In
Although the dispute eventually settled out of court, it raised unique issues about the nature of copyright ownership and challenged the foundational principle that creative works must be authored by a human to attract copyright. As we plunge deeper into the digital age, the concept of authorship is being further muddied in respect of non-human authors - that is, works created substantially or wholly through artificial intelligence (AI).
The COVID-19 pandemic has emphasised the need for societies, workforces and even entire nations to mobilise quickly to work, learn remotely and wholly embrace technology. In equal measure, it has emphasised society's commendable ability to do this, as we continue to bear witness to the many creative and collaborative outputs yielded through a time of mass isolation. Creative industries have been hit exceptionally hard by the pandemic, particularly in respect of live performances and television and film production.
In some fortunate cases, these industries have been able to adapt and shift from requiring a physical presence to inhabiting and collaborating in online spaces. As human-to-human collaboration is disrupted by the pandemic, we are seeing a rise in human-to-computer collaboration. As we look towards a post-pandemic world, we anticipate that the role of technology will be elevated even more so. With these drastic technological shifts in mind, this article explores the impacts of AI on copyright law, particularly in relation to traditional authorship constructs.
In
Indeed, this issue has already been tested to some extent by Australian courts. In
As a society, we have become increasingly comfortable with the idea that AI can be applied to produce non-creative outputs, such as data processing and analytics. We have even largely accepted the fact that, in some instances, AI can modulate or even replace the work of humans in particular industries. There has traditionally been resistance, however, to the notion that AI could parallel, or even come close to mimicking, the human imagination.
However, there are a number of examples that demonstrate the creative capabilities of AI.
For example, in 2018, 1 the Road by
Paving the way for works like Goodwin's was a Japanese novel co-authored by an AI system in 2016, aptly titled The Day A Computer Writes A Novel, which passed the first round of screening in the Hoshi Shinichi Literary Award. The novel was generated by reassembling words and phrases deconstructed from a template novel authored by the human team working with the AI program. Although the team created a choice-matrix for the AI program to follow, the human input in the wording of the novel is arguably more evident than Goodwin's in 1 the Road, as demonstrated by the novel's closing paragraph (translated by a report in
"I writhed with joy, which I experienced for the first time, and kept writing with excitement. The day a computer wrote a novel. The computer, placing priority on the pursuit of its own joy, stopped working for humans."
The novel was entered in the prize two years after
There are also a number of musical and artistic works which have been artificially created by non-human intelligence. For example, an AI machine developed by Facebook AI research,
In the music world, American singer-songwriter
These examples are by no means exhaustive and as AI continues to advance in leaps and bounds the list will only grow. The 'computer-generated' works contemplated by the Australian Full Federal Court in
The copyright system has been designed to protect and incentivise human intellectual effort. It does this by creating a framework in which, among other incentives, authors are rewarded financially for their work when it is used by others, and those who seek to circumvent this system are penalised. This framework is destabilised by the concept of AI authors - if AI-generated works are not protected by copyright because they have not been created by a human author then, theoretically, it follows that they could be freely exploited by anyone. This could have a chilling effect on investment in AI systems to produce creative outcomes.
One way for lawmakers to deal with this issue is to attribute authorship to the creator of the AI system. Indeed, other Commonwealth jurisdictions such as
Even if
Some commentators have drawn attention to the complexities brought about by AI over other technological advancements. For example, "Microsoft developed the Word computer program but clearly does not own every piece of work produced using that software". 14 Rather, the copyright in those works is attributed to the user. However, the user's contribution in works generated through artificial intelligence is likely to be much less significant. For this reason, it would seem to make the most sense to attribute copyright ownership to the creator of the AI program. This would likely also have the flow on effect of stimulating the invention of, and investment in, creative AI systems.
In other jurisdictions, AI machines themselves have been given the status of creator. For example, music composing AI, Aiva (Artificial Intelligence Virtual Artist), recently became the first AI composer to be officially recognised by SACEM, the
Attributing authorship to the creators of AI systems may, however, be problematic from an infringement perspective. For example, if an AI system creates a work that is substantially similar to a pre-existing copyright work, will the creator of the AI system be responsible for that infringement? Is this an unintended consequence that goes to show just how much work legal systems have to do catch up to these technological advancements? This will surely be an area for further consideration in the near future.
A further consideration is how the law will deal with moral rights. Moral rights are distinct from economic rights under copyright law in that they attach to the individual author and cannot be assigned to another person, not even the copyright owner. These rights are an important element in the philosophical matrix of copyright law as they provide a sound legal acknowledgement of the integrity of the creative endeavour and help to further the objective to incentivise the creation of new works. 16 In this case, moral rights should theoretically attach to the individual human authors responsible for the creation of the AI system itself.
However, it will be interesting to see how this will play out in practice, particularly if and when these AI systems are used by people other than the creator. Will these users be required to attribute the creator each time they produce work via the AI system? What about instances where unsavoury creative works are produced using the AI system - will the creator's right against derogatory treatment be triggered? These are just some of the questions that come to mind.
Anxieties about the human authorship test in the Copyright Act are not new. In fact, over twenty years ago, the Australian Copyright Law Review Committee voiced concerns about the extent to which the Copyright Act in force at the time accommodated 'the increasing, indeed almost ubiquitous, use of computers in the creation of copyright subject matter'. 17
As outlined above, there are already a number of economic and ideological considerations for Australian lawmakers to consider, and this list will only grow as AI technology advances.
Other common law jurisdictions around the world have already taken action to adapt to these advances, and Australian lawmakers will need to move quickly to ensure that Australian copyright law can cope with the many complexities brought about by the role of AI in content creation, particularly as we move into a post-pandemic world.
Footnotes
1
2 Copyright Act 1968 (Cth), s 32.
3 Luke Dormehl, 'What is an artificial neural network? Here's everything you need to know', Digital Trends,
4
5 Ibid, 621.
6
7 Ibid.
8 Elgammal et al (2017) 'CAN: Creative Adversarial Networks Generating "Art" by Learning About Styles and Deviating from Style Norms', paper presented at the
9 Elgammal et al (2017) 'CAN: Creative Adversarial Networks Generating "Art" by Learning About Styles and Deviating from Style Norms', paper presented at the
10 Jacca-RouteNote, 'Is the future of pop music in artificial intelligence?', RouteNote,
11
12 Copyright Act 1994 s 5(2); Copyright, Designs and Patents Act 1988 (
13 Copyright Act 1968 (Cth) s 22(4).
14
15 AI Business, 'Aiva is the first AI to Officially be Recognised as a Composer',
16
17 CLRC,
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