Human rights and algorithms: copyright brute force will not work in the USA, Australia, Russia and the EU

6 min

My thoughts about the failure of copyright brute force caused a stormy reaction and a lot of questions. Questions keep coming. In the process of discussion, many similar discussions arise, which takes a tremendous amount of time. Due to the fact that I could not answer everyone, as well as many received fairly short and not too detailed answers, I decided to do this in a separate article.

I want to note that the answers to questions regarding legislative documents, on the basis of which I have formed my point of view, will be priority, that is, I will try to focus on the legislative framework that defines copyright in different countries of the world and examples from legal practice.

I recall that in a previous article I expressed the opinion that brute force, with which it was possible to create 68 billion combinations of notes, does not solve the so-called “The problem of identical melodies.” Using the fact of the identity of a combination of sounds of a certain frequency will not work in the courts as evidence of copyright infringement. So, under the cut answers to the most significant and interesting questions about the previous article.

The most common questions can be formulated as follows: On the basis of what laws do I conclude that in the USA and other countries the results of brute force (i.e., combinations of sounds created by innovators) will not be recognized as subject to copyright?

U.S. law

It should be noted that in the United States, in addition to the basic federal laws, there are acts in force in individual states, as well as numerous judicial precedents. However, at the federal level, there is a law defining copyright objects – this is 17 USC § 102. According to this act:

“Works that are not“ original copyright works in any fixed form on a tangible medium ”are not subject to copyright protection. At 17 U.S.C. § 102 describes that copyright protection does not apply to ideas, procedures, processes, systems, etc. ”

In accordance with this law, a number of case-law decisions have been made in the Naruto v. Slater case, better known as the “monkey selfie case”. The case has been repeatedly considered in American courts, the key to resolving the issue was the position of the US Copyright Bureau. In substantiating their expert decision on December 22, 2014, the bureau specialists explained that:

“Works not created by people are not objects of copyright.”

The last episode of the precedent took place in January 2016, when U.S. District Judge William Orrick discontinued the lawsuit by PETA, which defended the objectivity of a photograph taken by a monkey. Judge Orrick dismissed the monkey’s claim of copyright status, stating that:

“Under the laws of the United States, copyright can only be the results of human activities.”

Thus, in the United States there is both a federal legislative norm and a precedent determining that only a product of human activity can be recognized as a copyrighted object by law.

Dear daiver19 wrote:

“I’m not a lawyer, I can’t comment on this. But the creator of this project is a lawyer, and according to him this project makes sense. “I doubt that you are a connoisseur of American copyright, so I trust him more.”

I can answer that I and District Judge William Orrick have big doubts about the legal competencies of the creators of the project. To trust Damien Riel, daiver19 can, of course, be more, but I would strongly recommend against using his legal services in the USA, at least in matters of copyright.

Australian law

Similar regulations with the United States apply in Australia. This country inherited the case law tradition from Great Britain. The most significant episode in Australian law was the case of Acohs Pty Ltd v. Ucorp Pty Ltd. It examined the possibility of obtaining copyright for the HTML object created by the program.

By a decision of the federal court, it was recognized that:

“The code written by the program does not have an author and is not subject to copyright, since it is not a product of a person’s creative activity, and therefore does not fall under the laws of Australia on the protection of copyright.”

A similar verdict was issued in Telstra Corporation Limited v Phone Directories Company Pty Ltd., where the objects generated by the program were removed from consideration in the lawsuit, citing the absence of the actual author.

Russian legislation

In Russia, the source of copyright is the Civil Code, or rather, Chapter 70. According to Article 1259 “Objects of Copyright”, “works of science, literature and art” are recognized as objects of copyright.

The law does not give a clear interpretation of what exactly is a work of art, however, the same article states that they cannot be:

“Ideas, concepts, principles, methods, processes, systems, methods, solutions to technical, organizational or other problems.”

The authors of the algorithm, which accumulated billions of “melodies”, position it as a way to solve copyright problems, but not as a work of art. They directly declare that we are talking about the result of an automated process. However, if we strictly follow the letter of the law, the result of the process is not the process itself, and accordingly, we really cannot directly exclude this result on the basis of this paragraph.

