Artificial Intelligence & Copyright: Where Are We Going?

Written by Mark Eiffe | September 6, 2023

Intellectual Property

The concept of copyright as a moral right has existed for centuries (the story of Antonio Tempesta’s famous 1593 ‘Map of Rome’ is worth a read), but is now being applied and tested to situations as never before.

In recent years, we’ve all been introduced to the most user-friendly iterations of generative AI, such as ChatGPT. Since then, many have started raising questions about the legal implications of these new tools, including the intellectual property rights associated with work created by the technology.

For, example, if you ask an AI tool to create an image or write a poem then who owns the copyright?


The developer of the AI tool?

The AI itself? (We’re really getting into ‘Skynet’ territory now)

It was generally accepted in legal and academic circles that AI-generated content would probably not enjoy copyright protection but until recently there had not been any definitive reported court decisions, certainly not from so-called ‘developed economies’. So, basically, we weren’t sure.

However, the US Federal District Court has issued a judgement in Thaler v. The Register of Copyrights reaffirming the long-held maxim that copyright will only attach to human creative endeavours. The judge in the case said that “Copyright has never been granted to work that was absent any guiding human hand… human authorship is a bedrock requirement of copyright.”

Nonetheless, the judge did acknowledge that humanity is “approaching new frontiers in copyright”, where artists will use AI as a tool to create new work. She wrote that this would create “challenging questions regarding how much human input is necessary” to copyright AI-created art, noting that AI models are often trained on pre-existing work. This line of reasoning would have been explored further in this case had the Plaintiff claimed copyright for himself rather than the AI tool he developed.

There are a few cases that are due to be ruled on in the coming months (again, mainly in the US) where the specific question of copyright attaching to the human person who gave the instruction to the AI tool could be clarified, but for the moment, it’s pretty clear that any work created by an AI system will be determined to lack the requisite human authorship and thus not eligible for copyright protection.

If you have any queries about copyright ownership in creative work, please get in touch using the form below and our specialist intellectual property lawyers in the UK and Ireland will be happy to assist.

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