Legal Outlook podcast 4

Legal Outlook podcast 4: transcript

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Anita Cade:

Hello and welcome to Ashurst Legal Outlook. My name is Anita Cade. I'm Global Practice Head of IP and media and partner at Ashurst. In today's episode, I'm joined by my colleague, Nina Fitzgerald, IP and Media Partner at Ashurst. This episode is the fourth in a series dedicated to artificial intelligence. Join me as I speak to Nina about the relationship between AI and creativity, what happens to work created by AI, and how AI and copyright is viewed differently across the globe. You're listening to Ashurst Legal Outlook. 

Welcome, Nina. We now move discussion to AI and copyright, and I wanted to jump right in and ask you whether it's possible for an AI system to actually be creative.

Nina Fitzgerald:

Well, that is certainly a loaded question. Creativity has long been considered a uniquely human quality. However, the growth in computing power means that AI can now create outputs, such as artistic works, songs, news articles, which are arguably independent of human creativity. For example, I know, Anita, that you have seen The Next Rembrandt, which is an artwork created by an AI system. The system was trained using all 394 known works of Rembrandt. 

The artwork created is in Rembrandt style, but it was created by the AI system, which determined the appropriate subject matter, a white male between 30 to 40 years, wearing black, wearing a hat facing to the right. And then the computer was programmed to analyze particular points on each of Rembrandt's paintings, and using that data, the AI system then produced unique facial features adopting Rembrandt's techniques. And I'd like to invite listeners to check out the show notes where there's a link to The Next Rembrandt artwork. 

Equally, there are examples of AI systems analyzing stock market data and producing news articles as well as songs being created. So while people will certainly argue with me on this, there is a strong basis for asserting that computers are now being creative. So if I created a piece of art, wrote a song, or pinned the words to the next New York Times Best Seller, I'd be entitled to copyright. In other words, copyright law would give me protection over that work or my publisher, of course, but what are the threshold requirements for copyright protection in Australia? 

The two basic requirements to be entitled to copyright protection is firstly, that a work must have an author. The Copyright Act in Australia requires an author to be a qualified person for copyright to subsist. A qualified person is defined as either an Australian citizen or resident, or through various treaties that the Australian government has entered into, a person entitled to protection under Australian copyright law. 

There's also a second hurdle and the high court in IceTV held that in order for a work to be entitled to copyright protection, that work must be original and originality requires a degree of human ingenuity or independent intellectual effort.

Anita Cade:

Is that true of all AI generated works? Can anything be copyrighted if it's been AI generated?

Nina Fitzgerald:

So applying the criteria I mentioned just before, AI is likely to meet some significant hurdles at both levels. Firstly, AI is not a person and therefore can arguably not satisfy the qualified person requirement. In relation to the second hurdle, it appears that originality requiring human into ingenuity or independent intellectual effort may not be found to be applicable in relation to AI created works, and this is where the monkey comes in. 

So Naruto is a macaque who cheekily took equipment belonging to a British photographer and proceeded to take a selfie. It's a very long story, but ultimately PETA, the People for the Ethical Treatment of Animals charity, sued the photographer claiming that Naruto, the monkey, owned the copyright in the picture. Listeners can view the photo that Naruto took of himself through a link in the show notes. 

The matter ultimately settled, but the U.S. Appeals Court affirmed that Naruto could not own the copyright, even though he took the photo and therefore, animals are not entitled to copyright. And I bring this up and make the point because A. monkeys are exciting as a general subject matter, but also this case is likely to be analogous to any application to have copyright granted to a computer created work. 

In Australia, the closest analogy that the courts have considered is the Telstra and phone directories case, which is less exciting than a photo taken by a monkey. But considered where the copyright subsisted in phone directories, which were largely compiled by computer processes, while humans were responsible for maintaining the databases from which the phone books were formed, the court found this was not sufficient to meet the originality requirement because there was no human input or originality in the creation of the work itself. Equally, I consider that an AI creative work is likely to suffer the same fate.

Anita Cade:

Thanks, Nina. And that seems to be the position in Australia at least, but is it the same the world over? The different jurisdictions have different positions on this?

Nina Fitzgerald:

So there are different positions around the world on this, and you, of course, have to consider the jurisdiction in which you want your copyright to apply, and in the UK, there are provisions which allow copyright to subsist in AI created works. And this is achieved by attributing authorship of the works, not to the AI system itself, but to the creator of the artificial intelligence machine or computer program. 

So the UK Copyright Designs and Patents Act provides that the author of the work, which is computer generated, shall be the person who made the arrangements necessary for the creation of the work. And this applies where it's a computer generated work, and that means that the work is generated by the computer in circumstances such that there's no human author of the work. And the rationale behind this legislation is to create an exception to the requirement of human authorship, and this was deemed necessary to provide due recognition and protection for work that goes into creating a program capable of independently generating works, even where much of the final work's originality is contributed by the machine.

Anita Cade:

That's really interesting because one aspect of U.S. law that we became aware of during the Naruto case in particular is that the U.S. seems to take a relatively similar approach to Australia on this issue, doesn't it? In that it doesn't have an express provision in its copyright legislation that deals with AI generated works as the UK does, and it's interesting then that the UK has adopted that kind of approach. Do you think there's any likelihood that Australia will follow suit, and is there any indication that we would introduce something similar?

Nina Fitzgerald:

Well, in December 2019, the World Intellectual Property Organization called for public submissions as part of a consultation on AI and IP policy and comments were submitted by various member states and individual industry groups, including the Australian government. And the government didn't provide any conclusive remarks, that means that we can't be sure what the government is thinking at this stage, but there were some interesting questions in this government submission about what might be considered an AI generated copyright work and how much of a role AI should have in order to be considered the creator. So while I don't want to be found to be predicting where the government is going, this may suggest that the government is considering some reform.

Anita Cade:

Thanks, Nina. Yes, I don't think any of us want to be predicting what the government is thinking at the moment, but thank you. And so it seems from what you've said today, that AI created works in Australia are unlikely to be capable of protection as copyright works, although in some jurisdictions, such as the UK, they may potentially be protectable, which is really fascinating. And I suppose for Australian businesses considering this issue and wondering how they protect their works, if those works have been created in Australia, then it seems that they really need to be looking for some angle of an Australian author to attach to the creation of the work to seek to satisfy the threshold requirements for copyright protection in Australia. 

Well, thank you all for listening. To hear more Ashurst podcasts, including our dedicated channel on all things environmental, social, and governance, that's ESG, please visit To ensure you don't miss future episodes, subscribe now on Apple podcasts, Spotify, or your favorite podcast platform. And while you're there, feel free to keep this conversation going by leaving us a rating or a review. Thanks again for listening and goodbye for now.

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