This marks our second blog post concerning Artificial Intelligence (‘AI’). In contrast to our initial release, which contained a broad overview of AI and the myriad risks and potentials it ushers into our daily lives, this article takes a closer look at the intricate topic of AI and copyright ‘authorship’.

We consider the recent case of Stephen Thaler v. Shira Perlmutter in the US District Court of Columbia. This landmark case resulted in a significant federal court ruling which, in the main, was in alignment with the position of the US Copyright Office – that creations produced exclusively by artificial intelligence lack the essential element of ‘human authorship’ and thus do not qualify for copyright protection.

In 2019, inventor Stephen Thaler submitted a copyright application for the artwork “A Recent Entrance to Paradise”, attributing authorship to his AI system, the “Creativity Machine”. He argued that he should be considered the owner of the AI, akin to an employee under the usual principle that an employer owns the copyright in employee’s works created in the course of employment. The Copyright Office disagreed, stating that copyright protection only applies to works created by humans, not autonomously by AI.

The court dismissed the claimant’s view that copyright law could encompass AI authorship due to its adaptability to new technologies. The judgment emphasized that human authorship and creativity remain fundamental prerequisites for copyrightability, regardless of technological advancements.

Even in high-tech art, also known as ‘hi-tech art’ or ‘digital art,’ ‘human involvement’ and ‘creative control’ are required for copyright protection. High-tech art refers to artworks that incorporate advanced technology as an integral part of their creation and/or presentation. Such ‘works’ challenge traditional definitions of art and explore the possibilities offered by modern technology, and can encompass a wide range of mediums and techniques. A few examples are:

  1. Digital Art: This includes digital paintings, drawings, and 3D renderings created using software and digital tools. Artists use computers, graphic tablets, and software or 3D modelling programs to create their works.
  2. Virtual Reality (VR) and Augmented Reality (AR) Art: Artists can use VR and AR technologies to create immersive and interactive art experiences. Viewers can explore virtual environments or interact with computer-generated elements superimposed onto the physical world.
  3. 3D Printing and Sculpture: 3D printing technology enables artists to create intricate and three-dimensional sculptures or objects that may be challenging to produce with traditional methods.

The court recognised that we are entering uncharted territory in copyright law, and there are numerous unresolved issues around the level of human involvement required to designate an AI system user as the ‘author’ of a generated work. Obvious issues are how should we go about:

  1. Defining the extent of protection granted to the resulting image.
  2. Evaluating the originality of AI-generated works when these systems may have been trained on undisclosed pre-existing works.
  3. Exploring the optimal utilization of copyright to encourage creative endeavours involving AI.

Several jurisdictions in addition to the US, such as Spain, Switzerland, Austria, Italy and Germany, also assert, as a general rule, that only works created by a human can be protected by copyright.

In the UK the position is likely to develop over time, but the local act – the Copyright Designs and Patents Act 1988 (‘CDPA’) in theory grants copyright protection to computer-generated works even when no human creator is involved. According to the law, when a work is “generated by computer in circumstances where there is no human author”, the author of such a work is “the person by whom the arrangements necessary for the creation of the work are undertaken”.

Under the CDPA, the general rule is that the first owner of copyright is the ‘author’. The definition of the author varies depending on the type of work; for example, for sound recordings, the author is considered to be the producer of the sound recording, meaning the person who organized the necessary arrangements for creating the sound recording. In the case of films, the author is both the producer and the principal director of the film, and again, the ‘producer’ is the person who made the necessary arrangements for producing the film.

In cases of computer-generated works where no human author exists, the person overseeing the creation process is recognised as the author because they are deemed to be closest to the creation of the work being undertaken. Such works encompass, not only computer programs but also, computer-generated industrial or architectural drawings (although it is rare in practice for there to be no human involvement). The question is, whether literary, dramatic, musical or artistic works created by AI can meet the “author’s own intellectual creation” originality test, and thereby, whether AI can be classed as an ‘author’ in the first instance. Without any legislative intervention, it is likely to be difficult to argue that a work created by AI could be ‘original’ under this test.

In October 2021, the IPO began consulting on potential changes to patent and copyright laws related to AI-generated technology. Options included; introducing a new narrower and shorter duration right for such works, which would coexist with other rights, adjusting copyright protection for computer-generated works and enhancing text and data mining (TDM) rules. Two conflicting views emerged. The technological sector believes the copyright to AI-generated content should belong to users, whereas the creative sector wants this content to be excluded from ownership entirely.

On 28 June 2022, the government decided not to change the copyright protection for such works, citing a lack of evidence of harm, and early-stage AI use. They committed to ongoing review for future adjustments. In March 2023, following Sir Patrick Vallance’s Pro-Innovation Regulation of Technologies Review, the government tasked the IPO with creating a voluntary code of practice to guide the use of copyrighted material as in AI models. On 29 June 2023, the IPO announced that work had started to develop a voluntary code of practice for copyright and AI.

It is clear that the UK government seeks a global role in AI development, having hosted an AI safety summit led by Prime Minister Rishi Sunak this November 2023. The central issue is defining human authorship for AI-created content, with the UK’s current provision offering only partial guidance. In the future, it is possible that AI could be considered the author, with AI developers as owners, potentially leading to a concentration of power among a few AI companies, dominating copyrighted materials and creating a dystopian scenario. Developing a clearer authorship model is important for copyright in AI-generated content, driven by policy considerations like economic incentives for AI development.

In essence, the issues of authorship and originality represent paramount challenges, and their resolution plays a critical role in safeguarding AI-generated works. We haven’t even touched on the extent to which AI can infringe copyright!

If you need guidance or if you have any inquiries regarding the topics addressed in this blog, please contact Partner Simon Miles or any member of our Intellectual Property team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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