Robo ART! - who is the author of AI created art?

We turn to the question of authorship for a work created by artificial intelligence.

Computer-generated works are defined as ones "generated by a computer in circumstances such that there is no human author of the work": section 178. It may not be realistic for artistic works to be created without any human author at all, but the UK Act provides for this scenario (see below). Where there is a human author of an artistic work, the ordinary provisions of authorship apply, namely the author is the person who creates the work.

In the case of an 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": section 9(3) CDPA 1988. This provision in the 1988 Act seems to resolve the difficult problem of authorship. However, it will not always be clear who undertook the necessary arrangements for the creation of an AI generated artistic work. It could, for example, be the person or people who:

• organised and/or funded the project
• arranged for the coding to be done before the AI was 'taught'
• arranged for the teaching of the AI
• chose and/or selected any input(s) and/or settings for the creation of the work in question.

The arranger is most likely to be at least the person (presumably the artist) who conceived of and organised the project (rather than the programmer and/or artist's assistants).

It is helpful to distinguish between (a) the direct creator of the actual resulting work – which may be the machine and (b) the creator of the general idea and/or maker of the arrangements which enabled the machine creating the work of art.

For example, imagine a spacecraft which records masses of data from Mars and, using machine learning, creates beautiful new images from the data. Here, the resulting works have no direct human author. Not only does the machine create the images, but also such images may be completely unpredictable and unimaginable. However, the project (from the general concept to building the spacecraft, including the AI/machine learning aspect) would almost certainly have been arranged by an organisation or team.

There are likely to be disputes about the authorship of AI-created works. There could be several people and/or companies who claim to be responsible for the underlying algorithms and coding, for example, and some of this may also be open source. Then there are those who may have compiled the data and/or taught the machine at different stages, and so on.

Regardless of current law, it is legitimate to ask whether a machine itself could ever be considered the author and/or own any legal rights, in the same way that humans and corporations can own rights and enforce them. However, this seems unlikely (ie science fiction).

Is human and computer joint authorship possible?

If a work of art is partly created by a human and partly by a machine, could this be a work of joint authorship?

Under section 10, a 'work of joint authorship' means "a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors".

Whilst AI and humans will increasingly work more closely together over time, it seems difficult to envisage the court ruling that the machine (which is not a legal entity) and the human were collaborating. The Act only provides for 'persons' to be authors, not machines. The human artist will likely be an author of works which were the expression of his or her own intellectual creation (EU test) or skill, labour and judgment (traditional UK test). The machine itself cannot own any rights. However, where there is no human author, copyright will be owned by the arranger (see above).

Who is the first owner of copyright (if any) in AI created art?

The author is the first owner of copyright. Human creators will generally be the first owners. Where the author is the arranger of a computer generated work, they will generally be the first owner: section 11(1). If the creator or arranger is an employee, then that person's employer is generally the first owner subject to any agreement to the contrary: section 11(2).

What is the term of protection of AI generated art?

If copyright subsists in a human authored artistic work, the term of copyright protection is generally 70 years after the death of the author: section 12(2). Where the work is computer generated with no human author, the term is 50 years: section 12(7). After 50 years, such a work would enter the public domain meaning it can be freely copied.

Protecting AI created art

By their nature, machines can create works a lot faster than humans. It is therefore possible to envisage numerous machines churning out masses of new works of art. If copyright does not subsist (say because there is no human author and the AOIC originality test is not therefore satisfied), then there would be no copyright prohibition on people or machines copying and otherwise exploiting such works.

Millions or even billions of AI generated works could then be available to copy for free, assuming that the works themselves do not infringe. This could potentially affect the value of art. It could also create a new market of curation, whereby humans (or other machines) would pick out the very best works from the billions of art works being generated. It may then be possible for copyright to subsist in the curation process – the free and creative choices to ascertain the best images.

Where copyright subsists in the AI generated art, then the copyright owner can bring infringement proceedings against a third party which copies the work.

This, however, may be easier said than done. The claimant will need to prove subsistence (including originality), authorship, ownership, copying and substantiality (ie that enough of the earlier work has been copied). Boasts such as "look how amazing our new robot is – it created this picture all on its own", may count against the claimant trying to prove originality.