Dianne Beer, Special Counsel at Thomson Geer and Past President of the Licensing Executives’ Society for Australia and New Zealand, discusses copyright protection in today’s age of emerging Artificial Intelligence. AI-generated works will not be entitled to copyright protection because of the lack of human authorship, she writes.
Dianne will present on the topic, Digital Age and Copyright: Internet and More, at the 7th Annual Intellectual Property Forum: Reforms, Trends and Strategies, on Tuesday, 12 March.
The Emergence of AI
The growing capabilities of Artificial Intelligence (AI) are changing the world as we know it. Ideas once confined to the imagination are now becoming a reality, with AI technology creating outputs either largely or entirely independent from human intervention.
In 2018, an album called I AM AI was the first of its kind to be entirely composed and produced by AI technology, through a music composition software called Amper. Deep learning networks allow Amper to analyse data to learn chords, notes, genres, tempo and song length to independently compose melodies.
The Concept of Authorship
As human interaction in the creation of works reduces or becomes non-existent, the concept of authorship set out in the Copyright Act 1968 (Cth) (the Act) for AI generated output proves problematic. Section 32 of the Act states that copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author was a qualified person. A qualified person is an Australian citizen or a person resident in Australia.
Australian Courts have regarded certain computer-produced output as authorless. In Telstra Corporation Ltd v Phone Directories Co Pty Ltd, the Federal Court held that telephone directories did not contain copyright that was capable of protection. It was determined that much of the contribution ‘was not the result of human authorship but was computer generated’ and that human agents did not exercise ‘independent intellectual effort’ or ‘sufficient effort of a literary nature’.
What Does this Mean?
It follows that AI-generated works will not be entitled to copyright protection because of the lack of humanauthorship. This will have significant consequences for those seeking to commercialise and profit exclusively from AI-generated works. For example, the I AM AI album can be freely sampled, copied and broadcast.
There may be a way to secure copyright for AI generated works. In October 2017, a humanoid robot called Sophia was granted citizenship in the Kingdom of Saudi Arabia. This unprecedented event could add a new dimension to the relationship between AI-generated works and copyright. If Sophia wrote a book, would she now be considered as a qualified person under the Act? Would her work be subject to copyright protection? As the capabilities and potential of AI technology continue to progress, these questions become more pertinent.
In 2018, the Department of Communications and the Arts published a paper entitled ‘Copyright Modernisation Consultation’, commencing the Australian Government’s consultation on reform to the Act. The Department is yet to deliver its final advice to the Government on the proposed changes. Notably, however, the paper omits any direct reference to computer-generated works and authorship.
The United Kingdom has implemented reform in response to the growth of computer-generated works. In this jurisdiction, in the absence of direct human intervention, the author of a computer-generated work shall be taken to be ‘the person by whom the arrangements necessary for the creation of the work are undertaken’.Perhaps it is time for Australia to follow suit in order to update and clarify copyright provisions in line with the progression of AI technology.
Watch this Space
We are on the cusp of unprecedented technological disruption. As the evolution of AI progresses, the impact that this technology has on the law will move beyond copyright and into other areas of intellectual property, such as patents and trademarks. Watch this space.
Special counsel Dianne Beer has substantial experience in commercial and litigious intellectual property and technology matters and in general commercial law. She principally works as a trusted adviser and outside counsel to clients with diverse legal needs that benefit from her long experience and astute advice. She works with clients across a broad range of sectors and specialities, including those with creative or new technology focus and more traditional businesses moving into areas requiring an understanding of internet law and intellectual asset management. Dianne’s principal areas of practice include: Intellectual Property; Technology; Privacy; E-Commerce and Corporate Commercial.
 Copyright Act 1968 (Cth) s 32(4).
 Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 264 ALR 617; Acohs Pty Ltd v Ucorp Pty Ltd(2012) 287 ALR 403.
 Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 264 ALR 617, 621.
 Copyright, Designs and Patents Act 1988 (UK) s 9(3).