Intellectual property issues in user agreements for image creation services using artificial intelligence technology

Zabaykalov Andrey Pavlovich PhD in Law Associate Professor; Department of Public Law Disciplines; MIREA - Russian Technological University 20 Stromynka str., Moscow, 107996, Russia kmiap-zabaykalov@mail.ru Other publications by this author

Batova Mariya Alekseevna PhD in Law Associate Professor; Department of Civil Law and Process; Federal State Budgetary Educational Institution of Higher Education 'Russian Academy of National Economy and Public Administration under the President of the Russian Federation', Lipetsk branch 398050, Russia, Lipetsk region, Lipetsk, Internatsionalnaya str., 3 kochkina-ma@ranepa.ru

Introduction

Modern technologies often develop so rapidly that the legal framework, formed in the process of fairly lengthy procedures, simply does not have time to respond in a timely manner. Their peculiar "lag" is observed ^{[1, p. 22]}. In addition, a number of technologies are so revolutionary that it is impossible, difficult or controversial to apply traditional legal techniques to them. Finally, there is a tendency in the world to expand the practice of cross-border relations, which makes it more difficult to determine the legal system whose norms are to be applied. At the same time, international legal regulation is also in its infancy. As a result, some relationships actually arise, change and terminate, if not outside the legal field, then in conditions of clearly insufficient regulation.

A striking example of a sphere where a similar situation has developed is the relationship between the creation of works of science, literature and art using artificial intelligence technology, in particular, the creation of images (works in graphic format).

On the one hand, there are currently programs capable of creating works of consumer and even commercial value. Moreover, the number of works created in this way will only increase in the future. On the other hand, the circulation of such works faces uncertainty on a variety of legal issues: from recognition of authorship to liability for possible violations.

In such a situation, developers and owners of artificial intelligence algorithms propose to compensate for legal gaps and contradictions on a contractual basis. In particular, before starting to work with an artificial intelligence system, the user is asked to approve a user agreement regulating a number of key issues.

Such agreements are of interest to legal science for a number of reasons. In particular, in the future, the norms and principles formulated in them may become customs, a kind of "lex mercatoria", and also be in demand by legislators as a basis for the development of normative acts. This seems to be an important step towards building a full-fledged "information state" in Russia ^{[2, p. 68]}.

At the same time, it is impossible to ignore the fact that user agreements are formulated by developers and owners of artificial intelligence systems, i.e. they are deliberately aimed at protecting, first of all, their rights and interests. The user can't actually change anything. Moreover, the owners of artificial intelligence systems are often large commercial organizations, and users are ordinary individuals. In such circumstances, it is difficult to talk about the equality of the actual capabilities of the parties to the legal relationship. That is, user agreements should be considered critically: in the context of compliance with the commercial and other essential interests of the owners of artificial intelligence systems, but with the mandatory protection of the interests of users as a weak side.

Due to the novelty of the subject of study, the development of related problems is in the initial stage. Among the few monographic works, P.M. Morkhat's research "Artificial Intelligence: a legal view" can be noted ^[3]. At the same time, the topic is quite popular. In particular, such authors as K.M. Belikova, O.S. Bolotaeva, E.V. Vavilin, E.A. Voynikanis, G.A. Gadzhiev, M.A. Egorova, G.P. Ivliev, V.O. Kalyatin, A.S. Kiselyov, D.A. Korolkova, P.M. Morkhat, E.P. Sesitsky and others devoted their publications to her. However, most experts focus either on the issue of authorship of works obtained as a result of the use of artificial intelligence technologies, or on the legal status of the results. Such a source of regulation as user agreements is practically not considered.

The research methodology is based on traditional principles, techniques and approaches for legal science: dialectics, analysis, synthesis, analogy, deduction, etc.

