Almost every industry is considering the potential of generative AI to enhance productivity and creativity. However, there are some important, unresolved questions, including in particular whether the output of generative AIs attracts copyright, and who owns and can enforce that right.
If such outputs do not attract copyright, and can therefore be copied at liberty, their value (particularly for the creative industries) is likely to be significantly diminished. If they do attract copyright, however, how does this affect traditional creative processes? We have seen actors’ strikes in Hollywood, for example, largely based around the concern that the advent of AI will devalue or even eliminate the need for human creatives.
It is important to understand that this is a different question to that of whether the output from generative AI infringes the rights of others, which we explore in another article [LINK]. A work could, in theory, both infringe copyright and benefit from copyright itself. We also consider elsewhere [LINK] whether inventions created by AI can be protected by patents.
THE NATURE OF COPYRIGHT
Copyright usually protects original literary, dramatic, musical or artistic works, and secondary works such as broadcasts or sound recordings. Copyright therefore covers incredibly wide-ranging subject matter, including text, code (as a literary work), music, video, imagery, and even choreography.
In the EU, “original” means that a work is the expression of the author’s intellectual creation. Post-Brexit, it is a little unclear as to whether the UK has retained the EU definition of originality, or whether it has returned to the old UK requirement that a work must comprise “skill, labour or judgement”. Either way, however, it appears important that there is some human input into a work for it to attract copyright.
The UK adds a further level of complexity. Its copyright law, governed by the 1988 Copyright Designs and Patents Act, provides that:
In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.
This suggests that a computer generated work can attract copyright, and whoever arranged for the creation of that work is its author (and therefore the first owner of copyright). However, in the intervening 45 years between the drafting of this provision and today, what it means for a work to be computer generated has changed significantly, and the application of that provision to today’s technology is unclear.
There are, therefore, two key questions:
- Is the work generated by the AI sufficiently original as to attract copyright; and
- Does a work require a human author in order to attract copyright?
The answers to these questions are currently unclear, but they can provide some guidance as to what creators using AI should do to give themselves the best chance of arguing that copyright subsists in their creations.
Most importantly, creators should ensure that they do not simply take the output from an AI without adding their own twist and creative input into it. There is an analogy here with the famous “London Bus” case, in which copyright was held to subsist in a photograph of a bus crossing Westminster Bridge largely on the basis that the creator had used Photoshop to exaggerate the colouring of the bus and to blow out the sky.
Creators should also ensure that they record their process by which they reached their finished work, including the prompt used to generate the initial output, and changes made to that output.
Finally, and importantly, creators should ensure that they review the terms and conditions of the generative AI which they are using, to ensure that these terms do not provide that the owner of the generative AI retains all rights in output works, and that there are no restrictions on the use which may be made of the output work.
Interested in learning more about AI innovation? See related articles in our new AI Hub.
Potter Clarkson’s specialist electronics and communications team includes a number of attorneys with extensive experience in software, and AI inventions. If we can help you with an issue relating to the protection and commercialisation of innovation in any area Artificial Intelligence, please get in touch.
