Out-Law Analysis 4 min. read
18 Feb 2022, 10:42 am
Fundamental, philosophical issues concerning the application of copyright protections to machine output are raised by UK law makers’ intention to incentivise businesses to make more use of artificial intelligence (AI) systems.
These issues were at the heart of a UK Intellectual Property Office (UKIPO) consultation on AI and intellectual property that recently closed, where the question of whether creative works generated solely by AI technology without any human intervention should be protected by copyright was under consideration.
Publication of the outcome is expected within weeks. Depending on what that outcome is, changes to the Copyright Designs and Patents Act 1988, the primary piece of legislation governing copyright law in the UK, could follow shortly afterwards.
Currently, creative works generated solely by AI are given a special form of copyright protection. If the work is an original literary, dramatic, musical, or artistic work, copyright will subsist in it as a ‘computer-generated work’ for 50 years from the date on which it was made. This is a reduction from the 70 years of protection given to the same works generated solely by a human author, or partly by human author and partly by AI. The UK is one of only a handful of countries that gives any copyright protection to creative works solely generated by AI.
In a number of recently published policy papers and consultations, including the national AI strategy, the UK government has expressed its intention to make the country a world leader in AI, highlighting the potential for economic growth in an environment in which start-ups, scale-ups and technology leaders are incentivised to research, develop, and deploy AI technology. However, this objective raises questions of intellectual property law, including in relation to copyright protection for creative AI output.
One way of incentivising the increased use of AI is to protect the creative output by copyright, giving the ‘person by whom the arrangements necessary for the creation of the work are undertaken’ exclusive rights to exploit the work and an opportunity to recoup their investment costs. The counterargument is that copyright protection is intended to reward creative human effort and so is excessive where the creativity is driven solely by technology.
Proponents of this view highlight the illogicality of the current legal requirement that a computer-generated work must be ‘original’ if it is to receive copyright protection. The concept of originality is defined by reference to human authors, assessed against characteristics which include the judgement, skill and personality put into the work. This begs the question of how this can be assessed in relation to a work created by a machine.
On a more philosophical level, some consider that copyright has its roots in human authorship and creative endeavour and that protecting computer-generated works may promote these works at the expense of human creations, ultimately devaluing human creativity. Further, as AI works can be created very rapidly, some argue that copyright protection for these works unfairly locks out creative entities from a rapidly increasing body of creative forms, with a negative cost to promoting culture and the greater public good.
The challenge for the government is how to balance these competing interests. In the consultation, the government proposes three possible courses of action. The first is to do nothing and maintain the status quo. The UKIPO says this option will be justified if the current approach to computer-generated works were shown to have an incentive effect in encouraging new AI-generated works and investment in AI technology. The UKIPO qualifies this by providing that this benefit must come without unreasonable costs to third parties, including users of these works and human creators.
The second option is to remove copyright protection for literary, dramatic, musical, or artistic computer-generated works altogether, with the intention to limit copyright protection to human creators.
Under this option, AI-assisted – part human/part AI – works with a sufficient level of originality from human intellectual creativity would continue to be protected for 70 years, and ‘entrepreneurial’ works, including sound recordings, films, broadcasts, or published editions made by AI, alone or with a human, would also continue to be protected by copyright for 50 years as these do not have an originality requirement. The UKIPO’s view is that this option will be justified if copyright protection for computer-generated works is not necessary to incentivise their production or has an unreasonable cost to third parties.
The third option proposed by the government is a middle ground, retaining copyright protection for computer-generated works but reducing the term of protection. The duration of protection would be chosen to reflect the effort or investment put into the creation of the works and the capacity of computers to generate works quickly, with little effort.
The UKIPO says that the term should be no longer than is needed to encourage the production of AI-generated works and that a shorter term of protection, for example five years, could be considered. A shorter term of protection would allow third parties to benefit from free use of the work once the protection had expired earlier than the current 50-year term, overcoming concerns about human creators being unable to contribute to art forms being developed by AI alone. The existing 50 years of protection for ‘entrepreneurial’ works generated solely by AI would be retained.
The UKIPO indicates that the third option will be justified if there is evidence that protection for computer-generated works incentivises their production or investment in AI technology, and that a more limited protection period sets a better balance between rights holders and third parties.
The UKIPO acknowledges that it does not currently have the data needed to understand the value of copyright in computer-generated works and the effect on AI investment decisions. It sought in the consultation to obtain this information from stakeholders and asked specific questions around the perceived benefits or otherwise of copyright protection for computer-generated works. The UKIPO also asked for feedback on the approach businesses take to this issue in territories that do not offer the same form of protection and sought views on the scope and term of any reduced form of protection.
The consultation lasted for 10 weeks and closed on 7 January 2022. The UKIPO is currently analysing the responses. The information obtained will inform the UKIPO’s decision on the extent to which legislative change is needed and we expect an announcement within weeks. The commercial implications will be significant. The scope of IP protection is always a balancing act and AI has been a notably disruptive force in the copyright and creative space.
In the same consultation, the UKIPO sought views on the extent to which copyright and other IP protection for documents and databases hinders machine learning and, therefore, the development and deployment of AI technology. Separately, the UKIPO is currently consulting on the extent to which creative works generated by AI should obtain design protection.
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