Man vs. Machine – the battle for originality

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Now we all know there have been big leaps in technology throughout the last 10 years. We are stepping into the realms of artificial intelligence (AI). However, a question that springs to mind is if an AI robot was to create an original piece of work, who owns the copyright? In this article, the MIA’s Intellectual Property partner, Briffa, delves into whether or not the law requires a human author…

Presently, we are not there yet with AI to create original pieces work but we are not far off, so the question does need to be raised.

Copyright is an unregistered right, it is concerned with protecting the work of an intellect (albeit human or AI) such as protecting literal, dramatic, musical and artistic works like scripts, music, photographs, paintings, sculptures, and even technology based works such as programs. Copyright is the protection of works that have been expressed and not the ideas.

All original works of an author, set down in material form, have immediate copyright protection. “Original” doesn’t mean that the work is new, fresh and innovative, but simply that it originated from the author, that is, it is not copied from somebody else.

Does the law require a human author?

Looking firstly at the UK law of copyright, the test of originality would allow for copyright in AI generated art to subsist even though there is no human author. The Copyright, Designs and Patents Act 1988 (CDPA) expressly states circumstances where “no human author of the work” and how to determine authorship in such circumstances. Also under CDPA it is much easier to accept AI machinery to exercise skill, labour and judgement.

However the EU differs from the UK copyright laws. The EU test for an author’s own intellectual creation requires a human author. The case of Painer sets out the requirement for human attributes in the creation of IP. These attributes are ‘personality,’ ‘free’ and ‘creative choices’ and ‘the stamp of the author’s touch.’

As new apps are coming out that have a tendency of having its own personality (like the Amazon Echo or apps that create their different melodies or even designs). It is questionable (although we are stretching the concept slightly!) to say that these types of apps/machines can produce works that are classed as ‘free and creative of their own choices’ and giving their work its ‘own personal stamp and touch.’

The EU decision and requirement can be argued that it is more likely to accept certain animals to have ‘personality’ and give their own ‘personal touch.’ Although as we see in the US this is not the case for animals, so what chance does an AI have?!

It was seen in the US courts where a monkey had begun taking selfies and the photographer later used these selfies in their book. It was questioned as to who owned the copyright in these images and if the monkey owned the copyright whether its rights have been infringed. The US courts held that animals cannot own copyright as animals cannot sue (but surely an AI could?! Well it could potentially) and there is no express authority that animals can sue or file for infringement (even with the assistance of the human).

In a quick summary, the UK would potentially accept AI ownership of copyright work whereas the EU and US requires a human author. So upon Brexit (which could be April or May now), the UK courts would retain their traditional originality test for copyright so even in the case of computer generated works with no human author, copyright could subsist.

Don’t forget that MIA members benefit from a free thirty minute consultation and special rates on all intellectual property and general commercial matters. Contact alice@mia.org.uk for the details if you’d like someone to ease your legal headache!

www.briffa.com