21AD1907 CONCEPTS AND ISSUES UNIT-III

Accountability in Computer Systems,

Transparency, Responsibility and AI. Race and
Gender, AI as a moral right-holder.

1.Accountability in Computer Systems:

1.1 Definitions and the Unit of Analysis

To understand accountability in the context of AI

systems, we must begin by examining the various ways the
term is used and the variety of concepts to which it is meant to
refer. Further, we must examine the unit of analysis, or the
level of abstraction at which we consider the term to apply. As
with many terms used in the discussion of AI, different
stakeholders have fundamentally different and even
incompatible ideas of what concept they are referring to,
especially when they come from different disciplinary
backgrounds. This confusion leads to disagreement and debate
in which parties disagree not on substance, but on the subject
of debate itself. Here, we provide a brief overview of concepts
designated by the term “accountability”, covering their
relationships, commonalities, and divergences in the service of
bridging such divides.

1.2 Artifacts, Systems, and Structures:

Where does accountability lie? Accountability is

generally conceptualized with respect to some entity – a
relationship that involves reporting of information to that entity
and in exchange receiving praise, disapproval, or consequences
when appropriate. Successfully demanding accountability
around an entity, person, system, or artifact requires
establishing both ends of this relationship: who or what
answers to whom or to what? Additionally, to understand a
discussion of or call for accountability in an AI system or
application, it is critical to determine what things the system
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must answer for, that is, the information exchanged. There are
many ways to ground a demand for answerability and give it
normative force, and commensurately many types of
accountability: moral, administrative, political, managerial,
market, legal & judicial, relative to constituent desires, and
professional. AI systems intersect with all eight types of
accountability, each in different ways and depending on the
specifics of the application context.

Often, the unit of analysis referenced by someone discussing

accountability relates to their disciplinary training and
orientation: those interested in technology development,
design, and analysis are more likely to conceptualize the
system-as-embodied, situating algorithms and the agency of AI
systems within machines themselves, or with their designers
(i.e., technologists focus on the computers, the software, and
the interfaces, or the engineering process). Political, social, and
legal demands for accountability often focus around higher-
order units such as sociotechnical systems of artifacts
interacting with people or entire paradigms of social
organization (i.e., policy discussions are often focused on
systemwide outcomes or the fidelity of systems to
democratically determined goals, looking at the company or
agency involved and operative policy rather than the specific
tools in use or their performance characteristics). Often, all
units of analysis inform appropriate interventions supporting
accountability, as the information necessary to establish
system-level accountability may depend on metrics and
measures established at the technical level. Thus,
accountability must be part of the design at every scale, in
tandem. Related to the unit of analysis question is the issue of
causal and moral responsibility. When operationalizing
accountability, it is important that the relationship of
answerability corresponds either to its subject causing the
condition for which it is answerable or to its being morally
culpable for that condition. If no such link exists, or if the
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information conveyed via the accountability relationship does

not establish the link, then it is difficult to find the actor.

accountable. Operationalizing accountability in AI systems

requires developing ways to make such links explicit and
communicable. For example, the scapegoating of a component
or portion of the problem can impair agency of the involved
actors in establishing fault. Additionally, the problem of many
hands can serve as a barrier to accountability, as it did in the
Ariane 5 Flight 501 failure.11 While many hands were
responsible for that failure, this need not be the case:
alternative governance structures for such multifaceted, cross-
functional development teams could explicitly make leaders
responsible, providing an incentive for them to ensure
adequate performance and the avoidance of failures across
their organization, or use other mechanisms to make domains
of answerability clear at the level of functions or organizations.
For example, legal proceedings often hold organizations (say,
corporations) accountable at an abstract level, leaving the
determination of individual accountability to happen inside the
organization.12 But these as well can be their own sort of
scapegoating – accidents in autonomous systems are often
blamed on “human error” even when the human has little
meaningful control over what the system is doing.13
Accountability, Oversight, and Review If we conceptualize
accountability as answerability of various kinds, and we
understand who must answer, for what, and to whom the
answers are intended, then we have redeveloped the concept
of oversight, a component of governance where a designated
authority holds special power to review evidence of activities
and to connect them to consequences. Oversight complements
regulatory methods in governance, allowing for checks and
controls on a process even when the correct behavior of that
process cannot be specified in advance as a rule. Rather, an
oversight entity can observe the actions and behaviors of the
process and separate the acceptable ones from the
unacceptable ones ex post. Further, when rules exist, an
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oversight entity can verify that the process acted consistently

