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This research paper discusses and critiques the usage of traditional concept of human authorship (developed in the pre- computer era) to the modern creative works generated in the technologically advanced Artificial Intelligence (AI) era. It addresses the need to remedy the lacuna in providing copyright protection to works created independently by AI or with minimum human intervention. This paper highlights the significance to provide authorship to programmers of AI for the advancement of technology and innovation.
The subject of authorship has always been one of the least spoken about copyright subjects. The advancement of technology and era of Artificial intelligence (AI) has brought the subject of authorship in the limelight, it has led to the start of discussions and debates of the increasing requirement of amendments and modifications to the copyright law especially related to the topic of authorship. Due to emergence of AI, nowadays it is possible to create new works either to a large extent or completely independent from human intervention. In this paper, I discuss about the current copyright law (in Australia) which denies copyright protection to AI created works due to lack of human contribution and the significant consequences it has on the ones who expect to commercialize and make profits from such AI created works. Further, I also discuss few case laws which deal with the question of authorship of works produced by AI.
AI is developing rapidly and catching up with humans, thus changing the perception of people towards authorship and creative works. Thus, this paper also discusses how a few countries like UK, India, New Zealand have amended their copyright laws to keep up with the growing advancement of AI and also points out the growing need of modification to the copyright law in Australia and other jusridisions as well, to account for AI.
Law of Copyright and Authorship
At present The Copyright Act 1968 (Cth) (“The Act”) makes the identification of a human necessary to be called as the ‘author’ of a Part III work. (Part III: Copyright in original, literary, dramatic, musical and artistic works)
Section 32 of the Act sets out that Copyright subsists in original literary, dramatic, musical or artistic works that are unpublished and of which the author was a qualified person at the time when the work was made. A qualified person is an Australian citizen or a person (other than a body corporate) resident in Australia.
In short, any creation is considered to be eligible for copyright protection only if it is an outcome of an application of human intellect. This principle is the same in most of the nations across the world because of various copyright treaties.
Works which are not created by humans cannot be assigned copyright protection, such works are removed from purview of copyright protection ab initio. Even though we feel the works are creative, as per the laws in most of the jurisdictions, works created by a non-human author cannot be assigned copyright protection and hence the author does not enjoy any kind of monopolistic rights.
In 2014 the requirement of a human being behind the creation was discussed in Naruto v. Slater, when British photographer David Slater was trying to take unique photographs of a troop of Monkeys. He mentioned that he placed his camera on a tripod and made sure that the camera setting was perfect. A monkey got drawn to the camera, stole it and took few pictures on its own. Most of the images were of weak quality or were not properly focussed, but people were curious to see and especially one photo came out to be really nice. The legal issue was whether the work i.e. photograph was assigned copyright protection, even though it was the monkey who clicked the photo. The legal battle went on for years and at the end the US copyrights office ruled that as the photograph is not the direct outcome of the human effort, it is not eligible for copyright protection.
It was concluded that the monkey would not be considered as the author of the work either.
Without any doubt, humans can use computers/phone i.e. machine as an instrument to create works and these works would definitely fall under the purview of copyright protection in all nations across the world. For example, a photograph can only be produced with the assistance of a machine i.e. camera. Photographs are eligible for copyright protection as long as for its creation, the camera is used only as an instrument by the human. A photograph would not be eligible for copyright protection if it is created by a camera alone – without any human intervention.
The courts have also been of the opinion that authorship is always contingent on exertion of skill, labour and intellectual effort by a human author, to a certain extent. (The extent is currently uncertain and not defined anywhere).
The case of Telstra Corporation Limited v Phone Directories Pty Ltd is the perfect example for the above-discussed principle (i.e. any creation is considered to be eligible for copyright protection only if it is an outcome of an application of human intellect). The main issue of the case was whether copyright subsisted in Telstra’s White and Yellow Pages telephone directories. Telstra argued that its staff had applied individual independent effort throughout at “every stage of the process of compilation”.
