As artificial intelligence (AI) has become increasingly capable of creating content, from writing novels, to generating music and art, the question of copyright authorship has come under scrutiny. Traditionally, copyright law has emphasised human creators, but AI is challenging this framework. So who is the author when AI is involved?
There are three key issues and challenges currently faced regarding AI and copyright:
- Ownership rights
- Authorship
- Training AI
This article focuses solely on authorship.
The legal landscape
AI-generated content does not fit neatly into existing copyright frameworks. The Copyright, Designs and Patents Act 1988 (CDPA) primarily protects works created by human authors, however what happens when AI is involved?
Section 9(3) of the CDPA, states that the author of a computer-generated work (CGW), (i.e. a literary, dramatic, musical or artistic work where there is no human author) is the person by whom ‘the arrangements necessary for the creation of the work are undertaken’. In practice, this is usually the AI programmer or the company that owns or operates the AI system. Yet, as AI evolves, it often operates with minimal human input, raising questions about whether this interpretation still holds. Can a AI programmer be the true “author” when AI systems generate works independently? Should AI-generated works be afforded the same protection as human-created works, or do they require a new category altogether?
Who is the author when AI is involved?
There is ongoing disagreement over whether works created by or with the assistance of AI can satisfy the “author’s own intellectual creation” originality test required for copyright protection. The legal concept of originality is currently based on human authors.
To obtain copyright protection, there are two potential human creators that could supply the necessary originality to satisfy the requirements for copyright:
The person who owns and/or created the AI system
It could be argued that developers of the AI system (or the company that owns it if applicable) fall within the scope of section 9(3) of the CDPA as being the person who made “the arrangements necessary for the creation of the work”.
In Nova Productions Ltd v Mazooma Games Ltd [2006], the court had to decide whether the actions of users playing a video game, which resulted in new images being generated by the game’s software, could be considered as the creation of new works eligible for copyright. The court ruled that the players were not authors, as their input was not artistic in nature and had not contributed any skill or labour of an artistic kind, nor undertaken any of the arrangements necessary for the creation of the frame images. Instead, the authorship remained with the game’s developers who created the software and made the arrangements necessary for the game’s functionality.
Although the case predates AI, it offers valuable insight into how the UK courts might approach authorship and copyright in AI-generated works cases.
The person entering prompts into an AI system
Depending on the complexity and specificity of the prompts used and the nature of the AI system these prompts could reflect some level of skill and originality, potentially qualifying as the “author’s own intellectual creation”. However, it remains uncertain whether this would extend to making the AI-generated output original as the output may still rely too heavily on the AI system’s training data (see our article ‘Training AI: Is it stealing or just learning by example?’ for further details).
AI and copyright protection in other countries
In 2019, in the case of Beijing Film Law Firm v Beijing Baidu Netcom Science & Technology Co Ltd, the Beijing Internet Court ruled that human involvement in production or creation is essential for copyright protection, effectively excluding AI software from being considered an author.
In 2022, the US Copyright Office refused protection for an artwork autonomously produced by an AI algorithm as authorship is seen in the US as an exclusively human endeavour, and non-human creations cannot be considered “original works of authorship.”
As noted above, the CDPA does allow copyright for computer-generated works in specified circumstances.
UK 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 meaningful comment or proposals for clarifying the authorship of computer-generated works, or even consider that this is in need of clearer guidance, which is desperately needed as AI systems become more and more prevalent in our day to day lives. Additionally, the government’s AI Opportunities Action Plan published in January made no mention of any copyright reforms.
UK copyright law does not currently recognise an AI system as an author (or even as a joint author) in its own right, but rapid advancements in AI’s capabilities means new guidelines and reforms are necessary to address the role of AI in authorship and copyright in order to provide certainty for all those involved in the creative process. Clear guidance remains to be achieved.