within them. Even when guidance is expressed in standards or
principles, oversight can apply those more abstract desiderata
in a given case, weighing considerations against each other
given scenario-specific facts and circumstances. In computer
science, and in engineering generally, the twin modalities of
guaranteeing compliance with a formally stated policy ex ante
and keeping records which provide for auditing ex post have
long been recognized as the major approaches to
understanding the fidelity of an artifact to goals such as
correctness, security, and privacy.14 However, the dominant
modality – whether building software and hardware controllers;
rockets and aircraft; or bridges and buildings – has been to
decide on a rule up front, to express this rule as a set of
requirements for the system, to implement the system so that
it is faithful to those requirements, and to verify that the
implementation comports with the requirements while also
validating that the requirements

1.3 Accountability as Accounting, Recordkeeping, and

Verifiability

The simplest definition of accountability is in

terms of accounting, that is, keeping records of what a system
did so that those actions can be reviewed later. It is important
that such records be faithful recordings of actual behaviors, to
support the reproducibility of such behaviors and their analysis.
Additionally, such records must have their integrity maintained
from the time they are created until the time they must be
reviewed, so that the review process reliably examines (and
can be seen by others to examine) faithful records that
describe what they purport to describe. Finally, it is important
that both the fidelity and the integrity of the records be evident
both to the overseer and anyone who relies on the overseer’s
judgements. Oversight in which the entity being reviewed can
falsely demonstrate compliance is no oversight at all.

1.4 Accountability as Responsibility

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Answerability includes not just the notion that answers

exist, but that individuals or organizations can be made to
answer for outcomes of their behavior or of the behavior of
tools they make use of. Responsibility ties actions or outcomes
to consequences. Authors in this space have identified three
major normative bases for this connection: causality, fault, and
duty – either the actions of the entity being held accountable
caused the outcome being considered, or the entity is somehow
culpable for the outcome irrespective of cause, or the entity is
ascribed an obligation to certain behaviors. All three types of
responsibility, and the relationship of any to accountability, are
subtle and bear unpacking. Operationalizing any one or all
three to make practical the necessary accountability
mechanisms and regimes is the subject of much work across
several disciplines.

1.5 Accountability as Normative Fidelity

The most abstract way that the term

“accountability” is used connects the answerability relationship
to broader norms, values, and fundamental rights. That is,
when a system should uphold a particular political, social, or
legal norm or be held to some moral standard, that
requirement is often couched in terms of accountability in the
sense of moral responsibility.29 For example, Bovens,
Schillemans, and Goodin observe that, in politics,
“‘[a]ccountability’ is used as a synonym for many loosely
defined political desiderata, such as good governance,
transparency, equity, democracy, efficiency, responsiveness,
responsibility, and integrity.”30 Political scientists often wonder
whether accountability continues to hold meaning, even when
operationalizing it is straightforward in the ever-growing
number of places where it is claimed as desirable.

1.6 Accountability as a Governance Goal

This notion of accountability as normative fidelity

demonstrates that accountability can serve as a governance
mechanism. Because accountability is straightforwardly
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achievable and enables judgements about complex and

contested values, it is a useful and tractable goal for
governance. Systems can be designed to meet articulated
requirements for accountability, and this enables governance
within companies, around governmental oversight, and with
respect to the public trust. Interested parties can verify that
systems meet these requirements. This verification operates
along the same lines that interested parties would use to
confirm that any governance is operating as intended.
Establishing lines of accountability forces a governance process
to reckon with the values it must protect or promote without
needing a complete articulation and operationalization of those
values. This makes accountability a primary value for which all
governance structures should strive.

