Creating works using Gen AI has important implications for copyright law. Questions need to be considered such as, can works generated by AI have copyright protection? Who owns the copyright in works created using Gen AI? Is it the individual providing the prompts, the AI provider, the company licensing the AI software, or the AI itself?
Can copyright only reside with a human creator?
In UK law under S.178 of the Copyright, Designs and Patents Act 1988 there is copyright protection for computer-generated works where there is no human author of the work. Currently however copyright can only reside with a human creator, not a machine or a non-human. In S.9 (3) the Act states 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." The copyright protection in this instance is reduced to fifty years S.12 (7) and no moral rights S.79 (2) can apply to the work.
Are Gen AI created works original?
There has been much debate around the world with many articles and papers written about whether AI-generated works should be given copyright protection. If copyright does indeed reside with the human creator and not the AI, then does the selection of prompts inputted into the software to generate an output meet the threshold of 'originality'? In the UK copyright is a property right which subsists in original literary, dramatic, musical or artistic works. It also previously needed "authors to show that they have invested substantial and independent 'effort, skill and time', to create. However after Infopaq [case law]* the UK had to follow Court of Justice of the EU's (CJEU) approach to originality, which views 'originality' as the expression of [an] author's own intellectual creation" ** Do Gen-AI art works show sufficient expression of the 'author's own intellectual creation' to satisfy the requirements for copyright protection?
Zarya of the Dawn
United States copyright law only protects works created by a human author, non-humans such as AI are excluded. In February 2023 the US Copyright Office (USCO), Library of Congress ruled against copyright registration for the AI generated content of a graphic novel (Zarya of the Dawn). They ruled that whilst the text of the work by Kristina Kashtanova and the selection and arrangement of the images and text were the product of human authorship and could be protected by copyright, the individual images were not. They described that the process of prompts to direct a Gen AI software to produce an image is not the same as that of a human artist, writer or photographer using an 'assistive tool' such as 'Adobe Photoshop'. Whilst additional prompts can influence the subsequent images "the process is not controlled by the user because it is not possible to predict what Midjourney will create ahead of time." USCO concluded that the process Kashtanova described made it clear "that it was Midjourney - not Kashtanova - that originated the "traditional elements of authorship" in the images." *** Unlike 'assistive tools', users of Midjourney do not have the same kind of control of the initial or subsequent images. They likened prompts to suggestions rather than orders "similar to the situation of a client who hires an artist to create an image with general directions as to its contents".
*Case law 2009 C-5/8 Infopaq International A/S v Danske Dagblades Forening
** Söğüt Atilla, Dealing with AI-generated works: lessons from the CDPA section 9(3), Journal of Intellectual Property Law & Practice, Volume 19, Issue 1, January 2024, Pages 43–54, https://doi.org/10.1093/jiplp/jpad102
*** United States Copyright Office - Sarya of the Dawn registration
