INSIGHT

Artificial intelligence and copyright – time to rethink authorship?

Industrials Intellectual Property Patents & Trade Marks

In brief

The use of artificial intelligence for good and evil has long been the subject of fiction. However, such stories are becoming less far-fetched, raising the issue of who or what is the author of computer-created works, and whether those works are entitled to copyright protection. Senior Associate Alexia Mayer takes a closer look.

Fiction vs fact

In the popular children's book The 39-Storey Treehouse, author/illustrator duo extraordinaire Terry and Andy seek to meet their publisher's deadline and solve their book-writing problems forever, by inventing a 'Once-upon-a-time machine'. By setting the dial to 'milk-snortingly funny' and making some choices regarding characters and setting, the Once-upon-a-time machine should write and illustrate the book, leaving Andy and Terry free to procrastinate to their hearts' content. Now, such stories about artificial intelligence (AI) are progressively seeming more likely.

Creativity has traditionally been considered a purely human endeavour, and machines a mere tool used to implement human-made decisions. Increasingly, however, machines are being used to predict human behaviour (eg based on Facebook activity) and make design choices, thanks to machine learning software. In recent times, we have seen a portrait generated by an algorithm and a data set of thousands of portraits sell for a vast sum at auction; an AI-created Rembrandt-esque portrait debut in Amsterdam; local news stories and novels generated by AI; and even an AI-designed NASA space antenna. There are clear benefits to businesses in harnessing AI to make product development cheaper, quicker, and possibly even superior, but the rise of AI poses IP issues that could have a significant impact on business' ability to protect what they have developed.

Who is the author?

In Australia, the concept of authorship under the Copyright Act 1968 (Cth), and as developed by the courts, is one of human intellectual effort. When machines are used by a person merely as a tool (such as the use of a word processor to create a literary work), this is unproblematic, but what about works created by AI that could be interpreted as lacking a human author? It is at this end of the continuum between use of a machine as a tool and a machine actually making significant independent decisions in the creation of a work that issues of copyright become murky. There is a real risk that works created by AI that involve a lower degree of human decision making might be found by a court to be free of copyright, and hence able to be copied by competitors, regardless of the significant human investment in developing the AI that generated the works.

Similarly, under US law it appears that a human author is required. In the widely reported case of a monkey taking a selfie, the U.S. Court of Appeal for the Ninth Circuit disregarded the commercial settlement reportedly reached between the parties and chose to rule on PETA's appeal, holding that although the monkey had constitutional standing to bring a claim, he lacked standing to file his copyright suit because animals were not expressly authorised to file copyright infringement suits under the statute.

If AI-created works are to be protected under copyright law, who should be deemed to be the author? The person who uses the AI to create a work, even if all they did was switch on the machine? The person who created the AI (eg by coming up with the algorithms)? Or, most controversially, the machine itself, which could then perhaps constitute an exception to the rule that the author of a copyright work is the first owner of any copyright subsisting in it (ie in a similar manner that an employer is the owner of any copyright subsisting in works created by an employee under the terms of their employment contract)? Potentially complicated issues of joint ownership and the appropriate duration of copyright protection afforded to AI-created works could also arise.

In some jurisdictions, attempts have been made to expressly adapt copyright law to deal with computer-created works. For example, the New Zealand Copyright Act 1994, which provides that the author of a work is the person who creates it, deems the creator of a computer-generated literary, dramatic or artistic work to be 'the person by whom the arrangements necessary for the creation of the work are undertaken'. The same wording is used in the UK legislation; it remains to be seen whether Australia follows suit.

What's next?

Clearly, there are important public policy and practical issues to be grappled with. Given the exciting technological developments in AI, the issues of authorship and copyright in AI-generated works will need to be addressed in Australia sooner rather than later.