1. The User Agreements in question

For the analysis, agreements on the use of three services for the creation of images (works in graphic format) using artificial intelligence technology were used:

- terms of use of the Masterpiece service (Terms of use of the Masterpiece service. – URL: https://yandex.ru/legal/shedevrum_termsofuse / (date of access: 06/12/2024).) (hereinafter referred to as the "Masterpiece Agreement");

- user agreement on the use of the Kandinsky Service (User Agreement on the use of the Kandinsky Service– URL: https://www.sberbank.com/common/img/uploaded/files/promo/kandinskiy-terms/kandinskiy-terms-of-use.pdf (date of application: 06/12/2024).) (hereinafter referred to as the "Kandinsky Agreement");

- the user agreement of the site fusionbrain.ai (Website User Agreement fusionbrain.ai . – URL: https://fusionbrain.ai/static/fusion/docs/agreement.pdf (date of application: 06/12/2024).) (hereinafter referred to as the "Fusion Brain Agreement").

Such a choice is due, on the one hand, to the popularity of these services, and, on the other hand, to their recognition of the jurisdiction of the Russian Federation. Of course, consideration of similar foreign services is of significant interest, however, it is associated with the need for a separate consideration of the applicable law.

The Masterpiece service is provided by Yandex LLC, which directly follows from the agreement.

It follows from the agreement on the use of the Kandinsky Service that it is provided by Sberbank of Russia PJSC. At the same time, the operation of this service is possible, including after going to the site fusionbrain.ai , which has its own user agreement, to which the Administration of the FusionBrain Platform, represented by the ANO Institute of Artificial Intelligence, is a party. That is, on the one hand, the Kandinsky Service and the Fusion Brain Platform are objectively related, but, on the other hand, they are formally supported by different entities.

All services are provided for free or have a free version, which has been reviewed.

2. Approaches to the issue of authorship in relation to works created using artificial intelligence technology

One of the key issues that arises when considering the relations associated with the creation of works using artificial intelligence technologies is the question of the authorship of such works.

Without going into a detailed analysis, which is simply impossible to carry out within the framework of this work, it should be noted that currently the following main answers to it are proposed in doctrine and practice:

- the author recognizes the user of the artificial intelligence system ^{[4, pp. 410-411; 5, p. 317]};

- the author recognizes the developer of the artificial intelligence system ^{[6, p. 252]};

- the author recognizes artificial intelligence itself (its carrier) ^{[7, p. 359]};

- the results created with the use of artificial intelligence are removed from the scope of legal protection, which makes authorship lose its importance ^{[8, p. 20; 9, p. 157]}.

There are also other options for determining authorship and various combinations of the proposed conceptual solutions ^{[10, p. 17; 11, p. 181-221; 12, p. 37-47; 13, p. 38-42]}.

The current Russian legislation, in particular, Article 1257 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation (Part four) dated December 18, 2006 No. 230-FZ // Collection of Legislation of the Russian Federation. 2006. No. 52 (part I). Article 5496.) (hereinafter - the Civil Code of the Russian Federation) assumes that the author of a work can only be a person "whose creative work it was created". This approach is also used by foreign law enforcement agencies ^{[14, p.16]}. In relation to the situation under consideration, this means that copyrights to works created using artificial intelligence must inevitably arise from users of a particular technology (service).

The author's recognition of artificial intelligence developers is hindered by the lack of their will to achieve a specific end result. The developer obviously cannot know what will be generated by his product. In addition, with this approach, it is quite difficult to recognize and ensure the implementation of copyrights from the point of view of legal technology. For example, how can I specify the author if it is often a fairly large team that changes over time?

The author's recognition of artificial intelligence itself is hindered by the lack of legal personality of artificial intelligence in Russian law. The program cannot be a bearer of rights and obligations, and cannot be responsible. Although the idea of recognizing certain elements of legal personality for artificial intelligence is discussed in legal science ^{[15; 16; 17]}.

