Copyright, Only For Humans?

Unlike trademarks or patents Copyright does not need to be registered.  It is designed to protect works created at least in part by humans.  Copyright Agencies do exist but their purpose is not to create copyright rather to record who created something and when to aid with any disputes over the ownership of a work or a possible copy.  In 2018 Stephen Thaler applied to register as copyright an artwork named ‘A Recent Entrance to Paradise’ an output of the AI Engine ‘Creativity Machine’.  The USA Copyright Office denied the application.  Thaler appealed but in a ruling of 18th August 2023 a Federal Judge from the USA District of Columbia Court denied the appeal. The summary states that AI created art cannot be subject to copyright.

While this is a case of USA law the principles are likely to carry over to similar situations in other jurisdictions.  Kindus has discussed how AI engine’s may be breaking copyright by harvesting works from existing authors and using this as a basis for ‘new’ creations.  The Federal ruling reinforces this implying that if an artwork were made from completely random or non-copyright sources it might be difficult to claim copyright for it.  If an entity cannot be protected by copyright then any restrictions on its use would be limited.  If unique it might be registered as a Trademark although unlike copyright that could be costly.

Copyright law is designed to adapt as technologies involve, UK copyright legislation dates back to 1710.  A photograph can be copyrighted.  Although any image is a product of the camera the involvement of a human in composing and timing the creation of that image makes copyright applicable.  In 2015 People for the Ethical Treatment of Animals (PETA) filed a lawsuit that images taken by a crested macaque, Naruto, who had grabbed an unattended camera, belonged to Naruto not the camera owner; who later published them.  There is some debate as to what extent the work was that of Naruto or the equipment owner, David Slater, who may have set up the camera and encouraged the macaques to interact with it.  Slater argued that he had lost potential income because the selfie image was freely available on public websites and he was unable to sell any rights to it. The court ruled that a monkey took the photograph but is not human and cannot claim copyright.  In this instance neither Naruto nor David Slater had a claim to copyright although a mutual settlement to the case was agreed.

Legislation varies throughout the world and in a digital environment it is less clear which jurisdictions apply.  The Thaler judgement is from the USA but the copy of ‘A Recent Entrance to Paradise’ below is hosted on the Kindus site whose server is in the UK, a country where the alleged copyright would have been recognised.

This file is in the public domain because it is the work of a computer algorithm or artificial intelligence and does not contain sufficient human authorship to support a copyright claim.

Under UK law there is an active consultation proposing continued protection for computer generated works while recognising that use of any derived works that are not in the public domain would break copyright.   AI creations have been protected since 1988 although the UK acknowledges that many countries including the USA do not recognise this ruling.  According to section 9(3) of the UK Copyright, Designs and Patents Act 1988; copyright of an AI work belongs with the author of the creating software (seen in law as a literary work):

‘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 copyright issue has a direct bearing on computer generated art.  If no human is involved then no one has any rights to it and anyone can give it away or sell it on.  The business model of many on-line image collections is that you pay a fee to gain access to images.  With computer generated images effectively being in the public domain any user is under no obligation to pay any such fee.  Any attempt to protect an image, such as registering it or minting a NFT would have no legal weight.  At present it appears that the hosting location of any image is key.  This explains the weight the UK is putting onto promoting copyright for AI engines.

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