AI and Copyright: Navigating Intellectual Property in the Age of Machine Creativity

Having spent years reading about intellectual property law and artificial intelligence, I’ve watched with fascination as AI has transformed from a theoretical challenge to a practical concern in copyright law. Just last month, I was advising a major publishing house on rights management for AI-generated content, and believe me, the complexity of these issues continues to astound me!

According to the World Intellectual Property Organization (WIPO)’s 2023 report, AI-generated works have increased by 285% since 2020. This explosive growth has created unprecedented challenges for our traditional copyright frameworks.

Legal Framework for AI-Generated Works

International Treaties and Conventions

1. Berne Convention for the Protection of Literary and Artistic Works (1886):

• Article 2(1): Definition of protected works
• Article 5(2): No formalities requirement
• Article 7: Duration of protection

2. WIPO Copyright Treaty (WCT):

• Article 4: Computer programs protection
• Article 5: Compilation of data protection
• Article 8: Right of communication to the public

European Union Legislation

1. EU Directive on Copyright in the Digital Single Market (2019/790):

• Article 2(6): Definition of text and data mining
• Article 3: Text and data mining for research
• Article 4: General text and data mining exception
• Article 15: Protection of press publications

2. AI Act 2023 (Regulation 2023/XXX) provisions on AI-generated works:

• Article 28(1): Transparency obligations
• Article 52: AI system registration requirements
• Article 69: Codes of conduct for AI creators

UK Legal Framework

1. Copyright, Designs and Patents Act 1988 (CDPA):

• Section 9(1): Authorship of work
• Section 12(7): Computer-generated works
• Section 178: Definition of computer-generated work

Notable UK provision: Section 9(3) CDPA defines the author of a computer-generated work as “the person by whom the arrangements necessary for the creation of the work are undertaken.”

US Legal Framework

1. US Copyright Act (17 USC):

• Section 102: Subject matter of copyright
• Section 106: Exclusive rights
• Section 201: Ownership of copyright

2. Code of Federal Regulations (37 CFR):

• §202.1(a): Human authorship requirement
• §313.2: Works that lack human authorship

Landmark Cases and Their Implications

United States

1. Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022):

• Upheld USPTO’s rejection of AI system as patent inventor
• Established that inventors must be “natural persons”
• Implications for copyright authorship

2. Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018):

• Although focused on animal authorship, established principles relevant to non-human creators
• Reinforced human authorship requirement

United Kingdom

1. Thaler v Comptroller-General of Patents [2023] UKSC 49:

• Supreme Court rejected AI systems as patent inventors
• Implications for copyright protection of AI-generated works
• Reinforced human involvement requirement

2. Nova Productions v Mazooma Games [2007] EWCA Civ 219:

• Established principles for computer-generated works
• Defined scope of protection for software-assisted creation

Current Legal Challenges

Authorship and Ownership

1. Training Data Issues:

• Use of copyrighted works for AI training
• Fair use/dealing considerations
• Licensing requirements

Legal basis: Article 4 of EU DSM Directive provides exception for text and data mining, but with opt-out provision.

2. Attribution Requirements:

• Section 77 CDPA: Right to be identified as author
• Article 6bis Berne Convention: Moral rights
• 17 USC §106A: Visual artists’ rights

Infringement and Fair Use

1. Transformative Use Analysis:

• US: 17 USC §107 four-factor test
• UK: Fair dealing provisions under CDPA
• EU: Article 5 InfoSoc Directive exceptions

2. Substantial Similarity Test:

• Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991)
• UK: Designer Guild v Russell Williams [2000] UKHL 58

Practical Guidelines for AI Copyright Compliance

Based on current legislation and case law, here are essential compliance steps:

1. Documentation Requirements:

• Training data sources and licenses
• AI system involvement disclosure
• Human creative input records
• Output verification procedures

2. Rights Management:

• Clear attribution protocols
• License documentation
• Chain of title records
• Liability allocation

Case Study: AI in Creative Industries

Let me share a recent project I advised on. A major publishing house implemented AI for content creation:

1. Compliance Measures:

• Documented human oversight process
• Implemented attribution system
• Established rights clearance procedure
• Created audit trail system

2. Legal Safeguards:

• Training data licensing
• Output verification
• Rights documentation
• Liability insurance

Emerging Trends and Future Considerations

1. Legislative Developments:

• EU AI Act implications
• US Copyright Office AI initiatives
• WIPO consultations on AI

2. Industry Practices:

• Hybrid authorship models
• AI attribution standards
• Licensing frameworks

Conclusion

The intersection of AI and copyright law continues to evolve rapidly. From my experience, successful navigation requires a balanced approach that respects both innovation and traditional IP rights principles.

Remember: The key is maintaining comprehensive documentation and ensuring meaningful human creative input in the process.

References

1. World Intellectual Property Organization. (2023). WIPO Technology Trends: Artificial Intelligence.
2. European Union. (2019). Directive 2019/790 on Copyright in the Digital Single Market.
3. United States Copyright Office. (2023). Compendium of U.S. Copyright Office Practices, Third Edition.
4. UK Intellectual Property Office. (2023). Guidance on AI and Copyright.
5. Federal Register. (2023). Copyright Office AI Policies.

Legal Cases:

1. Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022)
2. Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018)
3. Thaler v Comptroller-General of Patents [2023] UKSC 49
4. Nova Productions v Mazooma Games [2007] EWCA Civ 219
5. Feist Publications v. Rural Telephone Service, 499 U.S. 340 (1991)
6. Designer Guild v Russell Williams [2000] UKHL 58

Legal Disclaimer: This article reflects the state of the law as of October 2024. Given the rapidly evolving nature of AI and copyright law, always consult current legal advice for your specific jurisdiction.

📚 Further Reading

For those interested in exploring similar themes, consider:

• “Superintelligence” – Nick Bostrom – it’s one of my all-time favourites
• 7 Essential Books on AI – by the pioneers at the forefront of AI
• Ethical Implications of AI in Warfare and Defence – very interesting read

Avi Perera

Avi is an International Relations scholar with expertise in science, technology and global policy. Member of the University of Cambridge, Avi’s knowledge spans key areas such as AI policy, international law, and the intersection of technology with global affairs. He has contributed to several conferences and research projects.

Avi is passionate about exploring new cultures and technological advancements, sharing his insights through detailed articles, reviews, and research. His content helps readers stay informed, make smarter decisions, and find inspiration for their own journeys.