Entertainment and Media Guide to AI

Legal issues in AI part 2 - Gavel icon

Read time: 16 minutes


With the technological innovation of artificial intelligence, the question arises as to how to protect intellectual property rights linked to AI. Thus, copyright is at the heart of intellectual property protection in this field, one of the biggest issues being to determine whether AI-generated and AI-assisted outputs can be protected. Copyright is territorial by nature and therefore each country is free, in principle, to afford the benefit of copyright protection to its citizens, animals or machines, as it sees fit. We will see below how copyright is apprehended, particularly in the United States, as well as how copyright infringement issues arise relating to AI systems.

Human-centric concepts of copyright

Notwithstanding, the development of cross-border trade prompted a number of countries, during the 19th century, to create a minimum and shared framework of reference for copyright law across the globe. The first iteration of this was the 1886 Berne Convention, which still applies today. Under this framework, it is possible to say that in copyright terms, the existence of a “work” requires the existence of the following concepts:

  • An expression: i.e., any “production in the literary, scientific and artistic domain” (per Article 2(1) of the Berne Convention);
  • An author: “protection shall operate for the benefit of the author and his successors in title” (per Article 2(6) of the Berne Convention). This requirement for a link between an expression and a physical person is therefore shared between all the signatories of the Berne Convention. By way of example, in the U.S., the registration of a work with the Copyright Office is only authorized if it has been created by a human. In Australia, the Supreme Court refused protection to a database automatically generated by an AI. More recently, the infamous case of the “monkey selfie,” in which the relevant camera equipment was set up such that a monkey rather than a human triggered the photograph, found that animals have no legal authority to hold copyright claims. Creation thus seems to be the prerogative of humans, the fruit of their imagination made art; and
  • Originality [Berne 2 (3)]: referred to by the CJEU as “the author’s own intellectual creation,” is present when authors can exercise free and creative choices and put their personal stamp on the work. Copyright protects the creative work of a human being. The work must therefore be traceable to its author.

In most simple terms, international law appears currently only to contemplate the notion of a copyright work created by a human creator. Where an AI system is truly autonomous, and the works which it creates are devoid of human involvement or creative input, the applicability of most conceptions of a copyright work would break down and the resulting work would likely be deemed public domain.

The situation in which a human creates a work with the help or assistance of AI is somewhat different and raises the possibility that the human controlling the AI algorithm may be deemed the author of the work. In practice, this appears to be a factual matter resting on the degree of human input involved:

  • Where the human input remains creative, i.e. the AI is a mere “tool,” the consensus appears to be that copyright protection is enjoyed by the creator using that tool;
  • However, where the human input is more limited, it appears that in most jurisdictions the resulting work would not be deemed protectable by copyright.

How much input is enough input is a question that courts will be likely struggling with for years to come.

Key takeaways
  • AI is changing the conception of “work” that can be protected under copyright law
  • If a human has guided AI to do work, the question remains how much human involvement is required to enable copyright protection
  • The U.S. Copyright Office will register a work only if the work’s traditional elements of authorship were by a human and not a machine