The Copyright Conundrum: AI-Generated Works and the Question of Authorship
‘The Matrix’ ‘I, Robots’ and ‘Space Odyssey’ are films that depict a world where Artificial Intelligence (AI) attempts to wipe out humanity. While we are as close to being tyrannised by AI as we are to conquering Mars or travelling through time, there are frightening parallels between reality today and the dystopian future depicted on film. Although computers have been involved in the creative process for decades, much like a pen or paper, they only served as a tool to aid the creative output of the author. But today, AI has shifted from assistant to creator. These AI-created outputs can be classified into two categories – AI aided creations (outputs which require human intervention or direction) and AI generated-creations (outputs created without human intervention). This article will focus on the latter.
In 2016, researchers in the Netherlands used AI to create a painting called ‘The Next Rembrandt’. The AI was trained on 346 paintings created by the Renaissance painter Rembrandt Van Rijn. It scanned these paintings and produced a work that was similar in style to the Renaissance painter’s previous works.1 Although the project was a relatively complex one requiring input from various experts in building and programming the software used, it still serves as a great example of the evolving role of AI in the creation of copyright-protected works. The evolution of tech in the last decade is redefining how creative works are made. This poses unique regulatory challenges for legislators who must now contend with questions such as whether AI systems can possess moral rights,2 the duration of economic rights for AI-owned copyright3 and whether AI systems can claim authorship or ownership.4 AI itself cannot own or claim authorship or copyright under Kenya’s current legal regime because section 2 of the Copyright Act grants protection to legal and natural persons only; therefore this paper will examine whether a person can claim authorship of AI-generated works.
Authorship is the foundational pillar of copyright law.5 Every provision in copyright law is tied either directly or indirectly to the author of the creative work. For example, the duration of most economic rights is determined by the author’s life; first ownership of creative works vests initially in the author6; and moral rights accrue to the author alone.7 In considering whether a person can claim authorship of AI-generated works, it is important to determine who (or what) copyright law aims to protect.
When the first ever Copyright Act was enacted in 1710, its drafters sought to create a law which granted exclusive rights to creators, with the view of encouraging the expansion and advancement of knowledge by rewarding authors for their skill and mental effort.8 Little has changed in the years since its enactment and copyright law still leans heavily towards the protection of works which primarily originate from a human source. Courts in the United States, the United Kingdom, EU, Australia, South Africa and more have had to decide on cases involving non-human interventions and they have reached a nearly mutual consensus. In Australia, the court in Acohs Pty Ltd v Ucorp Pty Ltd held that the contested work was not eligible for copyright protection because ‘it was not written by a single human author but was generated by Acohs’s program’.9 In Europe, the CJEU has issued directives in a string of cases involving the threshold of originality in creative works.10 The Painer Case,11 Brompton Bicycle case,12 Infopaq case,13 Cofemel14 and more all conclude that any output wholly generated without human intervention is excluded from copyright protection. In the landmark case of Naruto v Slater, the U.S. ninth circuit court of appeal held that animals could not own copyright.15 While this case specifically addressed the copyrightability of photographs taken by animals, it indirectly touched upon the broader question of copyright ownership for works created by non-human entities, including AI-generated works. The court’s ruling established that copyright protection in the United States is contingent upon human authorship, which implies that AI-generated works may not be eligible for copyright protection unless a human author is involved in the creative process.
But copyright law doesn’t just offer blanket protection to anyone who creates something. In the language of section 22(3), sufficient effort must be expended in making the work to give it an original character.16 In interpreting what constitutes sufficient effort, the court in Nevin Jiwani v Going Out Magazine stated that labour and skill must be expended.17 To sum things up, copyright law aims to protect people who use their labour and skill to create original works. This, therefore, raises the question of whether sufficient labour and skill is expended in adding an element of originality to AI-generated works.
To generate a creative work using AI, all one needs to do is type in a few prompts,generally a sentence or two, directing the AI tool on what output to produce. Does the act of typing a prompt constitute ‘sufficient effort’? If so, would a sentence like “write a 5-minute speech about river pollution in Nairobi in the style of Martin Luther’s ‘I Have a Dream’” count as sufficient effort? And can the resultant speech, written by ChatGPT, be protected under copyright law?
