Can you copyright your AI-generated work?

Charles Courtenay, a Partner in Michelmores' Commercial & Regulatory Disputes team investigates whether works generated by Artificial Intelligence will (ever be able to) be protected by copyright?

Exeter and Devon boast a tech ecosystem comprised of forward-thinking entrepreneurs, innovative organisations, and world-renowned research institutions. A growing number of these entities are exploring the potential of artificial intelligence (AI), and some have achieved remarkable success. 

As a barrister and partner at Michelmores, my fellow partners and I regularly support clients in capitalising on commercial opportunities presented to them by AI, while also guiding them through the myriad of potential legal challenges. A particularly sensitive topic my colleague, Iain Connor, and I want to explore is AI and copyright. 

 In this article, we discuss:

•       Why AI created works are not protected by copyright in the UK;
•       What is needed for such works to be protected by copyright; and
•       How the meanings of ‘original’ and ‘author’ need to change if AI created works are to gain copyright protection. 

So why is the requisite intellectual creativity lacking in an AI generated work so as to prevent such works from obtaining copyright protection?

We need to remember that the primary purpose of copyright law is to reward an author for the creation of an original work. Therefore, governments need to take their time over the question of when (or if) to extend copyright to AI generated works which do not involve real people exercising their creative freedoms. 

Meaning of author

In the UK section 9 of the Copyright, Designs and Patents Act 1988 (the Act) defines ‘author’, in relation to a work, as the person who creates it; and, according to section 154 of the Act, a work qualifies for copyright protection if the author was at the material time a qualifying person. 

AI does not satisfy the definition of qualifying person; something recently confirmed by the UK Supreme Court in a patent context in the Thaler case. 

Accordingly, it will take a legislative change to extend the definition of ‘author’ to the person making the arrangements for an AI generated work before AI works can have an author. 

Meaning of original 

Another problem is that at present, AI generated works are not ‘original’. 

The Act does not define ‘original work’, but case law precedent is that works are original when they are independently created as the "author's own intellectual creation". Independent creation simply means that you create the work yourself, without compromising it with, or copying it from, another pre-existing work. 

AI produced works fail this definition. This is because AI works are neither:

•       Independently created because the AI is mining pre-existing sources (sources which are often copyright protected works in their own right)
•       Nor are they the result of the author's own intellectual creation because the output is based on probability and algorithms not intellect. 

What about copyright infringement?

AI uses all available sources from which to learn and teach itself.  The current controversy - around which there are many legal cases – has arisen because these so-called ‘large language models’ educate themselves from datasets which include copyright protected material such that there is a risk that the AI works will infringe copyright.

So, is AI generated work automatically an infringement of copyright?  Not necessarily. A copyright owner needs to show that a ‘substantial part’ has been reproduced. This could be difficult to establish unless the AI was operating on a very narrow body of underlying texts. 

Legislative changes

Legislation will need to address the definition of ‘original’ to include AI works derived from the works of others and consider whether:

•       Compensation should be paid to the copyright owners of the works on which the AI works are based
•       And the copyright infringement test needs to have a ‘fair dealing’ defence which allows the creation of AI works based on AI's application to an existing body of copyright protected works.  

If you ask AI to write a story for you today can copyright ever subsist? 

Without legislative changes, the answer will depend on the degree of intellectual creativity that the real person, who wants to qualify as the author, applies to the initial draft of the AI generated work.

The more intellectual creativity applied, the more the human author's skill, labour and judgement is likely to qualify their contribution as ‘original’ and create a protectable copyright work.   The person who has in this way applied their intellectual creativity could then claim ‘paternity’ over the work and the legal ’moral right’ to be named as the author.

Conclusions and takeaway points 

Copyright implications for AI generated works are still unclear and rapidly developing. Until new regulatory frameworks are established, the basic principles of copyright will apply which mean AI generated works are not protected by copyright and moreover, risk infringing third party works. 

Therefore, if you want to claim copyright in a work and avoid facing infringement proceedings ask yourself: "am I proud of my work?", "is this really my work?", "is this work original and creative?". If the answers are "no", think again. On the other hand, where an author creates a work without reference to existing subject matter, it will usually attract copyright protection. If you use AI as your starting point, but make that work your own, then copyright may well be available to you. 

About the authors

Charles Courtenay is Partner in Michelmores' Commercial & Regulatory Disputes team. His practice focuses on intellectual property and other complex disputes, with particular emphasis on cross-border, technology, and finance matters. Charles is dual qualified as an English barrister and a California attorney.  Charles is also the 19th Earl of Devon, and in 2018 was elected to the House of Lords as a Crossbench Hereditary Peer where he champions the interests of Devon, and speaks on Technology, Heritage, Agriculture, and the Environment. Charles' legislative work is unrelated to his legal practice. 

Independent of his role at Michelmores, he is the owner and steward of the Powderham Estate, near Exeter. Powderham is a mixed estate combining arable, pasture, forestry, and foreshore, and is centred on the Courtenay family home of Powderham Castle.

Iain Connor is a Partner in Michelmores' Intellectual Property team. His  practice focuses on protecting ideas and innovation for clients across a range of sectors from retail and consumer to hotels and leisure; financial services institutions and technology companies to manufacturers of fast-moving consumer goods and healthcare companies; and education and training to media and sport.

This article previously appeared in Exeter Tomorrow magazine. You can download a digital version here.