1.7 Mechanisms for Accountability in AI

Of course, transparency is a useful tool in the

governance of computer systems, but mostly insofar as it
serves accountability. To the extent that targeted, partial
transparency helps oversight entities, subjects of a computer
system’s outputs, and the public at large understand and
establish key properties of that system, transparency provides
value. But there are other mechanisms available for building
computer systems that support accountability of their creators
and operators. First, it is key to understand what interests the
desired accountability serves and to establish the answerability
relationships: what agents are accountable to which other
agents (“accountability of what?” and “accountability to
whom?”), for what outcomes, and to what purpose? Once these
are established, it is clearer which records must be kept to
support interrogation of this relationship and to ensure that
blame and punishment can be meted out to the appropriate
agents in the appropriate cases. These records must be
retained in a manner that guarantees that they relate to the
relevant behavior of the computer system, representing the
relationship between its inputs, its logic, and its outputs
faithfully.
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1.8 Whither Accountability in AI?

Where do these ideas lead us for accountability in AI

systems? What ends does accountability serve and what are
the means to achieving them? Human values are political
questions, and reflecting them in AI systems is a political act
with consequences on the real world. We can (and must)
connect these consequences to existing political decision-
making systems by viewing the gap between system behaviors
and contextual norms in terms of accountability. For example, if
we want to know that an AI system is performing “ethically”,
we cannot expect to “implement ethics in the system” as is
often suggested. Rather, we must design the system to be
functional in context, including contexts of oversight and
review. Only then will we be able to establish trust in AI
systems, leveraging existing infrastructures of trust among
people and in institutions to new technologies and tools. Thus,
the prime focus of building ethical AI systems must be building
AI into human systems in a way that supports effective
accountability for the entire assemblage. While the need for
such practices is great, and while it is critical to establish what
engineered objects are supposed to do, including what is
necessary to satisfy articulated accountability relationships, the
actual reduction to practice of such tools in a way that
demonstrably supports accountability and other human values
remains an important open question for research. While many
tools and technologies exist, only now are we beginning to
understand how to compose them to serve accountability and
other values.

2.Transparency in Ethics and in AI

What Plato Did’ Transparency in ethics has at least three

aspects. One is visibility to others. If others can see what you
are doing, it makes it more likely you’ll behave well.
Philosophers have long known this. In Plato’s Republic,
Protagoras considered the Ring of Gyges, which magically
renders its wearer invisible. Possessed of this, Protagoras
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argued, one would of course commit all manner of wrong-doing

(Plato 1974). Conversely, much recent research lends support
to the view that even imagined scrutiny by others helps us do
the right thing (Zimbardo 2008). The second is
comprehensibility to others. Ethics demands a shared system of
justification. In the Republic, Plato infamously argued that those
in the top rung of society, the Philosopher Kings, dubbed the
‘gold’, had a grasp of moral truths but that the lower orders, or
those dubbed the ‘silver’ and ‘bronze’ in society, were
incapable of full access such knowledge. And a related aspect is
accountability to others. A corollary of Plato’s views on
knowledge and government is that, in governing those under
them, the ‘noble lie’ could be justified to keep the hoi polloi in
order. I take it that a view is abhorrent in any democratic
society. It goes without saying that you can’t claim to be
adequately addressing ethical questions, if you refuse to
explain yourself to rightly interested parties. Of course there
will often then be a further question about who such parties are
and what claims they have on you. What this means in AI:
Firstly, The very complexity of much of AI means that there is
often a particular question of transparency. If even its creators
don’t know precisely how an algorithm produced by machine
learning is operating, how do we know if it’s operating ethically
or not? The frequently posed fears that without our knowledge
we might be manipulated by powerful machines or very
powerful corporations armed to the teeth with the opaque
machinations of AI, gives a modern take on the Ring of Gyges
myth. Only, now it’s not actually a myth. Having specialist
knowledge, as professionals in AI have, does not entitle you to
‘lie’ to the people, nor to be in sole charge of questions that
concern them; quite the reverse. Such specialist knowledge
should mandate a duty to explain. However, the question of
how much transparency is legitimate in respect to certain
activities is an open question. Only a fool wants the security
services of their country to be fully transparent given the
existence of real enemies; nonetheless drawing the line may be
hard. Commercial companies also have reasons for secrecy.
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Which brings us on to the next point: Secondly, there are many

powerful actors involved in AI whose activities may affect
billions of others; perhaps then, in some ways, a technological
elite with access to arcane knowledge—AI professionals—are
the new ‘Philosopher Kings’. How they handle ethics, how they
explain themselves, and whether they manage any system of
accountability and dialogue, will be critical to any claim they
might make to be truly concerned with ethics.

