Being Human in the Age of AI

Given that we are constantly barraged with news related to Artificial Intelligence (“AI”) in today’s world, it can be difficult to remember that AI was a relatively niche area of computer science until ChatGPT’s release in 2022. However, within the legal industry, discussions about protecting computer-generated works and safeguarding human creativity were already underway in 1987, when the UK Parliament was debating balancing creative rights with “investment in artificial intelligence systems”. Not bad for an industry often regarded as lagging  when compared to the tech sector.

Today’s AI models enables consumers to have access to computing power that is basically limited only by their creativity. Vibe coding, for example, has enabled non-developers to create apps and websites that previously required expertise in the industry to create. Even major organisations have embraced this shift: Spotify reported earlier this year that its best developers “have not written a single line of code since December.” Similarly, for many years, phone cameras have included features that edit, and alter photos to varying degrees.

This raises a fundamental question: in the age of AI, what constitutes human creativity — and does copyright law still know how to recognise it?

The CDPA and AI

The Copyright, Designs and Patents Act 1988 (“CDPA”) provides that original works, including software and source code, are protected as literary works. The CDPA addresses computer-generated works and provides that the author shall be the person “by whom the arrangements necessary for the creation of the work are undertaken” — albeit with protection lasting 50 years rather than the standard 70 years after an author’s death. In doing so, the CDPA acknowledges that a computer-generated work, includes some degree of creativity and intellectual effort from a human.

However, what computer-generated and arrangements mean in today’s AI landscape remains largely untested. The UK’s recent report on Copyright and Artificial Intelligence highlighted that protection for computer-generated works “departs from the core rationale for copyright, which is to encourage and reward human creativity,” with the consultation suggesting that wholly AI-generated works may not deserve protection at all. Given the rapid technological advancement since 1988, one cannot reasonably compare modern large language models to the computer-generation systems of that era.

In 1988, the digital world was vastly different. When debating the CDPA, Parliament took a business-first approach, reasoning that protection would “allow investment in artificial intelligence systems, in the future, to be made with confidence.”

However, the computer-generated works Parliament envisaged were more akin with a game of Tetris, where developers coded the rules, shapes, and mechanics, while the computer-generated work was the selection of the next piece whilst playing. Today’s AI, in comparison, can produce videos increasingly difficult to distinguish from reality and de-age actors for films, which cannot really be compared to what was originally envisioned. Human creativity remains essential, but the “arrangements necessary” keep on being reduced.

The computer-generation of the 1980s bears little resemblance to today’s effortless automation and as the gap between human effort and AI output widens, the CDPA may fast approach a time where these legal issues become more common. Is it time to reimagine what computer-generated works means. Should copyright protect outputs where human creativity is limited, or should copyright stand for more than just a singular prompt?

If you’re considering making use of AI generated work, or want to ensure that your terms and conditions are aligned with your AI usage and want to understand the legal implications, then contact our legal team at info@briffa.com for more information.