Artificial intelligence (AI) is reshaping industries and creative processes, but it also presents new challenges for intellectual property law. In the UK, where copyright law has traditionally protected the rights of human copyright owners, the rise of AI-generated content has created uncertainties about who owns the rights to AI-generated works?
There are three key issues and challenges currently regarding AI and copyright:
- Ownership rights
- Authorship
- Training AI
This article focuses solely on Ownership.
Authorship vs Ownership
The author/creator of the work is usually the first owner of any copyright in it, however there are some exceptions to this. It may not always be obvious who owns the copyright, and it might not be the person you think, for example:
- Work created by employees in the course of their employment – this will usually be automatically owned by their employer (subject to any agreement to the contrary).
- Work commissioned – If you commission a person or organisation to create a piece of work for you, unless you agree otherwise, the work will be owned by the commissioned party.
- Work of joint ownership – where two or more people collaborate together, the work will be jointly owned where their contributions are inseparable, and the work is intended to form a unified whole. Each co-author will have equal rights as if they were the sole author.
Accordingly, authorship does not guarantee automatic copyright ownership. Ownership usually depends on the relationship between the parties involved and any express agreement as to who owns the copyright. It is important for a creator to know if they are the owner of a copyright work as this grants them exclusive rights to use and exploit their work (including the rights to copy, distribute, and adapt it) and the right to stop others doing so without permission.
The legal landscape and establishing rights of AI-generated works
Under the Copyright, Designs and Patents Act 1988 (CDPA), UK copyright law protects “original” works, typically created by a human. Under the current legal framework, it is not possible for joint authorship to exist in a co-creation by a human and an AI system. Establishing the ownership position of AI generated works is difficult as there is currently no clear guidance or definitive answer. It requires a careful assessment on the particular facts of each individual case, taking into account the following:
- Originality – To be considered original, the work must have been independently created by the author, using the author’s skill, labour and judgement. AI-generated works could be deemed to lack originality as AI systems are often trained on copyrighted works, therefore the output of an AI system may contain elements of another person’s work or it may copy it altogether, which might fail the originality test.
- Author – According to section 9(3) of the CDPA, for computer-generated works, “the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” This may be the developer who created the AI system or the user who entered the prompts into the AI system. It is arguable that the owner of the AI output will be the developer of the AI software as the person who created and trained the software to create specific outputs (or the company who owns the AI system if the developer is working for the company as an employee). On the other hand, if the prompts entered by a user lead to outputs satisfying the “author’s own intellectual creation test”, then there is a good argument for the user to be considered the owner of any copyright in the outputs.
- AI System Licence Terms – Ownership of computer-generated works may also be impacted by the terms and conditions of the AI systems being used. AI developers may have terms specifying they are the owner of any copyright in works generated by their AI system, regardless of the later actions of users. Developers may use licensing agreements to control users’ ownership of any outputs, although an AI system will be less attractive to use if users are limited in exploiting the works they create.
What can users do to establish ownership of AI-generated works?
There is no clear guidance in the law on establishing ownership, however maintaining clear records of the user’s work and activity in relation to the AI system in creating the output (to support originality and authorship) and any further work carried out on the output, should help.
At the same time, users should take care to check the terms and conditions of any AI system to ensure their outputs are not automatically owned by the AI developer, or their rights limited.
Government action
The government recently ran its ‘Copyright and AI: Consultation’, however its main focus was the training of AI, and sadly failed to provide any solutions to the ownership dilemma with AI generative works: “The UK currently provides copyright protection for purely computer-generated works, but it is not clear that this protection is widely used, or that it functions properly within the broader copyright framework. The government seeks views on potential reform to protections for computer-generated works.” It appears that the government itself recognises the need to tackle this continuing challenge.
The future of AI and copyright in the UK
With AI technologies evolving rapidly, UK copyright law faces pressure to adapt. The government needs to put in place definitive guidelines to address the ownership dilemma in AI generated works, whether this is done by creating a new category of rights for AI-generated works or by amending the existing law. The government is taking proactive steps to keep up with AI and its effect on copyright (see our article Training AI: Is it stealing or just learning by example?), but more needs to be done to bring clarity for creators, rightsholders and AI developers.