The Federal court followed the reasoning of High Court in the case of IceTV v Nine Network (“IceTV”), that for a work to be original the work must: 1. Be created by a human 2. It should not be copied and 3. It should be the output of an individual independent human intellectual effort.
Keeping the IceTv case and principles of authorship under copyright act, the Federal court rejected the above argument made by Telstra and held that there were various stages in the process of compilation were not independent efforts of humans but were completely computerised.
Following was noted by Gordon J:
“made clear that there are substantial parts of the directories that do not have human authors…are automated to the extent that human involvement is minor…or have authors who cannot be ascertained (for example, much of the rollover component of the directories…).”
In many cases, the above principles of authorship have been used for works generated by computers and it has been concluded that the work cannot be eligible for copyright protection if it is completely generated by a computer and has not been created by human intellectual effort.
In IceTv the computer-produced output was pronounced to be authorless. This judgement was followed in both Telstra Corporation Ltd v Phone Directories Co Pty Ltd and Acohs Pty Ltd v Ucorp Pty Ltd.
In 1998, the Australian Copyright Law Review Committee (‘CLRC’) expressed concern about:
“the extent to which the current legislation accommodates the increasing, indeed almost ubiquitous, use of computers in the creation of copyright subject matter. The [Copyright Act 1968 (Cth)] currently requires the identification of a human as the ‘author’ of a Part III work. While a majority of the Committee recognises there is an ongoing need for copyright legislation to connect a work with a human, it is concerned that the current requirement of ‘authorship’ may preclude the grant of protection to material that is deserving of protection, simply because the extent to which a computer was utilised in its creation exceeds a particular (currently uncertain) level.”
It can be said that these existing principles now need to be amended or updated especially due to the tremendous rise in Artificial Intelligence (AI) – now due to AI, it has become possible to create works without human intervention.
Way in which AI creates Artwork
It’s been five decades since machines have been developing creative works and this continues till date. But most of the computer generated works were created only after huge contributions and efforts of the programmers. The machine was merely being used as a tool or an instrument, like how a camera is just used as an instrument by the photographer to create art i.e. photographs. However, with evolution of technology and rise in AI, works are being created by machines independently or with little human intervention.
Machine learning is a part of AI and its speedy advancement has led to the development of self-directed systems i.e. they are capable of learning without programming instructions of a human. With the help of machine learning, computer programs can be developed which have built-in algorithms that allows it to learn from data input and to make decisions in future both autonomously and/or when instructed.
The input which is given by programmers is adapted by machine learning algorithms, when applied to creative works like art, music and literature. These computer programs then develop new creative works independently by taking advantage and learning from the data fed by the programmers.
Programmers can definitely set parameters, but the work is created by the computer program on its own, this is called as neural network. Neural network is a computer system or a type of computer program that is designed to copy the way in which the human brain operates.
Is it possible to copyright works created by AI
Questions and issues that might rise due to above-mentioned existing principles:
The main issue arises when it is not only about computer generated works but when the scenario arises where a work has been created by humans along with the help of computers.
It is hard to figure out who is the creator (computer or human) as the technical intermediaries blur the lines between the inputs of the human and that of the computer/software. Separating the contributions of the human from those of the machine is necessary for providing copyright protection. As mentioned earlier, any creation is considered to be eligible for copyright protection only if it is an outcome of an application of human intellect.
What would happen if a creative work is generated by a machine and that machine is
programmed by a human? If in Australia, the Act is amended and the works created by AI become eligible for copyright: then who would be the author?
The person who developed the AI?
The person who used the AI to create works?
or the AI machine itself?
Few examples of creative works generated by a machine which is programmed by a human:
- A portrait called “the Next Rembrandt” was unveiled in Amsterdam, this 3D painted portrait was generated by a software that had analysed thousands of works by the 17th-century Dutch artist Rembrandt. Bas Korsten is the brainchild behind developing the software, he worked really hard and faced a lot of challenges while in the process of developing the software. Some of the challenges he faced was in designing a software system that could understand Rembrandt based on his use of geometry, composition and painting materials.
