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 to situations and is being tested as never before.
Since late 2022 as we’ve all been introduced to the most user friendly iterations of ‘generative AI’ such as ChatGPT and image generators, questions started rather quickly to be raised as to the legal implications of these new tools, including the intellectual property rights implications.
If you tell an AI tool to create an image or write a poem – who owns the copyright? You? 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,” adding that “human authorship is a bedrock requirement of copyright.”
The judge did however 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 around copyright ownership in creative work, please get in touch with us in Briffa where our specialist intellectual property lawyers in Cork and the UK will be happy to assist.
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