The Copyright Conundrum: Authorship in AI-Generated Works
The emerging conversation in Australia
12 December 2019
In light of the growing prominence of artificial intelligence (AI) programs, there is an emerging conversation being had in Australia as to the adequacy of local copyright laws in protecting works created by or with the assistance of these programs. Under the Copyright Act 1968 copyright protection will only be afforded to works authored by a qualified person, being an Australian resident or citizen.
The Story So Far
The courts have been reluctant to expand this definition, considering that authorship requires some level of intellectual effort by a human. However, other jurisdictions such as the United Kingdom and New Zealand have already made changes to their copyright legislation, recognising authorship in computer generated works as belonging to the person ‘by whom the arrangements necessary for the creation of the work are undertaken.’
Subsequently, there have been increased calls in Australia to amend the definition of authorship under the Act to ensure that the Australian law keeps pace with this rapidly changing space, and to provide businesses with greater certainty that their works created using AI programs will be protected. In considering such law reform, it is now more important than ever to have due regard to the ethical complications that the development of AI systems is likely to present going forward. For instance, the question of who should own the copyright to AI developed works is itself a vexed one. Additionally, in the absence of a statutory ethical framework for the responsible construction and use of AI, the way that developments in IP law will interact with this exponentially changing area will require that it be front of mind for governments and regulators.
The Question of Authorship
The concept of authorship is an essential element of copyright ownership. While the Act neglects to explicitly define authorship, it recognises that copyright will only subsist in works authored by a qualified person, being an Australian citizen or resident. For traditional works this model has, for the most part, been effective. However, with the emerging capability of AI programs to autonomously create and contribute to works, the question of authorship is increasingly being called in to question.
The following landmark cases each reaffirmed the requirement for human authorship in copyrightable works in Australia:
IceTV Pty Ltd v Nine Network Australia Pty Ltd  HCA 14
In the IceTV case the High Court was required to consider whether IceTV had infringed Nine’s copyright in their television programming guide. IceTV had allegedly violated Nine’s copyright in the production of their ‘IceGuide’, a digital television guide that was created using the information contained in Nine’s ‘Weekly Schedule’ of programs (along with similar publications by other networks). Nine sought to assert that their ‘Weekly Schedule’ was an ‘original literary work’ under the Act. This work was compiled in part by human input, and substantially by an automatic computer program. In finding in favour of IceTV, the High Court determined that while copyright may have subsisted in some aspects of the publication of Nine’s ‘Weekly Schedule’ it did not protect the programming information contained within it, as the time and title information lacked the necessary originality or creativity, instead considering this to be an expression of factual information. The Court determined that original works require some ‘independent intellectual effort’, or ‘sufficient effort of a literary nature’ to receive copyright protection. Nine was also unable to identify all the authors of the ‘Weekly Schedule’, as it was created by both humans and computers.
Telstra v Phone Directories  FCAFC 149
In the Telstra case the Full Court of the Federal Court of Australia was required to determine whether copyright subsisted in Telstra’s White Pages and Yellow Pages telephone directories. Telstra commenced proceedings against their competitor Phone Directories, claiming that Phone Directories had infringed Telstra’s copyright in the production of Phone Directories’ directories. Phone Directories succeeded at both the first instance and again on appeal. In arriving at their decision, the Full Court referred to the judgement in IceTV (above) ultimately concluding that copyright cannot subsist in a work unless it is created as a result of the ‘independent intellectual effort’ of a human author. Telstra ultimately failed to identify all authors of the directories, essentially an impossible task given that large parts of the directories were generated using computer programs.
Time for legislative reform?
The current status of the Australian law can have significant implications for companies that rely heavily on the use of computer programs as part of their business. For instance, in the Phone Directories case (above), Telstra’s publication of their phone directories once translated in to annual revenues of $300 million for the White Pages and over $1 billion for the Yellow Pages. Understandably the challenges presented by AI, robots and machine learning could not have been anticipated at the time the Act was drafted. These challenges are only likely to be amplified going forward as more businesses across industries begin integrating AI programs in to their operations.
One possible response to this issue would be to follow the lead of the United Kingdom and New Zealand and clarify the question of authorship in computer-generated works in copyright legislation. In each of these jurisdictions, authorship of computergenerated works is ascribed to the person ‘by whom the arrangement necessary for the creation of the work are undertaken’. In fact, this response was recommended for Australia by the Copyright Law Review Committee in their 1994 report titled Computer Software Protection, but was not taken up. Taking this approach, the person who creates the program shall bear the fruits of their labour by holding copyright to any works which their program might produce. This approach would arguably have solved the question identified in each of the IceTV and Phone Directories cases as to who the author of such works was for copyright purposes. A separate question may arise though when considering AI, where the identity of the person who created the AI may be strenuously contested in circumstances where the creator of the AI could arguably be the programmer, the investor or even other software.
While a legislative change in Australia of the type referred to above might solve what appears to be an ever increasing problem, it will be imperative for governments and regulators to also have due regard for the ethical complications that this approach might present in the future. In the likely event that history were to repeat itself, it is likely to be the case that society will be unable to reasonably anticipate the capabilities that these technologies might soon have. Many academics are already attempting to predict the most destructive capabilities that AI might soon possess, with some such as Thomas Metzinger calling for a ban on all research in to both autonomous weapons and ‘synthetic phenomenology’, being autonomous intelligent systems that have a sense of self. Legitimate ethical and moral questions arise, including whether a person, or company for that matter, should reasonably be allowed to enjoy the potentially unlimited fruits that their programs might produce? Ought there be a limit on the extent of this enjoyment? And who would own the copyright to works that continue to be produced beyond the life of the person or company who created the program? In the absence of a local or international ethical framework for the responsible construction and use of AI, any legislative change in the copyright area which interacts with AI ought to have due regard to the ethical complications which might arise.
KEY TAKE-AWAY POINTS
- Currently, Australian law only recognises copyright ownership as being capable of belonging to human authors of works created with a sufficient amount of independent intellectual effort.
- There is an increasing discussion emerging recognising the potential need for legislative reform to recognise an author of AI-generated works.
- Regulators ought to have due regard to the ethical complications that might arise when legislating in the arena of AI.
Evan Thomson, Paralegal, contributed to the writing of this article.