It does not matter how valuable this portrait might be in the market or how much importance it must have in economic or industrial terms – if it is not created by a human then it is not eligible for copyright protection.
- In Western Virginia, 17 year old Robbie Barrat programmed a rapping robot. Barrat fed his RapBot’s neural net Kanye West lyrics by translating them into a sort of shorthand that the neural net can digest. The output generated by the robot consisted of original rap lyrics arranged with rhyme and flow.
- In Japan, a short novel named ‘The day a computer writes a Novel’ or “Konpyuta ga shosetsu wo kaku hi,” was created by a Japanese AI software. The team of researches selected words and sentences, and set parameters for construction before letting the AI generate the novel independently.
Above examples are proof that AI software’s are nowadays capable of creating works absolutely independently i.e. without any efforts or intervention of human. AI softwares are not just used as tools by humans to create works. Even though AI softwares are programmed by humans, the decision making and creativity is generated by the AI software on its own! But this does not mean that the AI software can be said to own the copyright for the works it creates. As mentioned above, the current Australian copyright laws do not allow the machines to own copyright for any of the works, even though independently created by them. Then in such a scenario who would be called the author of the works?
Suggestion: Body corporates and organizations do enjoy the status of a legal person and in certain scenarios they do enjoy copyright protection for works they have not created independently/directly. For example: When a company hires a professional to come up with training decks, logos etc. then the company will enjoy the copyright protection over it, even though the works are not created by it directly. Hence, it should be said that possibly the copyright protection can be granted to the human or company that has hired/programmed the AI software to create works for it.
This will ensure that companies will keep investing in the technology, having the knowledge that they would be in a safe zone with respect to copyright protection and will be entitled to the benefits.
Also, when a creation is solely made by a machine, which is programmed by a human – shouldn’t it be kept in mind that a human has put great efforts in terms of time and investment to produce the machine which in turn then produced the works, hence couldn’t it be said that the human participated actively in the creation of new works? I believe we can look at it being similar to copyright protection being granted to photographs captured by camera – the camera is a machine which creates photographs, however it has been made by a human for the purpose of creating photographs!
With changing times and tremendous emergence of AI, the Copyright laws in few jurisdictions like that in UK and New Zealand have been amended.
In these countries the author of the computer-generated works (in the case of a literary, dramatic, musical, or artistic) is “the person by whom the arrangements necessary for the creation of the work are undertaken.” 
Therefore, if we go back and ponder upon the 2014 David Slater case, even in UK – the monkey could not be given the status of an author of the photograph. However, David Slater could be possibly considered as an author- if he could showcase and prove that he made necessary arrangements and participated actively for the creation of work i.e. photograph.
In my opinion, Slater should be regarded as the author and deserves rights over the photograph even though it is clicked by a monkey. The reason I say this is because Slater set up the camera in the correct angle using a tripod, he made sure that the lighting was perfect and due to these efforts of Slater the photograph (clicked by the monkey) turned out to be so nice.
As per Copyright, Designs and Patents Act 1988 (UK) (CDPA): The author shall be taken to be “the person by whom the arrangements necessary for the creation of the work are undertaken.” This means that the author will not necessarily be the machine which created the new works but the author would be the person who would have made the necessary arrangements for the creation of works.
But who the person would be still not very clear and is open to interpretation. It can be anyone: the person who programmed the machine, the user of the machine, the person who provided finances for the machine i.e. investor.
Microsoft came up with power point, word and excel computer programs, however Microsoft does not own every work produced using that program. The user is entitled copyright protection i.e. the author would be the user who used the program to create his or her word, power point of excel file. However, when we look at works that are generated by artificial intelligence algorithms, the contribution of the user to the creative process may just be a click of a button and then the system/AI/machine only does its own thing. Hence, in such cases the programmer will be considered the author and not the user.
