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An AI for art: Copyright considerations for artificial intelligence

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Rajvinder Jagdev

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Rajvinder Jagdev is of counsel at IP law firm Powell Gilbert, specializing in high-tech patent litigation and has advised on a range of IP matters, particularly in the electronics, telecommunications and computer software sectors.

Artificial intelligence is driving the information revolution and its presence is increasingly commonplace — for example, in smart speakers, self-driving cars, social media monitoring and healthcare technology, to name but a few.

The U.K. government recently released its response to its consultation on “Artificial Intelligence and Intellectual Property: copyright and patents.” In summary, the position (for now) is that the U.K. law will remain unchanged with respect to copyright protection in computer-generated works, as will the law as it relates to AI authorship for copyright works and AI inventorship for patents.

Numerous complex questions remain for regulators, lawyers, programmers, creatives and inventors, particularly in light of the rapid, continual rise of AI. This column addresses a small but significant aspect of this — how AI should be considered in the context of copyright protection and authorship under U.K. law as it presently stands.

 

We briefly set out the differences between AI inventorship in the context of patents, and AI authorship in copyright law. We then consider how the U.K. Court might approach the issue of AI authorship and joint authorship and conclude with some useful considerations for AI programmers and authors to have in mind.

AI inventorship versus AI authorship

Pursuant to s.13 of the Patents Act 1977 (“PA”), U.K. patent applications must have human applicants. Furthermore, only the deviser of the invention can be named as an inventor (s.7 PA). These two requirements were examined by the U.K. Intellectual Property Office, the U.K. High Court and the U.K. Court of the Appeal in the prominent series of Stephen Thaler trials, where, most recently, the Court of Appeal upheld the rejection of a patent application identifying an AI (DABUS) as the inventor, ruling that a human inventor is required.

The EPO Board of Appeal also recently published their written decision (J 8/20) on this question, following the U.K. Court’s decision, as did the Full Court of the Federal Court of Australia, who reversed the decision of the lower court and held that DABUS cannot be recognized as an inventor under Australian patent law. Appeals to the U.K. Supreme Court and the United States are ongoing, and an appeal is anticipated in Australia.

The Copyright, Designs and Patents Act 1988 (“CDPA”) provides a statutory framework for determining authorship of copyright works. For literary, dramatic, musical and artistic works (so called “LDMA” works), the author is the writer, composer and artist, respectively (s.9 CDPA). For sound recordings it is the producer (s.9(2)(aa) CDPA) and for films, it is the producer and principal director (s.9(2)(b) CDPA)). Films will be a work of joint authorship unless the producer and principal director are the same person.

Pursuant to s.10 CDPA, a work will be a work of joint authorship if it is produced by collaboration of two or more authors in which the contribution of each author is not distinct from that of the other authors.1

Computer Generated Works (“CGW”) are protectable under s.9(3) CDPA, provided that the work is “computer generated,” i.e., the work must be generated by a computer “in circumstances such that there is no human author of the work” (s.178 CDPA). If this is satisfied, the author shall be “the person by whom the arrangements necessary for the creation of the work are undertaken” i.e., authorship is conferred on the (human) person who configured or programmed the computer. Protection lasts for a period of 50 years from the date of creation.

The application of s.9(3) and s.10 were considered in the case of Nova Production v. Mazooma Games [2006] EWHC 24 (Ch), which concerned copyright and joint authorship issues in a video game based on pool. In his decision, Kitchin J (as he then was), held that the computer programmer (a Mr. Jones) was the author:

… in so far as each composite frame [showing the arrangement of the pool table, balls and cue etc] is a computer generated work then the arrangements necessary for the creation of the work were undertaken by Mr. Jones, because he devised the appearance of the various elements of the game and the rules and logic by which each frame is generated and he wrote the relevant computer program. In these circumstances I am satisfied that Mr. Jones is the person by whom the arrangements necessary for the creation of the works were undertaken and therefore is deemed to be the author by virtue of s.9(3).

Kitchin J went on to consider the effect of player input, and whether the (human) player could be attributed joint authorship on the basis that the appearance of a particular screen depends on the way the game is being played (e.g., the rotation of the cue around the cue ball, the power of the shot, etc). No joint authorship was found by Kitchin J, who ruled (at [106]) that:

[T]he player is not, however an author of any of the artistic works created in the successive frame images. His input is not artistic in nature and he has contributed no skill or labour of an artistic kind. Nor has he undertaken any of the arrangements necessary for the creation of the frame images. All he has done is to play the game.

Given the evolution of AI, and the rise of computer-generated creative works, the statutory position in the U.K. and the application of Mazooma presents an interesting conundrum for AI-protected works — what happens in scenarios where a human author defines the parameters (i.e., the arrangements necessary for the creation of the works), but an AI machine produces the finished work and the input of the human and AI is not distinct? Should, or could, the AI be attributed joint authorship? How would the originality requirement be satisfied? The definition of a CGW, for the time being, remains unchanged, with the government explaining that “the use of AI is still in its early stages … and any changes [to the law] could have unintended consequences.” The government has said it will keep this under review, so it will be interesting to see how, and if, this definition evolves as the use of AI in generating copyright works increases.

