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". It is not completely clear what "no human author" means, but it could mean no human originality (eg where only a basic prompt is used to generate a work using AI).
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 'standard' copyright works, assuming they are original – see later). This would mean that businesses would not be able to prevent their competitors from appropriating their wholly AI-generated 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 (assuming a court does not find that copyright cannot subsist in these types of work on the basis that the provisions cannot be reconciled):
- 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. For example, they could hold that the originality requirement is deemed to be fulfilled if the work would have been original had it been created by a human. This seems like a particularly attractive option and has been specifically mentioned by the government.
- 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. While we believe that a court (if asked) would try to give effect to Parliament's intention and confer copyright protection for computer-generated works without a human author, the position is not free from doubt. 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. They will also be important if copyright protection is required abroad.
Mitigation strategies
Pending clarification on the issue, businesses are encouraged to take proactive steps to strengthen their position. In particular:
- Utilise a 'human-in-the-loop' approach: for those who want to be certain that copyright subsists in a particular work, making sure that there is significant human involvement in the creative process is likely to be the safest option. It's currently unclear what type/amount of human involvement is required - the government has drawn a distinction between AI-assisted works (for which it says standard copyright protection is available) and AI-generated works (for which it says it is not), although this would not be binding on a court. Using AI as a tool (eg to edit original human works) should be sufficient for standard copyright to subsist in the final work. Opinion is divided on whether standard copyright protection should/would be available in an output generated using creative, detailed and specific prompts (especially for literary outputs). Indeed, other countries (like the USA) have expressly said that a prompt can never be sufficient to confer copyright protection on the output. Post-generation human edits (assuming not banal) ought to benefit from standard copyright protection, but there is uncertainty about whether copyright could then be enforced in the work as a whole (where it consists of a combination of both types of copyright). In some countries (like the USA and EU), protection is only conferred on the edited parts.
- Think internationally and plan ahead. The added benefit of creating with 'standard' copyright protection in mind is that it maximises the chances of copyright subsisting in the work abroad since most countries do not recognise copyright for computer-generated works without a human author. It should also mean that no/few changes are required to the creative process if/when the government abolishes copyright protection for computer-generated works without a human author. Planning ahead for that likely position is sensible now.
- 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 human contributions. This audit trail might one day prove critical in demonstrating copyright ownership and subsistence. This is particularly so as the burden of proving these matters is on the copyright owner and going forward there might be a strong presumption that AI was used in the creative process.
- 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 and consider whether changes need to be made to the way your outside agencies create using AI: changes to policies, agreements and escalation protocols might be needed.
- Watch for developments: it is possible that the government will address some of the uncertainties by amending the CDPA. There might also be more information about the government's thinking (especially on standard copyright protection where AI is used during the creative process) when it publishes its response to the Copyright and AI consultation.
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.