3. Race and Gender in AI:

From massive face-recognition-based surveillance and

machine-learning-based decision systems predicting crime
recidivism rates, to the move towards automated health
diagnostic systems, artificial intelligence (AI) is being used in
scenarios that have serious consequences in people's lives.
However, this rapid permeation of AI into society has not been
accompanied by a thorough investigation of the sociopolitical
issues that cause certain groups of people to be harmed rather
than advantaged by it. For instance, recent studies have shown
that commercial face recognition systems have much higher
error rates for dark skinned women while having minimal errors
on light skinned men. A 2016 ProPublica investigation
uncovered that machine learning based tools that assess crime
recidivism rates in the US are biased against African Americans.
Other studies show that natural language processing tools
trained on newspapers exhibit societal biases (e.g. finishing the
analogy "Man is to computer programmer as woman is to X" by
homemaker). At the same time, books such as Weapons of
Math Destruction and Automated Inequality detail how people
in lower socioeconomic classes in the US are subjected to more
automated decision making tools than those who are in the
upper class. Thus, these tools are most often used on people
towards whom they exhibit the most bias. While many technical
solutions have been proposed to alleviate bias in machine
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learning systems, we have to take a holistic and multifaceted

approach. This includes standardization bodies determining
what types of systems can be used in which scenarios, making
sure that automated decision tools are created by people from
diverse backgrounds, and understanding the historical and
political factors that disadvantage certain groups who are
subjected to these tools.

3.1 DATA-DRIVEN CLAIMS ABOUT RACE AND GENDER

PERPETUATE THE NEGATIVE BIASES OF THE DAY

Science is often hailed as an objective discipline in

pursuit of truth. Similarly, one may believe that technology is
inherently neutral, and that products that are built by those
representing only a slice of the world’s population can be used
by anyone in the world. However, an analysis of scientific
thinking in the 19th century, and major technological advances
such as automobiles, medical practices and other disciplines
shows how the lack of representation among those who have
the power to build this technology has resulted in a power
imbalance in the world, and in technology whose intended or
unintended negative consequences harm those who are not
represented in its production1. Artificial intelligence is no
different. While the popular paradigm of the day continues to
change, the dominance of those who are the most powerful
race/ethnicity in their location (e.g. White in the US, ethnic Han
in China, etc.), combined with the concentration of power in a
few locations around the world, has resulted in a technology
that can benefit humanity but also has been shown to
(intentionally or unintentionally) systematically discriminate
against those who are already marginalized.

3.2 USING PAST DATA TO DETERMINE FUTURE

OUTCOMES RESULTS IN RUNAWAY FEEDBACK LOOPS

An aptitude test designed by specific people is

bound to inject their subjective biases of who is supposed to be
good for the job, and eliminate diverse groups of people who do
not fit the rigid, arbitrarily defined criteria that have been put in
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place. Those for whom the tech industry is known to be hostile

will have difficulty succeeding, getting credit for their work, or
promoted, which in turn can seem to corroborate the notion
that they are not good at their jobs in the first place. It is thus
unsurprising that in 2018, automated hiring tools used by
Amazon and others which naively train models based on past
data in order to determine future outcomes, create runaway
feedback loops exacerbating existing societal biases. A hiring
model attempting to predict the characteristics determining a
candidate’s likelihood of success at Amazon would invariably
learn that the undersampled majority (a term coined by Joy
Buolamwini) are unlikely to succeed because the environment
is known to be hostile towards people of African, Latinx, and
Native American descent, women, those with disabilities,
members of the LGBTQ+ community and any community that
has been marginalized in the tech industry and in the US. The
person may not be hired because of bias in the interview
process, or may not succeed because of an environment that
does not set up people from certain groups for success. Once a
model is trained on this type of data, it exacerbates existing
societal issues driving further marginalization.