As for the ideas of denying works created using artificial intelligence protection within the framework of the copyright institute, they cannot be implemented without changing the legislation. After all, any work is subject to protection "regardless of the merits and purpose of the work, as well as the way it is expressed" (Article 1257 of the Civil Code of the Russian Federation). At the same time, the lists of objects to which copyrights do not apply, as well as objects that are not objects of copyright, are set as closed (paragraphs 5-6 of Article 1259 of the Civil Code of the Russian Federation). Judicial practice proceeds from the fact that the results obtained with the help of technical means in the absence of the creative nature of human activity should not be recognized as objects of copyright. However, at the same time, it is assumed that the results of intellectual activity are created by creative work (paragraph 80 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 "On the application of Part Four of the Civil Code of the Russian Federation" // Rossiyskaya Gazeta. 2019. May 6.). That is, in each case, it should be determined whether creativity took place. More precisely, the interested person must prove that there was no creative work. At the same time, even the lack of novelty, uniqueness and (or) originality in itself does not matter.

All three agreements reviewed generally provide for a similar approach. However, the issue of copyright is not clearly and unambiguously regulated in them.

The agreements have sections on intellectual property rights ("Use of generated materials. Intellectual Rights" - in the Masterpiece Agreement, "Terms of Intellectual Rights" - in the Kandinsky Agreement, "Intellectual Property" - in the Fusion Brain Agreement"). However, they primarily specify the rights in relation to software, exclusive rights to the results of artificial intelligence activities, as well as the rights that the user grants to persons providing the relevant service.

At the same time, in the Kandinsky Agreement (clause 5.2.) and the Fusion Brain Agreement (clause 6.4.), there is a rule that the user provides persons implementing the service with a non-exclusive license to use the results of intellectual activity. The term "license" is not used in the Masterpiece Agreement (clause 3.3.), but in accordance with it, the user also "agrees that the Images, Videos and Texts published by him may be used by Yandex for any purpose and in any way at his discretion throughout the world without time limit ...". This wording generally assumes the same consequences as the license agreement.

This very formulation of the question indicates the recognition of authorship for the user. After all, taking into account clause 1 of Article 1286 of the Civil Code of the Russian Federation, "the author or another copyright holder" can grant the right to use the work. And the user has no grounds to be recognized as a "different copyright holder". To do this, the user must obtain the appropriate rights from the "author or other copyright holder" with their personification.

Moreover, clause 1.10 of the Kandinsky Agreement establishes the concept of "Generated Content", which is proposed to mean "objects ... generated (created) By the User using the Service ..., which are the results of intellectual activity / means of individualization or are not such, the rights ... to which belong to the User." That is, all rights to works created with the help of artificial intelligence originally belong to the user.

A similar definition is given in clause 1.1 of the Fusion Brain Agreement.

3. Transfer and limitation of rights in relation to works created using artificial intelligence technology

As a general rule, the rights to a newly created work arise from its author (Article 1228 of the Civil Code of the Russian Federation). In this regard, the recognition of users of artificial intelligence technology by the authors of the generated image entails the appearance of their entire scope of authority in relation to such a work. And it is the authors-users who must determine the further legal fate of the result of their creative activity. The Kandinsky Agreement (clause 5.7.) and the Fusion Brain Agreement (clause 6.2.) also explicitly recognizes the exclusive right to the treated results for the user. However, the user agreements considered provide for the automatic transfer of a number of rights to the owners of the services, as well as the restriction of some of the author's rights in relation to their works.

It should be noted that the practice of automatic (pre-agreed) transfer of rights from the author of a work to other persons is itself known to Russian intellectual property law. In particular, it is expressly provided for in Article 1288 of the Civil Code of the Russian Federation (in relation to works created as part of the execution of an author's order agreement) and Article 1295 of the Civil Code of the Russian Federation (in relation to official works). But such a transition in the above cases, as a general rule, is associated with the receipt of payment by the author in one form or another. In the case of the user agreements under consideration, the relations of the parties are gratuitous. Thus, the automatic transfer of a number of rights to the owners of services, as well as the restriction of some of the author's rights in relation to works created using artificial intelligence technology, raises questions, if not objections.

