Robo ART! - Copyright originality

EU v UK tests

Since 1988, the UK's Copyright, Designs and Patents Act¹ has stated who the author of AI-generated artistic works is:

• 178 "computer-generated", in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work.
• 9(1) …"author", in relation to a work, means the person who creates it.
• 9(3) 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".

Whilst it is impressive that UK legislation had included provisions relating to such technically advanced works since 1988, this doesn’t mean it has all the answers. Before considering authorship, and by extension ownership, it’s important to determine whether and when copyright subsists. If there is no copyright in the first place, there is little point in analysing its ownership.

Subsistence of copyright

The UK Act sets out the basic requirements for copyright in artistic works:

• 1(1) - Copyright is a property right which subsists … in … (a) original … artistic works…
• 4(1) … "artistic work" means — (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality…

UK originality

Thus, in order to qualify for UK copyright protection of artistic works, the work must be "original". The traditional test for originality under English law is that the work must satisfy two conditions.

First, it must originate from the author and not have been copied. Second, it must result from sufficient skill, labour and judgment. Only a modest (not insubstantial) degree of skill, labour and judgement is generally needed. English copyright law has traditionally protected relatively mundane works, such as football coupons, lists of football fixtures, railway timetables, shorthand reports of speeches and 25-letter grids for newspaper competitions.

EU originality

The above common law traditional test for originality can be contrasted with the Continental tradition of protecting an author's personality. In general, the former is more based on an economic rational of reward and/or incentivising creativity, whereas the latter is more based on an author's personality rights (as exemplified by moral rights).

Under EU copyright law, two conditions must be satisfied for something to be classified as a 'work' under the InfoSoc Directive 2001/29, which gives authors the exclusive right to authorise or prohibit the reproduction, communication to the public and distribution of their works.

According to the CJEU:

"First, the subject matter concerned must be original in the sense that it is the author's own intellectual creation…Secondly, only something which is the expression of the author's own intellectual creation may be classified as a 'work'…" Levola Hengelo v Smilde Foods (Case C-310/17; 13 November 2018).

The EU test for originality in the context of photographs (a category of artistic work) was set out by the CJEU in Painer v Standard Verlags (Case C-145/10)², namely:

• the work must be the author's own intellectual creation (AOIC)
• it must reflect the author's personality
• this is the case if the author was able to express his/her creative abilities by making free and creative choices
• the author stamps the work with his/her ‘personal touch’.

Which test applies in the UK?

Whilst the UK is a member of the EU, it must interpret any harmonised principles of copyright law in accordance with EU law. In SAS Institute v World Programming [2013] EWCA Civ 1482, the English Court of Appeal recognised that the EU test (which requires the author's own intellectual creation) appears to be a higher threshold than the traditional English test of skill, labour and judgment.

It appears that the test in EU countries for originality for the purposes of subsistence, as well as infringement, is the intellectual creation test. It’s possible to argue that the EU test for originality only applies to authors' exclusive rights under the InfoSoc Directive (ie in the context of infringement) and not to subsistence of copyright (ie whether a work is protected in the first place). However, that is a fairly fine distinction and unlikely to be accepted if tested before the CJEU. This debate may of course become academic in the UK after Brexit.

1 All section numbers in this article are to this statute unless stated otherwise.

2 Following the CJEU's judgment in Infopaq v Danske Dagblades (Case C-5/08) in relation to the author's own intellectual creation test.