3.3 UNREGULATED USAGE OF BIASED AUTOMATED

FACIAL ANALYSIS TOOLS:

Predictive policing is only one of the data-driven

algorithms employed by US law enforcement. The perpetual
lineup report by Clare Garvie, Alvaro Bedoya and Jonathan
Frankle discusses law enforcement’s unregulated use of face
recognition in the United States, stating that one in two
American adults are in a law enforcement database that can be
searched and used at any time17. There is currently no
regulation in place auditing the accuracy of these systems, or
specifying how and when they can be used. The report further
discusses the potential for people to be sent to jail due to cases
of mistaken identity, and notes that operators are not well
trained on using any of these tools. The authors propose a
model law guiding government usage of automated facial
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analysis tools, describing a process by which the public can

debate its pros and cons before it can be used by law
enforcement.

3.4 AI BASED TOOLS ARE PERPETUATING GENDER

STEREOTYPES

While the previous section has discussed manners in which

automated facial analysis tools with unequal performance
across different subgroups are being used by law enforcement,
this section shows that the existence of some tools in the first
place, no matter how “accurate” they are, can perpetuate
harmful gender stereotypes. There are many ways in which
society’s views of race and gender are encoded into the AI
systems that are built. Studies such as Hamidi et al.’s Gender
Recognition or Gender Reductionism22 discuss this in the
context of automatic gender recognition systems such as those
studied by Buolamwini and Gebru, and the harms they cause
particularly to the transgender community.

3.5 POWER IMBALANCE AND THE EXCLUSION OF

MARGINALIZED VOICES IN AI :

The weaponization of technology against certain groups, as

well as its usage to maintain the status quo while being touted
as a liberator of those without power, is not new to AI. In Model
Cards for Model Reporting, Mitchell et al. note parallels to other
industries where products were designed for a homogenous
group of people27. From automobiles crash tested on dummies
with prototypical adult “male” characteristics resulting in
accidents that disproportionately killed women and children, to
clinical trials that excluded many groups of people resulting in
drugs that do not work or disproportionately negatively affect
women, products that are built and tested on a homogenous
group of people work best for that group.

3.6 THE DESIGN OF ETHICAL AI STARTS FROM WHO IS

GIVEN A SEAT AT THE TABLE :
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Ethical AI is not an abstract concept, but one that is in dire

need of a holistic approach. It starts from who is at the table,
who is creating the technology, and who is framing the goals
and values of AI. As such, an approach that is solely crafted,
led, and evangelized by those in powerful positions around the
world, is bound to fail. Who creates the technology determines
whose values are embedded in it. For instance, if the tech
industry were not dominated by cis gendered straight men,
would we have developed automatic gender recognition tools
that have been shown to harm transgender communities and
encourage stereotypical gender roles? If they were the ones
overrepresented in the development of artificial intelligence,
what types of tools would we have developed instead? If the
most significant input for developing AI used in the criminal
justice system came from those who were wrongfully accused
of a crime and confronted with high cash bail due to risk
assessment scores, would we have had the algorithms of today
that disproportionately disenfranchise Black and Brown
communities in the US? If the majority of AI research were 20
funded by government agencies working on healthcare rather
than military entities such as the Defense Advanced Research
Projects Agency (DARPA), would we be working towards drones
that identify persons of interest?

3.7 EDUCATION IN SCIENCE AND ENGINEERING NEEDS TO

MOVE AWAY FROM “THE VIEW FROM NOWHERE”:

If we are to work on technology that is beneficial to all of

society, it has to start from the involvement of people from
many walks of life and geographic locations. The future of who
technology benefits will depend on who builds it and who
utilizes it. As we have seen, the gendered and racialized values
of the society in which this technology has been largely
developed have seeped into many aspects of its
characteristics. To work on steering AI in the right direction,
scientists must understand that their science cannot be
divorced from the world’s geopolitical landscape, and there are
no such things as meritocracy and objectivity. Feminists have
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long critiqued “the view from nowhere”: the belief that science
is about finding objective “truths” without taking people’s lived
experiences into account. This and the myth of meritocracy are
the dominant paradigms followed by disciplines pertaining to
science and technology that continue to be dominated by men.