As mentioned above, the Kandinsky Agreement and the Fusion Brain Agreement expressly recognize the exclusive right to the result (generated content) for the user who created the work using the corresponding service. There is no such clause in the Masterpiece Agreement.

At the same time, both the Kandinsky Agreement (clause 5.2.) and the Fusion Brain Agreement (clause 6.4.) explicitly provide that the user, by the very fact of using the service, provides the persons who own the service with a non-exclusive royalty-free license to use the work received. Moreover, the license is valid for the entire period of existence of the exclusive right.

The Masterpiece Agreement also contains a number of provisions that can be interpreted as license agreements granting the rights to use the generated image in favor of Yandex LLC. For example, paragraph 4 of clause 3.3 can be understood in this way: "The User also agrees that the Images, Videos and Texts published by him may be used by Yandex for any purpose and in any way at his discretion throughout the world without time limit, including in order to improve the operation of Yandex algorithms and technologies, for placement in the Service, as well as in other Yandex services, in advertising and marketing materials to attract attention to the Service, other Yandex services and products and/or services of third parties, as well as on other resources, channels and pages owned by Yandex."

However, the Masterpiece Agreement is as neutral as possible on this issue. Emphasizing the copyright of users in relation to requests, tags, photos and images used by the user to create images, videos or text (clause 3.2.), it does not characterize the general legal status of the result obtained. The above provision of the agreement can be interpreted both as a license (the author authorizes the use of the work in this way) and as an informational one (the user is only informed that the work can be used in this way).

The specific ways of using images that service owners seek to secure for themselves differ in user agreements. The following methods are indicated::

- reproduction of the work;

- bringing the work to the public;

- import for distribution purposes;

- processing (modification) of the work;

- practical implementation.

- public display of the work;

- distribution of the work;

- communication of the work on the air, by cable and retransmission;

- storage of the work.

That is, almost all types of use of the work provided for in paragraph 2 of Article 1270 of the Civil Code of the Russian Federation are mentioned.

Moreover, the Fusion Brain Agreement (clause 6.4.) implies that the user agrees in advance to change the created image, not only by the Administration of the Platform, but also by other persons with the permission of the Administration of the Platform. This provision concerns not only the use of a work as a manifestation of an exclusive right, but also the right to inviolability of the work (Article 1266 of the Civil Code of the Russian Federation).

At the same time, it is interesting to note that the right to use generated images in itself is objectively important for services, since it is organically linked to their essence. Thus, the Masterpiece Agreement emphasizes the possibility of using the generated content "in order to improve the operation of algorithms and technologies."

At the same time, the economic component of the services' activities cannot be ignored. In particular, the Kandinsky Agreement separately fixes the possibility of the service to use images "in advertising, marketing, and informational materials." A similar right of Yandex is enshrined in the Masterpiece Agreement (clause 3.3).

In general, taking into account the complexity and cost of developing and commissioning artificial intelligence technology, as well as the gratuitous nature of the services in question, such granting of the right to use the generated images on the basis of a non-exclusive gratuitous license should be recognized as a proportionate and fair decision. Specialists also support this approach ^{[18, p. 109]}. However, a number of provisions of user agreements on exclusive rights are debatable.

Thus, the list of entities to which a license is granted is uncertain.

According to the Kandinsky Agreement, the license is granted to the "Bank" (PJSC Sberbank of Russia). At the same time, provision is made for the possibility of sublicensing, i.e. granting the right to use the work to third parties (clause 5.2.3.). In addition, "reproduction, storage and recording in computer memory" of images can be carried out both by the Bank and "its affiliates and on servers designated by the Bank."

According to the Fusion Brain Agreement, the license is granted to the "Software Copyright Holder", who can act as the Administration of the FusionBrain Platform itself, as well as "third parties who have granted the Administration the right to use their intellectual property objects." In other words, in the latter case, it is simply impossible to establish counterparties in advance.

