To what extent are the UK and EU originality tests different?
According to the authors of 'Copinger & Skone James on Copyright' (17th Edition), a leading UK practitioner's text, "there is no difference of substance between "intellectual creation" on the one hand and the exercise of "skill" or "judgment" in making choices on the other" (para 3-216).
In practice, this may well be true for all or most traditional types of literary, dramatic, musical and artistic works. If an artist paints a portrait of a person, it is virtually impossible to imagine that one test is satisfied but the other is not.
However, it is possible that the use of AI in art may change this. This will be the case if one of the originality tests requires a human author, but the other does not.
Does the EU test require a human author?
The EU definition of the author's own intellectual creation (AOIC) test requires the work to be the intellectual creation of a human author. This is because the Painer test requires inherently human attributes, such as 'personality', 'free and creative choices' and the 'stamp' of the author's 'personal touch'.
While we may consider – perhaps based on anthropomorphic tendencies – that some apps have personality, eg mobile or home voice assistants, and some robots are also designed to have a personality, it’s stretching these concepts to say that machines can produce artistic works as a result of their own 'free and creative choices' giving such works the 'stamp' of their 'personal touch'. We are more likely to say that certain animals have a personality and, possibly, a personal touch.
If animals could be authors, then could machines be authors too? This analogy fails at the first hurdle. The US courts have already ruled that animals cannot own copyright. In the monkey selfie case, Naruto v Slater (2018), the plaintiff Naruto was a crested macaque from Indonesia. The human defendant Slater, a wildlife photographer, left his camera unattended and Naruto apparently took several selfies with Slater's camera.
Slater published the photos in a book in which he and his company claimed to be the copyright owners. Naruto (with some human assistance) sued for infringement, claiming to be the copyright owner.
The US 9th Circuit Court of Appeals dismissed the claim holding that: (1) if an Act of Congress does not plainly state that animals have statutory standing to sue, then animals cannot sue; (2) the US Copyright Act does not expressly authorise animals to file infringement suits; and thus (3) Naruto's claim failed. It is likely that the UK and EU courts would come to the same conclusion.
In summary, for an artistic work to be original under EU copyright law, it is submitted that there must be a human author.
Does the traditional UK test require a human author?
In contrast, it is likely that the traditional UK originality test allows for copyright in AI generated art to subsist even where there is no human author. First, the UK 1988 Act expressly determines authorship in circumstances where "there is no human author of the work". Second, it is much easier to accept that an AI machine exercises skill, labour and judgment.
Conclusion on originality
If a machine creates a work of art in circumstances where there is no human author, then it is submitted there will be no copyright under the EU originality test.
If, upon Brexit, the UK courts retain their traditional originality test, then even in the case of pure computer generated works with no human author, copyright could subsist.