4. ARTIFCIAL INTELLIGENCE AND MORAL RIGHTS :

Whether copyrights should exist in content

generated by an artifcial intelligence is a frequently discussed
issue in the legal literature. Most of the discussion focuses on
economic rights, whereas the relationship of artifcial
intelligence and moral rights remains relatively obscure.
However, as moral rights traditionally aim at protecting the
author’s “personal sphere”, the question whether the law
should recognize such protection in the content produced by
machines is pressing; this is especially true considering that
artifcial intelligence is continuously further developed and
increasingly hard to comprehend for human beings. This paper
frst provides the background on the protection of moral rights
under existing international, U.S. and European copyright laws.
On this basis, the paper then proceeds to highlight special
issues in connection with moral rights and content produced by
artifcial intelligence, in particular whether an artifcial
intelligence itself, the creator or users of an artifcial intelligence
should be considered as owners of moral rights. Finally, the
present research discusses possible future solutions, in
particular alternative forms of attribution rights or the
introduction of related rights.

Artifcial Intelligence (AI) is often considered as a

disruptive technology. The implications of this technology are
not confned to the industrial sector, but do extent to numerous
artistic felds, like the creation of music or works of art (Bridy
2016; Niebla Zatarain 2018; Schönberger 2018). As the
technology promises great advances in a wide variety of
contexts and areas of research, massive initiatives and
investments are being undertaken; this also applies to the
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political level (European Commission 2018b). However, the use

of AI can have far reaching consequences and many problems
are still not fully explored. This relates, for instance, to the
technology’s philosophical and economic implications, but also
to the legal framework that governs its use. Widely discussed
legal questions include liability issues, especially in the context
of autonomous driving (Collingwood 2017), data protection
(Kuner et al. 2018) as well as the protection of AI and its
products (Abbott 2016; Vertinsky and Rice 2002) under
copyright law (Grimmelmann 2016a, b). This also relates to
machine learning (Surden 2014). The copyright-related
literature has, as far as can be seen, focused on the question
whether economic rights exist or should exist in AI-generated
content. However, the relationship between AI and moral rights
has not been studied to a comparable extent (Miernicki and Ng
2019; Yanisky-Ravid 2017). Against this background, this
research analyzes the relationship between AI and moral
copyrights. For the sake of completeness, we will also allude to
economic rights in AI-generated content, where appropriate.

4.1 Legal Background

Moral rights acknowledge that authors have personal

interests in their creations and the corresponding use that is
made of them. These interests are conceptually diferent from
the economic or commercial interests protected by the author’s
economic rights which are typically understood to enable the
author to derive fnancial gain from her creation (Rigamonti
2007). Moral rights thus aim to protect the non-economic
interests of the author; this is often justifed with reference to a
“presumed intimate” bond of the creator with his or her
creations (Rigamonti 2006). In this light, moral rights protect
the personality of the author in the work (Biron 2014). Not
surprisingly, diferent jurisdictions have varied takes on this
school of thought and do not interpret this ideology to the same
extent. In this regard, it is generally said that common law
jurisdictions are more hesitant to granting moral rights than
civil law jurisdictions (Rigamonti 2007; Schére 2018). This
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might explain why—even though moral rights can be found in