Considering a UK legal campaign to secure AI authorship of an artistic work

The interaction between human authors and AI is a sliding scale, and it is a question of degree as to what point the AI’s input is sufficient to attribute joint authorship to it. For example, at one end of the scale, the AI is a tool to be worked by the hand of the human author — akin to a paintbrush or a photographer using software to edit a picture they have taken. In such a scenario it is unlikely that this would give rise to joint authorship issues. At the opposite end, the AI is much more involved. For example, if the photographer in the answer above uses an AI to improve and enhance the picture without input from the photographer, does a joint authorship issue arise? Would it make a difference if the AI tool used is something configurable by the photographer, akin to a Photoshop plugin, versus something that “automagically” improves the photo, akin to the AI features incorporated into Google’s latest generation of Pixel phones?

Obtaining AI authorship

The question of AI authorship is yet to be put to the U.K. Courts, and it is difficult to predict the outcome with any certainty.

The Berne Convention provides no definition of “author,” but the references to author nationality and author residence (Article 3), and the definition of the term of protection with reference to the life of the author (Article 7), provide strong contextual references that only natural persons should be regarded as authors. This appears to have been followed by European Union Law and Case Law, for example, the InfoSoc Directive (2001/29/EC) provides no definition of “authorship,” and there is EU case law stating that only human creations are … protected(see C-145/10, Painer, AG Trstenjack).

However, there is some tension with other directives which permit for “legal persons” to be rights holders. The Computer Programs Directive (2009/24/EC) states that the author shall be a natural person who created the program but allows for legislation of Member State to designate a legal person as rightsholder (Art 2(1)). Additionally, Article 4(1) of the Database Directive (96/9/EC) permits that the author of the database shall be the natural person who created the database, or the legal person designated as the rightsholder (providing legislation of the Member State permits it).

Accordingly, the U.K. could have some leeway as to its approach to AI authorship. One option would be for the U.K. to designate an AI as a legal person, but this would have other far-reaching implications. An alternative could be to limit legal personality for the purposes of copyright authorship only, but this is also a slippery slope. In any event, granting legal personality is a matter for the U.K. parliament and not for the Court. Given the potential repercussions, and the fact that the AI is still in its infancy, it is reasonable to think that the U.K. Court might be guided by decisions made by foreign jurisdictions and copyright offices that have already considered questions regarding AI joint authors and non-human authors.

Foreign Courts: India, Canada and the U.S.

Despite initially awarding protection, the Indian Copyright Office recently issued a notice of withdrawal to Ankit Sahni — the man who successfully secured joint authorship of an artwork produced by his AI tool RAGHAV Artificial Intelligence Painting App. The artwork, titled “Suryast,” was based on a dataset created on Van Gogh’s painting “Starry Night” and a photograph taken by Sahni.

Similarly, the Review Board of the U.S. Copyright Office recently rejected Stephen Thaler’s appeal to register a copyright claim in the artistic work “A Recent Entrance to Paradise” produced by a computer algorithm running on his AI machine: Creativity Machine. The Review Board held that “human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.”

Conversely, the Canadian Copyright Office granted copyright registration and recognized RAGHAV as a joint author. It is important to note, however, that the application was not subject to substantive examination.

Non-human authors: Naruto

The question of copyright protection for non-human authors was previously put to the U.S. courts in the case of Naruto v. Slater — the famous selfie-taking macaque monkey. The lawsuit ultimately settled, but not before the California District Court artistically sidestepped the question of authorship (and originality), instead finding that Naruto failed to establish standing under the Copyright Act. This decision was affirmed by the Court of Appeals for the Ninth Circuit.

Originality

Assuming an AI can be an author, there is the additional hurdle of originality, which is also yet to be grappled with. Copyright protection is only afforded to those works which are original — broadly regarded in copyright laws globally as a representation of the personality of the author, or the author’s “own intellectual creation.” The legal position appears to be that creative works generated by the present generation of AI machines cannot satisfy the originality requirements under the current legal framework. As AI systems develop, the discussion of the originality requirement will likely become increasingly complicated.

The position appears to be that, for the time being at least, an author or joint author of a copyright work must be human. However, given the paradoxical appetite for AI creators to have their AIs recognized as authors and inventors, and the U.K.’s desire to be a leader in shaping global technical standards for AI (as seen in its recent pilot scheme), we may still see the U.K. (either via its legislature or the Court) taking a more open-minded approach in the future to the question of AI authorship and joint authorship.

There is an important policy consideration as to whether AI works should be protected under copyright at all. Copyright protection (as with patent law) is an incentive: It rewards the time spent in generating original, creative works (or novel inventions, in the case of patent law). Works currently produced by AIs are not protected, but there is evidence that the recognized authors of those works are still being rewarded for their efforts — an AI-generated portrait of Edmond Belamy sold at Christie’s for $432,500. AIs do not require an incentive to create or to invent, so why be rewarded? What is clear is that as AI becomes more sophisticated, so will our analysis of these topics evolve.


  1. CDPA, s.10A contains a specific provision for works of co-authorship for works produced by the collaboration of the author of a musical work and the author of a literary work where the two works are created in order to be used together. For clarity, this article does not address co-authorship under s.10A and instead focuses on the issues of joint authorship.

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