However, the chapter of the Civil Code, also article 257, clearly states that:

“The citizen is recognized as the author of a work of science, literature or art, the creative work of which it is created” (here is the answer to the question why only a person can be the author of an object of copyright). “

Accordingly, it is in relation to the citizen, i.e. living person, there is a presumption of creativity, guaranteed by law. In our case, we are talking about an algorithm, and accordingly, with respect to the automatic process, the presumption of creativity does not work and its result cannot be a priori recognized as the result of creative work. It should be based on the decision of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court No. 5/29, which is significant in interpreting the Civil Code, which determines the presumption of creativity as follows:

“The subject of copyright … is only the result that is created by creative work … Unless otherwise proven, the results of intellectual activity are assumed to be created by creative labor.”

In our case, the fact of generating by automatic calculations proved that combinations of sounds are the result of an automated computing process of non-intellectual activity and non-creative work, which means that it is fair to say that these combinations are not subject to copyright. Indirectly, this is also confirmed by the fact that the algorithm cannot, according to the law, act as the author, and the author of the algorithm itself does not participate in the creation of calculation results in any way due to the automation of the process.

Moreover, in accordance with the Russian Civil Code, even parts of works can be recognized as objects of law only:

“If by their nature they can be recognized as an independent result of the author’s creative work.”

But based on the description of creating combinations, we can’t even recognize them as part of the generator program, since they are the result of its work. It should be noted that the algorithm itself, written by a person, is certainly an object of copyright and the result of creative work, but not the results of its calculations .

European Union

The Legal Committee of the European Parliament considers that authorship can only be assigned to a person. However, EU legislation regarding product of program activities is less clear than in Australia or the United States. Despite the lack of precedents, nuances are possible in the EU when the authorship of “works of art” created by a robot or program will be recognized by its creators. Lawyers in the EU write that such rights will be recognized in relation to AI products.

But our case is different. Thus, according to the norms of the Directive on copyright in the Single Digital Market and earlier, Directive 2004/48 / EC and Directive 2001/29 / EC, it will be necessary to prove that there was a creative act that directly affected the work, which cannot be done with automated generation of a combination of sounds.

United Kingdom

Perhaps the only country where the described brute force could theoretically work will be Great Britain. UK copyright law has similar rules to the EU, but it is also known that case law is in force in the UK. I conclude the possibility of brute force efficiency in Britain based on the fact that in Nova Productions Ltd v. Mazooma Games Ltd the court ruled that:

“Some elements of the game generated by the program belong to its developer as copyright objects.”

Meanwhile, it should be borne in mind that the process of automatic generation of game elements in this case assumed rather active participation of the creator of the algorithm in the form of changing settings, due to which a predictable result was created. In the case of the generation of billions of combinations of sounds, no activity was done to change the settings, the program simply calculated the combinations and converted them to midi. For this reason, it is impossible to guarantee that the British court accepts “melodies” as objects of law.

Very short about patents

There were many questions about patents. There is one short answer to them. The object of patent law is not a work of art, but an invention, respectively, in this situation, patent law is not applicable as such.

Briefly about digital art and AI

Dear Kanut gave an example digital artcreated by AI, neural networks, etc. There is a fundamental difference, which is that neural networks are built on a mathematical principle that is close to the processing of data by nerve cells, and such complexes require training, like other types of AI, and their activity is somewhat close to conscious creativity.

The issue of authorship of AI works neither in international law, nor in national laws has yet been resolved, except, possibly, the PRC, there is a fact of recognition of authorship of an article written by AI (Tencent v. Shanghai Yingxun Technology Company).

But a comparison with a simple, essentially arithmetic, algorithm is not correct, since it is obvious that it does not have intelligence (neither artificial nor natural), is not capable of learning and any kind of creativity.


I sincerely hope that the argument in the form of direct references to laws and precedents in the courts is now sufficient and will not raise questions. And once again I emphasize that I am not a supporter of the existing copyright system, but I am sincerely convinced that attempts to deceive this system are futile. It is necessary to change it qualitatively. The brute force of melodies showed the absurdity of the claims of many musicians based on the coincidence of notes, but the results from the database cannot become evidence in court in most countries of the world.

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