At its core, copyright is a part of an artist’s moral and personal right to recognition and respect for their work. In protecting particular forms of expression, copyright legislation attempts to strike a balance between competing interests and policy considerations – without conferring a monopoly on facts or information. [1]
Generative artificial intelligence (AI) has increased in the creation of works, blurring the lines of authorship and ownership. This is a contentious issue in the film industry: an ongoing strike by Hollywood writers from the Writers Guild of America (WGA) and the Screen Actors Guild (SAG) has been protesting against working conditions, inadequate remuneration, and AI – or large language models – beginning to undermine their professions. The WGA has two main stipulations: making sure that literary material will not be generated by AI, and that AI-generated ideas or drafts will not be passed off as source material. This is so that payment terms (such as residual payouts) will be fair, and the use of source material will be adequately compensated.
What are the legal protections for artists in the face of AI? Applying the balance inherent in copyright: once AI is used as a tool of cultural collaboration and production, then authorship may need further protections in connection to creative output. [2]
AI and authorship: a grey area in Australian law
Human authorship is fundamental to Australian copyright law. However, whether copyright subsists in machine learning outputs is yet to be considered in Australian courts. For a copyright to subsist in a work, the work must be original and must originate from an author – a qualified person at the time when the work was made.[3] This also applies to patents: in the recent case of Commission of Patents v Thaler (2022),[4] the full Federal Court also held that it would be a legal impossibility for an artificial intelligence machine to be an inventor of an invention.
At the legislative level, the Copyright Act 1986 (Cth) currently distinguishes between Part III works (literary, dramatic, musical, and artistic works) and Pt IV works, which generally cover products of investment manufactured through technology and machinery, rather than products of creativity.[5] With literary works, copyright legislation typically rewards authors of original works with commercial benefits, as ‘literary works in turn benefit the reading public.’[6] AI complicates this ‘social contract’ between consumers and human creators.[7] This means in instances where AI is involved in generating and creating a work, the Court needs to assess whether intervention by a human author is sufficient enough to confer originality. It may also be a matter of degree: if AI creates a rough cut of a literary work that people then craft or edit before it is finalised, then copyright may well subsist in the final work itself.
The question of who has infringed copyright also runs into problems when dealing with AI. Infringement provisions in the Copyright Act refer to infringement by a person. If human intervention in the work has not been great enough to establish copyright protection over an AI-generated work, then who the copyright owner can sue for infringement becomes an issue. Unlike Australia and the EU, the United Kingdom and New Zealand acknowledge a category of copyright works called ‘computer generated works’ – where the author is a natural person or a body corporate who undertakes the ‘arrangements necessary for the creation of the work’ (though there is no moral right attached).[8] Perhaps this is due in Australia: with AI shifting the landscape of the film industry and bringing the personal rights of artists to the forefront, legislative consideration of whether copyright subsists in generated works would be well received.
To learn more about technology, copyright and intellectual property law, get in contact with our solicitors, Brittany or Chelsea, by calling (03) 95100 988 or emailing [email protected]
[1] IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458, 472 [28] (French CJ, Crennan and Kiefel JJ).
[2] Jasmin Pfefferkorn, ‘Computer-written scripts and deepfake actors: what’s at the heart of the Hollywood strikes against generative AI’ (2023) The Conversation (online), online at 31 August 2023 <https://theconversation.com/computer-written-scripts-and-deepfake-actors-whats-at-the-heart-of-the-hollywood-strikes-against-generative-ai-210191>.
[3] Copyright Act 1986 (Cth) s 32.
[4] 289 FCR 45.
[5] Madeline Gandhi and Marina Olsen, ‘AI, invention and authorship: expanding intellectual property rights to non-human outputs’ (2021) 23(7) Internet Law Bulletin 119.
[6] IceTV v Nine Network Australia, 471 [24] (French CJ, Crennan and Kiefel JJ).
[7] Gandhi and Olsen, ‘AI, invention and authorship’.
[8] Copyright, Designs and Patents Act 1988 (UK) s 9(3).