data sheets (MSDSs).
• MSDSs are documents that provide health and safety
information about products, substances and chemicals that are
classified as hazardous substances or dangerous goods.
• When a particular MSDS is required, a computer program in
Acohs’ “Infosafe” system assembles and displays the relevant
data as an MSDS.
• Ucorp maintained a library of MSDSs, each of which it
effectively had sourced from internet searches.
• Acoh claimed that Ucorp had infringed its copyright in various
MSDSs and their source code.

14. Case study: Acohs Pty Ltd v
Ucorp Pty Ltd [2012] FCAFC 16
• At first instance, Jessup J found that copyright did not
subsist in the MSDSs created by Acohs except for certain
aspects that had been authored by a person.
• Justice Jessup held that the code could not be considered
an original literary work .
• The decision was appealed but was not overturned.

15. What
implications
do these
decisions
have?
• A ‘computer’ cannot be an ‘author’ under the
Copyright Act, meaning, works created by
computers do not attract copyright protection.
• The scope of this decision may extend to works that
are created by a computer such as music, art,
landscapes in a computer games etc.
• If two computer programs, with different source
code, produce the same ‘product’, copyright
infringement can be hard to prove. This is why we
have seen an increase in registered designs in the
past 10 years.
• Humans have sought to deal with copyright
ownership and assignment issues by putting in place
effective contractual restrictions – something you
are unable to do with a computer.
• Effectively means 3D printing designs will have to be
protected via a registered design process.

16. Issue #2: Infringement
• If works created by a computer do not attract
copyright protection in Australia, can a computer
be held liable for copyright infringement?
• We have already seen that the ‘product’ of
computer programs (if coded in different ways)
may not attract copyright protection.
• This issue has not been contemplated, as there
has been no instance where this has been
considered.
• Hypothetical: What would happen if an artificially
intelligent machine started reproducing
copyrighted works such as music, or art, on its
own?

17. Virtual reality

18. Trade mark issues in virtual
reality
• The explosive growth and immense popularity of
virtual worlds has piqued the interest of
entrepreneurs and academics alike.
• It has been recognised since the inception of
technology and gaming platforms such as Second
Life that the potential for trade mark and
copyright infringement in these virtual worlds is
rife.
• The increase of popularity of virtual reality worlds
has provided business opportunities to satisfy the
demand for virtual goods and services.

19. Trade mark issues in virtual
reality (cont.)
• Virtual infringement of trade marks can have
significant implications for the brand owner.
• Virtual IP infringement, like any infringement in the
real world, has the potential to devalue a brand.
• Although there may be visualisations of famous
brands in a virtual world – this does not necessarily
mean the elements of trade mark infringement are
satisfied.
• Enforcing IP rights in a virtual third world can be
difficult considering the jurisdictions that servers
span, and the inability to ascertain who is actually
conducting the infringement.

20. Issue #3: Online IP infringement
• The test of trade mark infringement in Australia is
whether there is a use of a sign that is substantially
identical or deceptively similar to a registered trade
mark.
• The most difficult to prove would be the element of
‘using a sign as a trade mark’.
• Players that utilise digital currency to buy virtual goods
and services with an affixed trade mark may fall within
the realms of trade mark infringement – however, this
is a unique argument that has not been tried in
Australia.
• Does utilising a trade mark to sell virtual goods, in a
virtual world, constitute trade mark infringement?

21. Other technology
that may cause us
issues…
• Pokemon Go – is the program utilising the
camera, or is it virtually recreating a copy of the
landscapes and buildings as users walk through
cities?
• Virtual reality tours of museums and cities – this
is already happening on a basic level, however,
how are we to deal with the issues of
reproduction of trade marks, copyrighted work,
and in different jurisdictions?
• In such use/business case, the accurate – photo
realistic – virtualization of the outsides and
insides (including any paintings, sculptures and
furniture) of real life buildings and products is
clearly paramount to ensuring the customers
see the “real deal” as closely as possible.
• Here, the question remains as to whether such
virtual use is permissible or whether the VR
experience provider requires the authors prior
consent to visualising their works.

22. Where to from here?
• There is a vast dichotomy between what the relevant
legislation states, and what could become common practice in
the not so distant future.
• The decision Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16
gives us a brief insight into the judicial reasoning that will likely
be adopted in future cases without legislative reform.
• Legislative reform will likely be tied to the ethical
considerations associated with artificial intelligence, however,
we are in need of immediate legal reform to ensure the
Copyright Act contemplates the way in which technology is
changing.
• Should computers be recognised in their own right as potential
‘authors’ of creative works?
• Will we see the day where artificial intelligence is given it’s
own legal identity in order to be bound by our laws?

23. Questions?