The AI Explosion
It’s probably no exaggeration to say artificial intelligence (AI) exploded into the public consciousness in late 2022 and early 2023.
ChatGPT, the AI chatbot from OpenAI, reached an astonishing 100 million monthly active users in January 2023, just two months after its launch, beating out TikTok (nine months) and Instagram (two and half years) in the time taken to reach that figure.
Not as fast, perhaps, but since their public release in 2022, both Midjourney, Stable Diffusion, Stability AI, and DALL-E 2, from OpenAI, have attracted millions of users.
Now capable of producing stunning artwork in seconds, generative AI technology has been used to produce millions of images, music, lyrics, and articles.
The meteoric rise of AI has given new life to the age-old question of whether machines will eventually replace humans, this time in the art and creative spheres, and prompted dozens of lawsuits from those humans battling to establish clear guidelines about copyright.
Artists have sued over alleged use of their work by programmers to train their AI algorithm raising the rather philosophical question of whether a machine is capable of creating art?
The answer has far-reaching real life consequences, particularly in the field of copyright.
Artists, AI and copyright
The generally accepted principle is that copyright laws aim to both encourage authors and artists to create novel works and to ensure that having done so, they are able to receive fair compensation for their efforts.
Which raises the question of whether work created by AI, which is not (yet) sentient and requires no reward or compensation for creating works of art, be afforded the same copyright protections?
For the time being, the legal world has generally replied in the negative, maintaining that only work created by human authors can be protected by copyright:-
- The United States Copyright Office, in denying copyright registration to the graphic novel Zarya of the Dawn generated with Midjourney technology, affirmed that copyright does not protect works created by non-human authors;
- In the landmark Infopaq case (C-5/08 Infopaq International A/S v Danske Dagbaldes Forening), the European Court of Justice ruled that copyright only applies to original works reflecting the “(human) author’s own intellectual creation”;
- In Australia, the Federal Court of Australia ruled that phone directories authored by computers are not protected by copyright, notwithstanding the presence of some input from human editors.
Some countries, however, have decided to address this issue by attributing authorship and thus copyright of computer-generated work to the humans who programmed AI to generate the work. This interpretation was pioneered in the UK under section 9(3) of the Copyright, Designs and Patents Act 1988 (the “CDPA”), which states 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.”
In section 178 of the CPDA, computer generated works are defined as works “generated by computer in circumstances such that there is no human author of the work”, thus acknowledging the possibility of work without human authors.
In passing the bill, the late Lord Young of Graffham, then the Secretary for Trade and Industry, commented “We believe this to be the first copyright legislation anywhere in the world which attempts to deal specifically with the advent of artificial intelligence…the far-sighted incorporation of computer-generated works in our copyright system will allow investment in artificial intelligence systems, in the future, to be made with confidence.”.
This piece of legislation demonstrated remarkable foresight on the part of UK lawmakers, considering the CPDA was drafted in 1987, when computers were just starting to become available to the general public.
Similar provisions soon found their way to the law books of jurisdictions strongly influenced by the UK legal system, such as Hong Kong, India and New Zealand. For example, section 11(3) of the Copyright Ordinance (Cap. 528) of Hong Kong provides that:-
“In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author is taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
On the face of it, these provisions, which will be referred to as the “Arrangement Model” in this article, seem to provide a simple and elegant solution to the conundrum posed by generative AI technology. Whoever does the work in “preparing” an AI to create a work is the author and copyright owner.
It also seems to match the “sweat of the brow” intellectual property doctrine, which states whoever has the skill and puts in the time and effort to create the work deserves protection.
However, I would argue the Arrangement Model does not adequately reflect how modern generative AI operates and creates massive legal uncertainty.
This article will explore the major shortcomings of the Arrangement Model in attributing copyright to AI-generated works.
Prompts, algorithms and iteration
Broadly speaking, modern AI operates via “machine learning”.
It doesn’t rely on direct instructions carefully written into a program by a programmer, which provides precise steps for the machine to follow to complete the task.
Instead, the machine combines large amounts of raw data with iterative and intelligent algorithms to discern patterns in the data from which it can learn to complete the task without any direct input from a programmer.
The output can be improved by feeding prompts to the machine that “learns” by further refining its data analysis to find more complex and efficient patterns without the developers’ intervention or input.
This leads to the first problem under the Arrangement Model.
How to identify the person who “makes the necessary arrangements for the creation.”
Let’s say a user asks the machine to create a picture of a cat with an apple. They would type in a text prompt such as “Create a picture of a cat holding an apple.”
The machine would then search, usually online, for any references or pictures of cats, apples and of cats holding apples. It would then use the algorithms programmed into it to analyse the data, discern patterns and reproduce its own version of a picture.
Further prompts from the user, for example, “create the picture in the style of Van Gogh” would lead the machine to run further data analysis on references to the artist Van Gogh, discern patterns in the painting style then attempt to reproduce those techniques in its own picture.
All of this complicates answering the question of who made the necessary arrangements.
Is it the user who wrote the prompts? Is it the programmers who wrote the algorithms the computer used? Or is it the artists of the original pictures used by the machine in its data analysis?
Arguably it’s “all of the above.”
- The artwork would not be generated but for the text prompts entered by the user;
- The artwork cannot be generated if the developers/programmers had not written the algorithms;
- The artwork cannot be generated if no original pictures are available for the AI to reference and learn from.
It could be argued all of the above, or at least the users and developers, could be joint authors or co-authors, but the present conception of “joint authors” and “co-authors” in copyright laws all pre-suppose a certain degree of collaboration or common design, which is clearly absent in most cases involving generative AI works.
In most cases, developers of AI systems do not collaborate with users in any specific work. They may not have any idea what the users are generating using the AI tools they developed.
That AI programmes can operate autonomously without the developers’ input is the exact purpose of developing AI technology in the first place. So either the definition of joint authorship or co-authorship will need to be changed, or the concept of joint authorship/co-authorship simply does not apply.
Algorithms, not creativity
A related problem with the Arrangement Model is it may attribute authorship to people who have no creative input or even creative intent at all. Notably, the provision of “mak(ing) the necessary arrangements for the creation” does not specify that the arrangements must be creative.
The role of developers in AI is largely about writing algorithms and providing data the machine can learn from using those algorithms. In most cases, developers are not responsible for generating the final work.
Since developers have no creative input in the end product and may not even have any intention to create any kind of artwork, it is arguable that attributing authorship to them runs contrary to the basic premise of copyright laws. A comparable analogy would be that camera manufacturers do not claim copyright ownership over photographs taken by people using their cameras.
Link to the rest at Lexology