Following our article on how artificial intelligence (AI) can infringe copyright, an important related issue is whether an AI work itself can attract copyright and who might own that copyright.

The UK and EU law tests for copyright subsistence are that the work must be the author’s intellectual creation, namely an expression of free and creative choices, in order to be original and protectable under copyright laws (Infopaq Case C-5/08, Cofemel C683/17 and Copyright Directive 2001/29/EC). Under UK case law that predates the EU case law, originality also requires that the author has expended time, skill and labour to create the work. It is not settled law as to whether the old UK test for subsistence is even compatible with EU law (which forms part of UK settled law post-Brexit). Interestingly, it is exactly this issue which may influence how an AI case might be decided in the UK courts.

Section 9(3) of the Copyright Designs and Patents Act 1988 (the “CDPA 1988”) does provide for “computer-generated” literary, dramatic, musical and artistic works. This has been interpreted as giving rise to a copyright work where a computer user has provided the creative element (Express Newspapers Plc v Liverpool Daily Post [1985]).

It remains to be seen if a prompt-based generative AI creation would satisfy either the EU case law of the “author’s own intellectual creation” or represent a user’s sufficient time, skill and labour under the old English law test. As mentioned, which is the relevant test in the UK is an additional ambiguity. Any decision would make new law and entirely turn on the particular facts and the extent of the user’s creative input, including the extent of any prompted amendments to the work before it was finalised.

What do the courts say?

In August 2023, a US court in Washington DC held that a work of art created by AI without any human input cannot be copyrighted under US law. However, where a human has input many details and made sufficient changes to a work, a Chinese court has held that a copyright work has been created.

In the Chinese decision of 27 November 2023, the court held that an AI-generated image entitled ‘The Spring Breeze brings tenderness’ was protectable under Chinese copyright law. The plaintiff designed a figure using Stable Diffusion software, which utilised various prompts. He set the parameters for the layout and composition of the image. He made choices and adjusted and amended the image before the final image was obtained. The court held that this process was effectively his aesthetic choices from his own personal judgement and therefore the image warranted copyright protection, owned by him.

In the UK and EU, a similar result on copyright subsistence might be possible on similar facts but is by no means guaranteed. Arguably, the UK is more likely to find copyright subsistence on similar facts than an EU court, given that the EU test is considered “more demanding” (per Arnold LJ in Court of Appeal decision in THJ Systems Ltd v Sheridan [2023]).

As regards authorship and ownership, under section 9(3) of the CDPA, the author is the person who made the arrangements necessary for the work’s creation. In a generative AI example, that might arguably be the AI company, the user or both of them jointly. There may also be relevant terms and conditions on the AI platform regarding the ownership of works. For example, any copyright in a work created using ChatGPT is owned by the user, according to the site’s current terms and conditions.

As we struggle to hold onto our jobs, ensure our children haven’t cheated at their homework and wrestle with yet more existential angst, we need also to keep one eye on this developing line of copyright law.

If you have questions or concerns about copyright infringement, please contact Lucy Harrold.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.