There is no AI in Copyright, r-AI-ght?

It is a commercial reality that businesses want to improve efficiencies whilst retaining the best quality output. For some businesses, this means investing in artificially intelligent technology (“AI”). However, questions arise as to whether businesses will be giving up some benefits when recruiting AI to do their bidding. Especially considering the potential loss in intellectual property rights in original works. We recently posted an article setting out the recent developments in patent law, accessible via this link, however the position in Australian copyright is now evidently less accommodating of AI creations.

The Current Framework

As with Australian copyright law generally, the answer is not black and white. The Copyright Act 1968 (Cth) (“the Act”) protects original expression as it appears in material form. As opposed to the ideas or processes that lead to the original work. The length of protection is linked to the death of the author, suggesting that the author must be human.

However, many of us use AI in our everyday lives without appreciating it. For example, the predictive text appearing on my screen as I write this article. For businesses, this may involve using software that extracts information to produce reports. Australian courts interpreted the Act, allowing for the use of AI as a tool for humans to create works. With copyright being afforded to the human author using the AI or software.

As AI advances, the issue arises where its capabilities extend beyond a tool of human authors. To such an extent that the AI is responsible for producing the work as it appears in material form. This is particularly the case for works produced by AI from large amounts of data. Only some of which may have been entered by humans.

In the IceTV case, the High Court moved away from the focus on the effort or expense of the person or company responsible for the work. They emphasised that works must originate from an author’s intellectual effort. Where the author is the ‘person who brings the copyright into existence in its material form’. The Courts have subsequently reiterated the requirement to point to a human author or joint authorship between humans. Rather than assuming authorship is satisfied where the work is original, excluding the possibility of AI generated works.

Proposed Reform

In 1995 (no, that’s not a typo), the Australian Copyright Law Review Committee (“CLRC”) suggested the Act be amended to follow the approach of the UK in relation to AI generated works. Section 9(3) of the Copyright, Designs and Patents Act 1988 (UK) (“UK Act”) provides that the author of a work is ‘the person who creates it’. ‘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 UK Act defines ‘computer-generated’ as being a work generated by a computer in circumstances such that there is no human author of the work.’  Section 12(7) of the UK Act also reduces the term of copyright for computer generated works to 50 years from the end of the calendar year in which the work was created, rather than being tied to the life or death of the author. The CLRC suggested that this period be 25 years in Australia.

Since 1995, there have been numerous reports and extensive support from the profession and academics in the area. Although we are yet to see any reform to the Australian Act. Given the recent developments in the patent space, this is likely to lead to more pressure on legislators to incorporate such consideration for AI generated creations across Australia’s intellectual property regime. This could be done in a number of ways. Although we suggest that following the UK, which has a similar system to us, would be the simplest approach.

Key Take Aways

In conclusion, the current Australian Copyright Act only affords protection to works involving AI when the human user has sufficiently contributed to the work as it appears in material form. If the human author has merely input data into the database or computer system, and the computer system or AI takes that data to produce the work, the human will not be considered to have made sufficient authorial contributions.

Falling on a spectrum between AI being used as a tool by human authors, and AI being the author of works. There is uncertainty surrounding the middle ground and where exactly copyright protection is cut off.

Moving forward, we must work within the bounds of the current framework. However, we will wait to see whether any reforms are implemented.

Need Help?

For more information about how these changes affect you or to find out how we can help you, contact one of our Intellectual Property Lawyers.