Abstract
With advances in technology, Artificial Intelligence (AI) has begun to permeate every aspect of our lives and seems to be here to stay. The widespread use of AI in the creative industries raises some legal concerns, particularly from a copyright perspective. In general, copyright law is designed to protect the rights of creators of original works of literature, music, and art. However, the application of copyright law to works created by AI is a relatively new and developing area. Some of the key issues that have arisen include considerations of ownership of an AI-assisted work, and whether AI-assisted works can be considered original enough to warrant copyright protection. This article examines the copyright issues raised by AI-assisted works in different jurisdictions through case studies.
Key Words: Artificial Intelligence (AI), generative AI, AI-assisted works, intellectual property, copyright, ownership, authorship
AI has become a significant player in almost tackling every task in our lives, especially in creative industries. AI-assisted works refer to those that are created with little or no human intervention using machine learning algorithms, neural networks, and other advanced AI technologies.1 These works are often perceived as highly innovative and creative, but their legal status with regard to copyright laws is still ambiguous.
The rise of AI has raised important questions about the legal status of AI-assisted works and who owns the copyright to them. In both the European Union (EU) and the United States (U.S.), there is still much debate and legal interpretation surrounding this issue.
Copyright Standards Under EU and U.S. Law
The European Commission has established criteria for determining the copyrightability of "works" under EU law. To qualify as a "work," the output must fall into the literary, scientific, or artistic domain. Additionally, it must be the result of thr author's own intellectual effort, meaning that there must be some level of human involvement in the creation process. The output must also reflect originality and creative choice. Finally, it must be "expressed" in a tangible form that allows it to be perceived, communicated, or reproduced in different forms such as text, music, or paintings.2
The U.S. Law has adopted a similar approach to determining eligibility for copyright protection as the EU law. According to The Copyright Act of 1976, a work can be eligible for copyright protection if it is an original work of authorship that is fixed in a tangible medium of expression. For a work to be deemed original, it must be created independently and possess a minimum level of creativity. The Copyright Act also sets out several categories of works that are protected under U.S. law, including musical, literary, and architectural works.3
Evaluating both jurisdictions, although the Court of Justice of the European Union states that copyright protection extends to original works that have been created as a result of the author's own intellectual creation in its 2009 Infopaq Judgement4, it does not specifically address the AI-assisted works. Therefore, an AI-assisted work could have copyright protection if it meets the abovementioned criteria. In other words, it can be said that the involvement of AI in the creative process does not automatically exclude copyright protection.
Likely in the U.S., The Copyright Act (17 U.S.C. § 102) does not explicitly address AI-assisted works, but the US Copyright Office has issued a statement that copyright law only registers works created by a human being5 in its Compendium. Based on this statement, it can be said that AI-assisted works may not be eligible for copyright protection under the current U.S. law.
The U.S. Copyright Office's (USCO) recent ruling in February 2023 on Kris Kashtanova's 18-page graphic novel, Zarya of the Dawn, has the potential to impact the copyrightability of AI-assisted works. The novel was nearly stripped of its copyright registration after the USCO discovered that the work was created with the assistance of AI. Kashtanova's lawyers argued that the use of the AI platform Midjourney was akin to other technologies artists use to create expressive works, such as cameras. The USCO agreed that Kashtanova's original text and the graphic novel as a whole were protectable. However, the USCO disagreed that the individual images were entitled to copyright protection, concluding that Kashtanova lacked sufficient control over the resulting output to qualify as an author.6
Who Owns the Copyright Of AI-Assisted Works?
If a work is generated with the assistance of AI that meets the abovementioned criteria and is eligible for copyright protection, then the next question is who owns the copyright in that work. AI-assisted works raise complex questions regarding authorship and ownership that have yet to fully find a place in both legal systems.
In general, ownership of works belongs to its author under EU copyright law. This means that author is the person who created the work, and they have the exclusive rights attached to this work. However, in AI-assisted works, the line between the creator and the AI tool becomes blurred. Therefore, it might be challenging to determine the owner of the work when AI involves in the game.