various jurisdictions throughout the world—the degree of
international harmonization with regard to moral rights is rather
low (Rigamonti 2006). The general principles are set forth by
the Berne Convention (WIPO 1979); its article Art 6bis states
that “the author shall have the right to claim authorship of the
work and to object to any distortion, mutilation or other
modifcation of, or other derogatory action in relation to, the
said work, which would be prejudicial to his honor or
reputation.” As can be seen, the Berne Convention provides for
two distinct moral rights: The right of attribution and the right
of integrity of the work (Rigamonti 2006; cf. U.S. Court of
Appeals 1st Circuit 2010). The right of attribution generally
includes the right to be recognized as the author of a work, so
that users of the work as well as the public in general will
associate the work with its creator (Ciolino 1995), which is also
linked to a certain kind of social recognition and appreciation;
recognition for one’s work is sometimes deemed a “basic
human desire” (US Copyright Ofce 2019). The right to integrity,
in turn, refers to the author’s interest not to have his or her
work be altered drastically or used in a prejudicial way.
Whether there is an infringement of the right to integrity is very
dependent on the individual case as well as, importantly, the
context of the use. Under this rule, moral rights could be
infringed if, for instance, a song is rearranged or used for a
purpose completely diferent from the author’s intentions
(Ricketson and Ginsburg 2006). Moral rights came in special
focus in the U.S. legal regime with the accession of the United
States to the Berne Convention (Ciolino 1995). At that time,
legislative changes were not made because the moral rights
contained in the convention were already, according to
Congress’s opinion, provided for a sufcient extent under U.S.
law (U.S. Copyright Ofce 2019). Later, moral rights were
explicitly recognized in the Visual Artist Rights Act (17 U.S.C. §
106A); however, the scope of the act is relatively narrow (U.S.
Copyright Ofce 2019; cf. U.S. Court of Appeals 1st Circuit 2010).
In fact, the transposition of the Berne Convention’s
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requirements into U.S. law as regards moral rights has been a

long source of controversy (Ginsburg 2004; Rigamonti 2006). In
any event, however, it is fair not to only look at the U.S.
Copyright Act, but also at other laws on the federal level as well
as common law claims that can arise under state law, for
instance (Rigamonti 2007; U.S. Copyright Ofce 2019).

4.2 Protection of AI-generated content

The key question of much of the copyright-

related debate on AI is whether or to what extent copyrightable
works require or should require human action. Under the Berne
Convention, there is no clear defnition of the concept of
“authorship”. However, it is strongly suggested that the
convention only refers to human creators (Ginsburg 2018;
Ricketson 1991), thereby excluding AI-generated content from
its scope. This means that the minimum standard set forth by
the Berne Convention only applies to works made by humans.
U.S. copyright law afords protection to “original works of
authorship” (17 U.S.C. § 102(a)). This language is understood
as referring to creations of human beings only (Cliford 1997;
U.S. Copyright Ofce 2017); accordingly, the law denies
copyright protection for the “creations” of animals, the so-
called “monkey selfe” case (U.S. District Court Northern District
of California 2016) 3 being a notable example for the
application of these principle in the courts. This equally applies
to content produced by machines (U.S. Copyright Ofce 2017)
or, in the present context, AI-generated content (Abbott 2016;
Yanisky-Ravid 2017). In consequence, such content is not
copyrightable, unless a human author is found to have
contributed creative input. Since there is no general EU
copyright code but rather several directives with their
respective scope, it is not easy to distill the concept of
authorship under EU law. However, it is possible to infer some
guidance from the language of the diferent directives. On the
one hand, the “own intellectual creation” standard is set forth
in respect of databases, computer programs and photographs
(European Parliament and Council of the European Union 1996,
21AD1907 CONCEPTS AND ISSUES UNIT-III

art. 3(1); European Parliament and Council of the European

Union 2006, art. 6; European Parliament and the Council 2009,
art. 1(3); see also European Parliament and the Council 2019,
art. 14). On the other hand, the “Copyright Directive”
(European Parliament and the Council 2001) refers to “authors”
and “works”. With regard to frst standard, the ECJ establishes
the connection to the author’s personality (European Court of
Justice 2011a; European Court of Justice 2012), a line of
argumentation that can also be found in connection with the
“Copyright Directive” (European Parliament and the Council
2001) (European Court of Justice 2008; European Court of
Justice 2011b). Accordingly, many commentators conclude the
human authorship is required under European copyright law
(Handig 2009; Ihalainen 2018; Miernicki and Ng 2019; Niebla
Zatarain 2018).