The Masterpiece Agreement offers the most free model for using images and other works created using artificial intelligence technology. It generally assumes that the user agrees that the Images published by him can be used not only by Yandex, but also by "other Users of the Service". However, we are talking only about images published on the service, and only about their use as covers for texts that are also published on the service. However, in fact, we are talking about an attempt to impose some kind of analogue of an open (Article 1286.1 of the Civil Code of the Russian Federation) or free (paragraph 5 of Article 1233 of the Civil Code of the Russian Federation) license.

Also, the owners of the services are taking measures aimed at limiting the use of created images by users themselves.

In particular, by accepting the terms of the Masterpiece Agreement, the user agrees that he will use the generated images "for personal non-commercial purposes" (clause 3.3.). Deviations from this rule are allowed only subject to "prior agreement with Yandex".

It seems that such a legal construction would be appropriate if the sole copyright holder in relation to the images was the owner of the service. However, since the Masterpiece Agreement, as mentioned above, bypasses this issue, there are reasonable doubts about its compliance with current legislation. It seems that this is equivalent to a hypothetical ban on camera manufacturers using non-professional models of their products for commercial photography.

A similar rule is contained in clauses 3.1 and 6.2 of the Kandinsky Agreement. However, it restricts commercial use not of the generated image, but of the service itself.

The Masterpiece Agreement, in addition, includes a ban on using generated images "for the purpose of testing or training models working using artificial intelligence technologies" (p. 3.6.). It does not allow the use of artificial intelligence results for the development of "competing" technologies, software products and models and the Kandinsky Agreement (p. 4.4.7.).

As for the Fusion Brain Agreement, on the contrary, it emphasizes the right to use the platform for any ("both commercial and non-commercial") purposes (clause 2.3.).

Experts also speak in favor of the free use of works for "machine learning" ^{[19, p. 54; 20, p. 108]}.

Another ambiguous aspect is no longer related to the exclusive right, but to the right to a name.

In accordance with paragraph 1 of Article 1265 of the Civil Code of the Russian Federation, the author's right to a name is understood as the right to use or authorize the use of a work under his own name, under an assumed name (pseudonym) or without specifying a name (anonymously). This right refers to non-property rights. It is inalienable and indescribable. It cannot be abandoned.

Experts also recognize the existence of "moral rights" in the digital environment, despite the difficulties with their adaptation ^{[21, p. 155]}.

However, the Kandinsky Agreement (clause 5.4.) obliges users to indicate their first and last names when distributing the created image.

It is also interesting that the Fusion Brain Agreement (clause 6.5.) allows (recommends) specify the source of the generated image ("created using a neural network ___________"). While the Kandinsky Agreement (clause 5.4.) considers such an indication as a user's obligation ("The User may distribute … Content with mandatory ... placement on copies of ... Content of information about the use of the Service when creating such … Content". Moreover, it is supposed to be possible to introduce other additional "rules and instructions for labeling and/or attribution" of the results of the activity of this service. The Masterpiece Agreement does not regulate this aspect.

Conclusion.

The analysis of the considered user agreements of services for creating images (works in graphic format) using artificial intelligence technology allows us to conclude that they can be interpreted as recognizing the users of the corresponding service as the author of the image created using artificial intelligence. However, this interpretation is copyrighted and may not reflect the position of the service owners themselves.

The agreements also provide for the automatic transfer of a number of rights to service owners. First of all, we are talking about providing service owners with a non-exclusive royalty-free license for a wide range of ways to use the work. At the same time, the list of methods and the approach to their description differs. In addition, certain agreements provide for the actual restriction of the rights of user authors to use the works they have created. They provide for agreements and norms that can be regarded as aimed at restricting non-property rights.

In general, granting the services the right to use the generated images on the basis of a non-exclusive royalty-free license should be recognized as a proportionate and fair decision. However, some other provisions of the user agreements relating to intellectual property rights are debatable.