This subject was raised in Nova Productions Ltd v Mazooma Games Ltd , which was related to the real time creation of images in a video game. One of the issue was who would be the
author of the created images: the person who programmed the game or the person who played the game i.e. the user/player. It was held that the user/player of the game could not be given the title of author of the images, as he/she did not contribute to any artistic creation. The court held that the input of the player is not artistic in nature and he/she has contributed no skill or labour of any artistic kind. Rather, the programmer, as the person who had initially “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” would be considered the sole author of the images.
Only few countries like UK grant copyright to the person who made the AI’s operation possible. As discussed above, most countries like Australia do not grant copyright protection to works which are created solely by AI and without human intervention.
The case of Acohs v Ucorp is about claim of copyright infringement of database of Achos, which were created by help of machines. The appellant, Achos and defendant, Ucorp are competitors in generating documents known as Material Safety Data Sheets (MSDSs). These are data sheets that provide information of certain dangerous or hazardous substances, these sheets are required to be provided to those supplied with dangerous substances, as per Australian law. Achos had a large database of information on such hazardous and dangerous substances and goods. This database was made by Achos’s employees, they collected data either by their own knowledge or by taking the information from MSDSs generated by other providers.
From this database – MSDSs would get created automatically through a computer process which was programmed by Achos.
When a customer of Achos would request for a MSDS for a specific substance or good, the computer process programmed by Achos would automatically collect the required data and the programmed instructions in Acho’s system would lead to the creation of an HTML code which would then be sent to the customer’s machine. The code would then create the MSDS as required by the customer and the customer would be able to see it on their system.
Ucorp also has a database but it comprised of pre-written data sheets, it comprised a collection of existing MSDS. These MSDSs could be the ones they have created themselves or could be those created by other providers like Achos.
The dispute arose after an Acohs customer moved to Ucorp, which was subsequently accused of providing the customer with MSDS that had been generated by Acohs.
The trial judge concluded that Ucorps had indeed copied, however there was no infringement of copyright. For Achos to succeed it had to prove that copyright did subsist in the MSDSs created by it – which were copied by Ucorp.
Subsistence of copyright in MSDSs as original literary works was a contentious issue in the case. Acohs had programmed a computer system to produce HTML codes that could then be converted into MSDSs. The main point of issue was that the MSDSs were not written by a single human or jointly by humans but were generated by a computer system that was programmed by Achos.
Hence, the MSDSs were not eligible for copyright protection.
Acohs showcases the challenge to prove subsistence in computer generated works in light of post-IceTV judicial interpretations of authorship requirements. Due to no legal definition of ‘author’ with respect to such works, “lawyers are advising clients that automating authorship may lead to the resulting material being denied copyright protection.” Nowadays, it is extremely common to use computer processes for creation of new works, it is still very unclear how much contribution of a computer in the creation process would lead to copyright protection being denied to the human creator.
If the court concludes that works created by AI (which require very less or no human intervention) are not eligible for copyright protection, then the competitors would start copying each other’s works for free, not caring about the massive investment that must have gone in making the AI that actually created the works. This would lead to an enormous commercial setback for the company/individual who must have invested a huge amount of money in the technology.
Imagine if a company/individual invests a huge amount of money and time in a technology that creates music or something unique (game, painting etc.) but the music, game or painting is not entitled copyright protection and is free to use for anyone all over the world.
It would be such a huge commercial setback for the investor.
If the works created by AI are not eligible for copyright protection, then what would motivate the human – who developed the AI (through which works are created) to innovate more…what would be the incentive?
Wouldn’t this discourage people from developing new programs and machines?
As discussed throughout in this paper, AI has been evolving rapidly since years. Nowadays, computer programs/ software are capable of creating works like games, paintings, music independently. It is tough for laws to keep up with the speed in which technology has been advancing. New issues have been created due to AI created works, clearly current laws in most of the jurisdictions are not prepared to deal with these issues especially of authorship. As per current laws, AI generated creative works are not eligible for copyright protection. If the programmers of such AI do not get rights over the works created by AI, then there would be no reason or incentive for the programmer to develop the AI in the first place. I feel the programmers do deserve to have monopoly over the AI created works just like a painter, filmmaker or writer would have. Providing them with copyright protection is also important for encouragement of innovation and ongoing technological advancement. The purpose of this paper was to highlight the urgent need to remedy the lacuna in providing copyright protection to works created independently by AI or with minimum human intervention. According to me the most logical step would be to follow suit of those countries that make AI created works eligible for copyright protection. UK’s system looks the most logical and most efficient.
- Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCAFC 149
- Naruto v. Slater, No. 16-15469 (9th Cir. 2018)
- Nova Productions Ltd v Mazooma Games Ltd & Ors Rev 1  EWHC 24 (Ch)
- Acohs Pty Ltd v Ucorp Pty Ltd  FCAFC 16
- The Copyright Act 1968 (Cth)
- Copyright, Designs and Patents Act 1988 (UK)
- Copyright Act 1994 (NZ)
- C. Ruipérez , E. Gutiérrez , C. Puente , J. A. Olivas, ‘New challenges of copyright authorship in AI’ (2017) Int’l Conf. Artificial Intelligence
- Copyright Law Review Committee, Australia, ‘Simplification of the Copyright Act 1968 — Part 2: Categorisation of Subject Matter and Exclusive Rights, and Other Issues’ (1999)
- Jean-Marc Deltron and Franck Macrez, ‘Authorship in the age of machine learning and artificial intelligence’, Center for International Intellectual Property Studies Research Paper No. 2018-10
- George, Alexandria, ‘Reforming Australia’s copyright law: An opportunity to address the issues of authorship and originality’  UNSWLawJI 34; (2014) 37(3) UNSW Law Journal 939
D Websites, Social Media
- World Intellectual Property Organization, Artificial Intelligence and copyright by Andres Guadamuz, Senior lecturer in Intellectual Property Law, University of Sussex, UK (WIPO Magazine, October 2017)
- Cambridge Dictionary, ‘Meaning of neural network’.
- @colewitz (Chloe Olewitz) (Twitter, 23 March 2016, 4:52PM PST)
- Mark Brown, ‘New Rembrandt to be unveiled in Amsterdam’, The Guardian (online at 5 April 2016)
- Kamna Shastri, ‘A 17- Year old made a computer program that raps…but is it art?’, YR News (online at 4 November 2011 )
 The Copyright Act 1968 (Cth) s 32.
 The Copyright Act 1968 (Cth) s 84.
 C. Ruipérez , E. Gutiérrez , C. Puente , J. A. Olivas, ‘New challenges of copyright authorship in AI’ (2017) Int’l Conf. Artificial Intelligence, 293.
 Naruto v. Slater, No. 16-15469 (9th Cir. 2018).
 Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCAFC 149.
 Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCAFC 149.
 World Intellectual Property Organization, Artificial Intelligence and copyright by Andres Guadamuz, Senior lecturer in Intellectual Property Law, University of Sussex, UK (WIPO Magazine, October 2017)
 Cambridge Dictionary, ‘Meaning of neural network’.
 Mark Brown, ‘New Rembrandt to be unveiled in Amsterdam’, The Guardian (online at 5 April 2016)
 Kamna Shastri, ‘A 17- Year old made a computer program that raps…but is it art?’, YR News (online at 4 November 2011 )
 @colewitz (Chloe Olewitz) (Twitter, 23 March 2016, 4:52PM PST)
 Copyright, Designs and Patents Act 1988 (UK) c 1, s 9(3); Copyright Act 1994 (NZ) s5(2)(b).
 Jean-Marc Deltron and Franck Macrez, ‘Authorship in the age of machine learning and artificial intelligence’, Center for International Intellectual Property Studies Research Paper No. 2018-10.
 Nova Productions Ltd v Mazooma Games Ltd & Ors Rev 1  EWHC 24 (Ch) at 104, 105.
 George, Alexandria, ‘Reforming Australia’s copyright law: An opportunity to address the issues of authorship and originality’  UNSWLawJI 34; (2014) 37(3) UNSW Law Journal 939.
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