In line with our previous explanations, the EU's approach attributes the authorship to AI-assisted works to person or persons individually or collectively engage in creative choices, provided that output qualifies as a "work". The UK's approach to computer-generated works is more forward looking and worthy of consideration at this stage. According to the Copyright, Designs and Patents Act 1988, "the person who has made the arrangements necessary for the creation of the work shall be considered its author."7 This suggests that the human being who has taken the necessary steps to enable the AI to generate the work may be considered the author and rightful owner of the copyright. However, this approach may not fully address the complexities of copyright ownership in AI-assisted works. For instance, if the AI system does the core work in the creative process and produces a work that goes beyond the human input, therefore AI system will be the one that has a significant role, not the human author. There are still some legal gray areas and ongoing debates about the extent to which AI can be considered a "co-author" or "creator" of a work. Even if it is not possible in the current legal atmosphere, it may be worth considering the possibility of the individual who designed the AI system or supplied the information utilized to train it could be seen as the creator of the AI-assisted work. However, this approach may have been subject to criticism for potentially giving AI developers too much power without providing enough protection for individual creators.
On a similar approach, Article 17 of The Copyright Act protects "original works of authorship," which implies a human touch in the process.8 This requirement is further clarified in the Compendium, which says that "The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being."9 Thus, it is evident that US copyright law excludes anything other than humans, which also excludes AI, from claiming copyright ownership.
In September 2021, the Review Board of the U.S. Copyright Office rejected an AI algorithm to obtain copyright protection for an image.10 The artist, Steven Thaler, tried to copyright the image named "A Recent Entrance to Paradise" on behalf of the DABUS AI system he created. He argued that the system was capable of independent creativity and should be recognized as the author and the owner of the works. However, the board decided that Thaler's AI-created picture lacks "human authorship" criteria which is a vital element for granting copyright protection.
In practice, companies that develop generative AI technologies appear to address the issue of ownership through their terms of use. By examining the Terms of Use of DALL·E 2 and ChatGPT, which are both developed by OpenAI, it can be seen that the company assigns the right, title, and interest in the final work to the creator, provided that the terms have been complied with11. This means that the creator, who inputs the text prompt, is considered the owner of the work, and has the rights to it. Regardless of whether the final work has copyright protection or not, the creator is deemed the owner of the output.
As can be seen, the rapidly advancing technology of AI has created numerous gray areas in terms of copyright law. For instance, it is still debatable whether an AI-assisted work qualifies for copyright protection or whether the AI developer should be granted such protection. These copyright issues will only become more pressing as AI continues to evolve and produce increasingly complex works. To address these concerns and protect the rights of creators, new laws and regulations are likely to be required.
Footnotes
1. WIPO Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence, WIPO/IP/AI/2/GE/20/1 REV. May 29, 2020. Accessible at https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=499504, Last accessed February 18, 2023
2. Trends and Developments in Artificial Intelligence – Challenges to the Intellectual Property Rights Framework; September 2020, p. 79-85. Accessible at https://digital-strategy.ec.europa.eu/en/library/trends-and-developments-artificial-intelligence-challenges-intellectual-property-rights-framework, Last accessed March 2, 2023
3. 17 USC § 102
4. Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] ECR I-6569. Accessible at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62008CJ0005 , Last accessed March 1, 2023
5. USPTO, Compendium of U.S. Copyright Office Practices , (3rd ed. 2017). Arts. 306 and 313(2). Accessible at https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf , Last accessed March 5, 2023
6. Letter from Robert J. Kasunic, Copyright Office, to Van Lindberg, Taylor English Duma LLP, re: "Zarya of the Dawn" (Registration # VAu001480196) Feb. 21, 2023 Accessible at https://www.copyright.gov/docs/zarya-of-the-dawn.pdf, Last accessed Feb 25,2023
7. Copyright, Designs and Patents Act 1988 § 9(2)
8. 17 U.S.C. § 102(a)
9. USPTO, Compendium of U.S. Copyright Office Practices , (3rd ed. 2017). Ibid., Chapter 300, p 7. Accessible at https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf , Last accessed March 5, 2023
10.U.S. Copyright Office Review Board, "Re: Second Request for Reconsideration for Refusal to Register A Recent
Entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR # 1-7100387071)", February 2022. Accessible at https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf , Last accessed February 20, 2023
11. OpenAI Terms of Use. Accessible at https://openai.com/policies/terms-of-use Last accessed March 10, 2023
