What's the issue?
GenAI tools can rapidly produce marketing copy, social media posts, adverts, packaging designs and more. The efficiency and creative power can be seductive, but there's an uncomfortable question lurking in the background: do you actually own any copyright in it?
Protection for computer-generated works
UK law in the form of the Copyright, Designs and Patents Act 1988 (CDPA) provides a 50-year term of protection for computer-generated (literary, dramatic, musical and artistic) works. Computer-generated works are defined in the CDPA as those "generated by a computer in circumstances such that there is no human author of the work".
At face value, this provides a strong argument for the protectability of AI-generated works without a human author, albeit for a shorter (50-year) term. However, there is a wrinkle. The CDPA also provides that copyright only subsists in literary, dramatic, musical and artistic works that are original. UK courts currently follow the EU interpretation of originality, which provides that the work must represent the author’s own intellectual creation and be an expression of that creation. This has been further interpreted to mean that the work must reflect the author's personality through free and creative choices.
There is therefore a tension in the legislation: on the one hand, computer-generated works without a human author (such as wholly AI-generated works) are expressly protected for 50 years; on the other hand, only works that reflect the author's personality and free and creative choices satisfy the originality test.
The Copyright and AI consultation
This tension has been specifically acknowledged by the government in its Copyright and AI consultation, which asked whether protection for computer-generated works without a human author should be retained, amended or abolished. The consultation closed in December 2024, with the government's response being repeatedly delayed since then (although a response is now expected in early 2026).
If Parliament abolishes this provision – which the consultation states is the government's preferred option – wholly AI-generated content could lose copyright protection altogether (although "computer-assisted works" would remain protectable as ordinary original works). This would mean that businesses would not be able to prevent their competitors from appropriating their content, or at least, not be able to prevent it under the law of copyright.
The net result
The net result is that there is currently uncertainty about whether wholly AI-generated works benefit from copyright protection. There is also the risk that Parliament will decide to abolish copyright protection for such works.
How the courts might interpret the current provisions
To date, the UK courts have not had to interpret the CDPA provisions about computer-generated works without a human author. Assuming the CDPA provisions are not amended or abolished (at least in the short term), the UK courts might be called upon to provide an interpretation. There are three broad possibilities:
- The courts might conclude that there is a derogation from the originality requirement for computer-generated works without a human author as the CDPA provision providing for such protection must mean something and the CDPA specifically defines computer-generated works as those with "no human author".
- The courts might adopt a modified understanding of originality for wholly AI-generated works.
- The courts might determine that originality in the user’s creative control over prompts or the creative process is required, although this would seem to cut across the idea that protection is conferred for works with "no human author".
Until a court rules or the government legislates in this area, the tension between these two provisions remains unresolved. We set out some measures businesses can take to mitigate the risks below. These will be particularly important if Parliament eventually decides to abolish copyright protection for computer-generated works without a human author.
Mitigation strategies
Pending clarification on the issue, businesses are encouraged to take proactive steps to strengthen their position. Practical measures that could be adopted to maximise the chances of copyright subsisting in a wholly-AI generated works include:
- Utilise a 'human-in-the-loop' approach: the chances of copyright subsisting in a work will increase if detailed, specific and creative human-generated prompts are used to generate and edit works. Where people substantively guide and edit AI output, there is a greater argument that the work is original and copyright subsists. This will be particularly important if copyright protection for computer-generated works without a human author is abolished such that businesses will have to argue that their works are 'AI-assisted' (such that copyright subsists) as opposed to AI-generated (such that copyright does not subsist).
- Keep a detailed paper trail: record how you created each AI work in the same way that you would record how any other original work was created. This means saving your prompt history, screenshotting your iterations and logging your post-generation human edits. This audit trail might one day prove critical in demonstrating human creative control.
- Introduce substantial human editing: use AI as a tool, not a substitute author. Have humans refine, adapt or combine AI outputs to ensure the final work bears a human creative imprint.
- Use only your own content as AI input: prompting AI using your proprietary material might not only reduce the risk of infringing third party IP but also strengthen the argument that the output stems from your own creative ecosystem.
- Exercise caution in communications: avoid overstating publicly that content is 'AI-generated'. This discretion will help to preserve perceived copyright ownership and value.
- Educate the business: make sure that the business is aware that copyright might not subsist in wholly AI-generated works. Incorporate this into your AI policies. Where AI is being used entirely to create particular types of work, mandate that the matter should be escalated to legal or senior management.
What about ownership of copyright?
Assuming copyright subsists in a particular computer-generated work, a further issue is who owns that copyright. The CDPA provides that, in the case of a literary, dramatic, musical or artistic work which is computer generated, the author shall be "taken to be the person by whom the arrangements necessary for the creation of the work are undertaken". However, there is no guidance on who that person might be.
Common sense would suggest that where a detailed prompt is used to generate an output, the user would be the person by whom the arrangements necessary for the creation of the work are undertaken (and so the user would be the author and – usually – their employer would be the first owner of copyright in the work). However, the matter is not completely clear. Where a less detailed prompt is used, the AI developer might well be the person by whom the arrangements necessary for the creation of the work are undertaken.
Fortunately, the standard terms and conditions of most GenAI platforms provide that the user owns all copyright in AI-generated outputs (although this should be checked on a case by case basis – see our article here). Those negotiating Enterprise Licences with GenAI providers should ensure that they expressly own all copyright in outputs. A provision expressly assigning future copyright is often included in the licence, but care should be taken to ensure that it is specifically enforceable.
What does this mean for you?
While common sense would suggest that copyright must subsist in wholly AI-generated works, the position is not free from doubt. The law hasn't caught up, the courts haven't ruled on the originality requirement, and Parliament is actively considering removing copyright protection for computer-generated works without a human author entirely. While the uncertainty continues, keeping humans in the loop remains the safest way to anchor your AI-assisted creations to solid ground.
