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Copyright infringement and AI

Copyright law develops in response to technological changes – and has done ever since Gutenberg invented moveable type. Artificial intelligence is just the latest challenge to established copyright laws, and on past form we can be sure that the rules will prove to be flexible enough to cope up to a point. But in the fullness of time, we can also be sure that the law will have to be amended to deal with new challenges that we can’t foresee at the moment.

The UK government has recently completed a consultation on the topic of AI, which it recognises as crucial to the country’s future prosperity, and intellectual property. In this article, our copyright solicitors discuss copyright law and AI. We also explain what you should do if you have been accused of copyright infringement as a result of using AI.

Are works created by AI protected under UK copyright law?

Copyright protects original works of authorship – literary, dramatic, musical and artistic works – and certain other matters, including films and sound recordings. Being able to identify the author of a work is therefore the first step in working out whether copyright protects it.

When the Copyright, Designs and Patents Bill was going through Parliament in the late 1980s, the Government was pretty pleased about the way it treated computer-generated works. It applauded itself for creating the first copyright law in the world to deal with this emerging issue, which at the time was thought to involve programming a computer to print out a graphic pattern, and not much else. Section 9(3) says that the author of (and therefore the owner of copyright in) a computer-generated work would be the person by whom the arrangements necessary for the creation of the work were undertaken.

It was scarcely earth-shattering, but it worked and it still does, mapping directly onto the AI problem. But that is just the start. Knowing who the author is enables us to assess whether a work is that person’s own intellectual creation, which is the standard the courts have to apply.

If copyright exists in AI works, who owns it?

The existing rules about copyright ownership are clear, although applying them is sometimes tricky. Generally the author of a work is the first owner of copyright in it, and as the law deals with the matter of authorship of computer-generated works it is going to be clear in many cases who is the owner of the copyright. If the author is an employee, and creates the work in the course of their employment, it’s the employer who will be the first owner of copyright, but just because the creator was commissioned by someone else to make the work, however much they were paid, does not of itself alter the ownership position: so as usual people who commission others to make things for them need to be alert to the need for copyright assignments. This will apply just as much when the creator uses AI to make the commissioned work.

So will copyright protect everything made by AI?

What is going to be interesting to see is how the judges approach the question of originality in an AI-created work. When a creator uses a computer as a tool to realise their creative idea – sometimes called the “clever pencil” approach – it is usually fairly clear that the original content of the work came from the person using the computer. AI, however, involves the machine doing at least some of the original work. The user sets the parameters, and the AI machine does the rest. So will setting the parameters amount to that person’s own intellectual creation?

That’s not a question that we can answer at this stage, and it’s never going to be a question to which there is one single answer. It’s always going to be highly fact-specific, and there are sure to be some cases in which the individual puts enough into setting those parameters to get over the originality threshold. Equally, there will be cases in which all the original work has been done by the AI machine.

Can AI own copyright?

There is already an argument about whether an AI machine can be regarded as an inventor for the purposes of a patent application (the Court of Appeal recently said “no”, but only by a majority, and the Supreme Court will consider the case in the not-too-distant future), and perhaps someone will argue that AI should also be the author of a copyright work. Given that there is a rule on the statute book about authorship of computer-generated works, however, that is perhaps rather unlikely. UK copyright law is pretty clear at present, that an author must be a human being – and the chances of Parliament finding time to overhaul copyright law any time soon are slim.

The use of works protected by copyright in AI

AI doesn’t just create new stuff, it uses older stuff in doing so. Of course, there is nothing new there, and creative people have used the creations of earlier creative people since the dawn of time. The difference is that modern technology means that AI can recycle other people’s works much more quickly and extensively, and because they are in digital form copyright law is engaged in a way that it isn’t when a composer hears another composer’s music, or an artist looks at another’s painting, and something about it lodges in their memory. Everything we do with a copyright work in digital form is something that, unless the law expressly permits it, can be controlled by the copyright owner simply because digital technology involves making lots and lots of copies.

The great thing about AI, depending on your point of view, is that an AI machine can draw on a huge corpus of existing material. If you ask AI to create an image in the style of Leonardo da Vinci, it will take cues from da Vinci’s works to which it has access – and, leaving aside the claims of those who have made digital images from the originals, no copyright problems will arise. It’s a different matter if you want to make something in the style of Andy Warhol, for example, or David Hockney.

Cases on issues like this usually come to court in the USA first, and several have. A group of visual artists has started a class action against Stability AI Ltd, Midjourney Inc, and DeviantArt Inc in San Francisco. Stability AI's Stable Diffusion software copies billions of images, enabling Midjourney and DeviantArt to create images in the styles of your choice of artist, and does so without permission. An earlier class action has been filed against GitHub Inc and its business partner OpenAI Inc for allegedly scraping copyrighted source code, to train AI systems.

The key issue for the American courts will be whether this amounts to fair use within the meaning of the US copyright legislation. Whether it would be permitted under UK law is an interesting question. In particular, the law allows copyright works to be reproduced for text and data mining purposes, but the person making the copy must have lawful access to the work, and may only use the material for non-commercial purposes, which (as the government acknowledges) makes it less then helpful for AI users. It also requires an acknowledgement to be given. The government proposes to make the permitted act cover all uses, not just non-commercial ones, although the requirement for lawful access will be retained for the protection of copyright owners.

How to reduce the risk of copyright infringement when using AI

Exposure to copyright infringement actions is a problem both the AI companies and commercial end users. The process of making an image in the style of Andy Warhol entails a lot of copying and processing of existing works by the artist, to produce an end result that looks different from any of them. The finished product may well not reproduce a substantial part of any Warhol image, and therefore not amount to an infringement of his copyright. AI end users would do well to minimise the risk by not asking the machine to make something in the style of a particular artist, though – ask for pop-art rather than a Warhol lookalike!

What to do if you have been accused of copyright infringement

If you are accused of infringement, the most important thing to do is to consult a copyright solicitor with experience of dealing with copyright claims – not just novel AI-related claims. Often, they can be made to go away completely, or at least settled for much less than what is being demanded by the other party.

About our expert

Lindsay Gledhill

Lindsay Gledhill

Intellectual Property Partner
Lindsay is an Intellectual Property Partner at Harper James. She has specialised in intellectual property exploitation and dispute resolution since 1997. She trained and qualified in Cambridge’s top intellectual property firm during the 'dot com boom', then spent four years at top 50 firm, Walker Morris.

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