4.3 AI as the owner of moral rights

The concept of AI as a possible owner falls on

the fact that AI is not simply an automatic system but could be
an autonomous system. While the development of an AI
system, including data mining, machine learning and training
processes, are normally supervised by humans, recent
advancements in AI technology have enabled AI to learn from
other AIs, in a process called “kickstarting”.4 The “black box” of
AI (Knight 2017), where developers of AI networks are unable to
explain why their AI programs have produced a certain result,
further augments the belief of autonomy of AI and its capability
of having its own persona and decisionmaking abilities.
However, it should be noted that any discussion centering on AI
as copyright owners is essentially a discussion de lege ferenda.
This is because for machines to be granted rights, some form of
legal personality would be required (Bridy 2012; Yu 2017). It is
our impression that this is not the case for many jurisdictions in
Europe, America and Asia. In turn, whether machines should be
granted some form of legal personality is in fact discussed on
diferent levels. This relates, of course, to academic literature
(Günther et al. 2012; Paulius et al. 2017; Solaiman 2017), but
21AD1907 CONCEPTS AND ISSUES UNIT-III

also to legislative initiatives (Committee on Legal Afairs

(2015).5 However, often times the discussion in this context
centers on liability issues which are a diferent question from
the grant of moral copyrights (Miernicki and Ng 2019); the
attribution of liability is not the same as allocating exclusive
rights, although the former must certainly be considered when
acknowledging AI as legal persons. This is especially true if a
legislation granting AI the status of a legal person (similar to a
company or a partnership) would apply across other legislations
unless precluded by that specifc legislation otherwise.

4.4 Creators or users of an AI as the owners of moral

rights

Should humans that interact with the AI—i.e.,

the creators or the users—should have moral rights in the
content produced by the AI? Where software is a tool used by
humans, the general rules apply: Where the programmer
contributes creative efort, she is awarded a copyright the
extent of which is determined by national law. However, the
situation is different where the AI produces the content without
original input contributed a human being (Miernicki and Ng
2019). In order to analyze this question, it is helpful to
conceptualize the diferent roles of the AI and the involved
humans as follows: The programmer creates the AI and holds,
generally speaking, a copyright in a literary work (cf. WTO
1994, Art 9 et seq.). Thus, under ordinary circumstances, the AI
constitutes copyrightable subject-matter and is referred to
hereinafter as “frst generation work” because it directly stems
from the programmer’s creative efort (cf. Yanisky-Ravid and
Velez-Hernandez 2018). Going a step further, if this work
(software) generates new content, we could refer to this
content as a “second generation work” since—provided that
the programmer did not intervene at all—it only indirectly
stems from the programmer’s creative work.10 Now the
question arises whether the creator has a special non-economic
21AD1907 CONCEPTS AND ISSUES UNIT-III

connection to the “second generation work” that could be

protected by moral rights. To answer this question, it is useful
to recall the fundamental rationales of moral rights: these
rights are granted because the work represents “an extension
of the author’s personhood” (Rigamonti 2006); the author’s
personal traits are, so to say, “embodied” in the work (cf.
Rosenthal Kwall 2010). Conversely, in absence of this creative
endeavor, there is a lack of the intimate connection between
the creator of the AI and the produced content that moral rights
have traditionally sought to protect.

4.5 A related rights approach?

In light of the foregoing, we believe that granting moral

rights in AI-generated content is, in principle, not compatible
with the traditional rationale of these rights. Apart from
alternative models to the attribution right that should be
considered, it remains to discuss whether or to what extent
there should be economic rights and how such rights would ft in
the copyright system. This is in many respects a question of
whether such rights can produce benefcial incentives (either for
investing in the development of AI or publishing its results), a
question which has been discussed at length (Davies 2011;
Glasser 2001; Grimmelmann 2016a, b; McCutheon 2013; Perry
and Margoni 2010; Samuelson 1986; Yu 2017); we have already
made some arguments above that would also apply to
economic rights and do not delve further into this debate in this
research. For the present purposes, and from the moral rights
perspective, it would be a regulatory perspective to grant—
similar to the solution found in the UK—certain economic rights
but no or only limited moral rights; this resembles the legal
situation with regard to related rights (Miernicki and Ng
2019).15 Since such a “middle-ground solution” might be more
easily compatible with the diferent views that exist on moral
rights, e.g., with regard to their scope, transfer or ownership by
legal persons (Miernicki and Ng 2019; cf. Denicola 2016; Ory
and Sorge 2019), it might be more likely to fnd a consensus for
the international harmonization of this matter. However, also a
21AD1907 CONCEPTS AND ISSUES UNIT-III

related rights solution runs the risk of triggering a potential

proliferation of protected content.