AI Authors and Copyright: Should We Give Legal Rights to Robot Writers?
Generative Artificial Intelligence tools like ChatGPT and Midjourney are pushing the boundaries of what it means to be an "author" for the purpose of copyright law
Last week we discussed whether AI companies infringed copyrights when they scraped websites for training data.
This week we look at the other side: can the outputs of AI models be copyrighted?
As of Right Now, U.S. Law Says Only Human-Authored Works Can Be Copyrighted
Under the U.S. Code, copyright law applies only to “original works of authorship.” (17 U.S.C. 102). And U.S. Courts have consistently held that a “work of authorship” means a creation of a human author. This “humans only” rule was recently put to the test when Kristina Kashtanova (@icreatelife) collaborated with AI image generation tool Midjourney (@midjourney) to write a graphic novel, Zarya of the Dawn. Specifically, Kashtanova wrote the text and used Midjourney to create the images. The U.S. Copyright Office (“USCO”) allowed her to register the written text that she had created, but ruled that the images could not be copyrighted because they were “not the product of human authorship.”
To their credit, in the aftermath of this decision, the USCO launched a new initiative to “examine the copyright law and policy issues raised by artificial intelligence (AI), including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training.” The office also issued new “registration guidance” Under this new guidance, an author seeking to register a work that includes some content generated AI is supposed to distinguish between the part that the human authored from the part generated by the AI:
For example, an applicant who incorporates AI- generated text into a larger textual work should claim the portions of the textual work that is human-authored. And an applicant who creatively arranges the human and non-human content within a work should fill out the ‘‘Author Created’’ field to claim: ‘‘Selection, coordination, and arrangement of [describe human-authored content] created by the author and [describe AI content] generated by artificial intelligence.’
Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence
In the case of, say, Zarya of the Dawn, this guidance seems relatively clear: the human wrote the text and the AI created the images. But what about situations where, for example, ChatGPT wrote the first draft, and then a human rearranged it, edited, and revised it?
The Rest of World: Split Over Whether Software Can Be An Author
The EU and Australia Give Rights Only to Human Authors Not Software (and Canada — maybe? — agrees)
For what it’s worth, many, but not all, jurisdictions outside the U.S. agree, for now at least, that only a work created by a human author can be copyrighted. (See Andres Guadamuz (@technollama) , Artificial intelligence and copyright). I claim no expertise in European law here, but I’m told that the principal EU case on this is Infopaq International v. Danske Dagblades Forening, Case C-5-08, July 16, 2009 (ECJ) holding that copyright only applies to works that reflect the “author’s own intellectual creation” which, in turn, is understood to mean that the work must reflect the author’s personality.
The Federal Court of Australia reached a similar result Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16 (2 March 2012), holding that a work created by a software program “was not an original work in the copyright sense”
The situation in Canada seems uncertain at the moment, and the Canadian Parliament is engaged in a consultation.
The UK, India, Ireland, and New Zealand Say That When Software Creates a Work, the Programmers are the Authors
But several jurisdictions, notably the UK, New Zealand, and India, take essentially the opposite view, and hold that the “author” of a work generated by software is the programmer (or programmers) who created the software:
“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.”
U.K Section 9(3) of the Copyright, Designs and Patents Act (CDPA).
Watch For New Statutes and Codes
Given the strong interest in these issues from all sides, we can expect to see lots of statutes and regulations passed on these topics soon. What will it mean if, in the coming years, AI copyrights are accepted in some jurisdictions but rejected in others?
Things are moving fast. Watch this space. We’ve set up a page on our website where you can keep up to date with developments:
https://lawsnap.mywikis.wiki/wiki/AI_as_Author
Feedback is always appreciated.