To answer this, we need to determine how much human involvement is required for a work to be considered original. Let’s take photography as an example. Photographs are protected by copyright law, but often, all one does is push a button to capture a scene or image. It can be said therefore, that there are parallels between the simple act of pushing a button and the act of typing a prompt for AI, so what do courts have to say about this?
The Court of Justice of the European Union (CJEU) determined that, ‘a photographer can make free and creative choices in several ways and at various points in its production. […] By making those various choices, the author of a portrait photograph can stamp the work created with his ”personal touch”… Therefore, a portrait photograph is protected by copyright if it is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph.’.18 In Nevin Jiwani v Going Out Magazine, J. Ringera held that ‘…sufficient work (was done) by way of photography, development, design artwork, colour separation, and the publication of the said photographs to confer on them an original character.’19 Much as the act of pushing a button is a relatively simple one, the courts above have found that there was originality in the act of choosing a subject for the photograph, in arranging elements required for the picture and so on. It is evident that a photographer makes creative choices in determining the final output whereas the person using an AI tool leaves it to chance.20 AI-generated works require creative prompts to get creative outcomes, but unlike photography, the prompt writer is not in control of the steps required to bring his or her vision to life.
So far, it has been established that the aim of copyright law is to protect and incentivise human creativity; and that sufficient labour, by way of exercising creative choices throughout the process, is required. Given that AI does not require an incentive to keep producing creative works and that, beyond typing prompts, a person does not participate in the creation of AI-generated works, it is this author’s opinion that a person cannot claim authorship of an AI-generated work under Kenyan copyright law.
This excerpt from Jane C. Ginsburg’s 2003 paper on authorship aptly concludes this article:
‘…in copyright law, an author is (or should be) a human creator who, notwithstanding the constraints of her task, succeeds in exercising minimal personal autonomy in her fashioning of the work. Because, and to the extent that, she moulds the work to her vision (be it even a myopic one), she is entitled not only to recognition and payment, but to exert some artistic control over it.’ 21
1 Section 32 Copyright Act (No. 12 of 2001)
2 Section 31 Copyright Act (No. 12 of 2001)
3 Jane C. Ginsburg, ‘The Concept of Authorship in Comparative Copyright Law’, Jan 10 2003, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=368481
4 Section 31(1) Copyright Act (No. 12 of 2001)
5 Section 32, Copyright Act (No. 12 of 2001)
6 Section 22(3) Copyright Act (No. 12 of 2001)
7 Infopaq International A/S v Danske Dagblades Forening, Judgement of 16 July 2009, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=ecli%3AECLI%3AEU%3AC%3A2009%3A465
8 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV, CJEU judgement of 12 September 2019, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=ecli%3AECLI%3AEU%3AC%3A2019%3A721
9 Naruto v Slater, No. 16-15469 (9th. Cir. 2018) https://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/23/16-15469.pdf
11 Jiwani v Going Out Magazine and Another (Civil suit No. 856 of 2002)
12 Eva-Maria Painer v Standard VerlagsGmbH and others, CJEU judgement of 1 December 2011, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62010CJ0145
13 Jane C. Ginsburg, ‘The Concept of Authorship in Comparative Copyright Law’, Jan 10 2003, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=368481
14 Jane C. Ginsburg, ‘The Concept of Authorship in Comparative Copyright Law’, Jan 10 2003, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=368481
15 Acohs Pty Ltd v Ucorp Pty Ltd, , FCAFC, 16.
16 Eleonora Rosati, ‘Copyright at the CJEU: Back to the start (of copyright protection)’, 2023 https://www.diva-portal.org/smash/get/diva2:1655124/FULLTEXT01.pdf
17 Eva-Maria Painer v Standard VerlagsGmbH and others, CJEU judgement of 1 December 2011, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62010CJ0145
18SI and Brompton Bicycle Ltd v Chedech / Get2Get, CJEU Judgement of of 11 June 2020, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018CJ0833
19 Jiwani v Going Out Magazine and Another (Civil suit No. 856 of 2002)
20 Section 23 Copyright Act (No. 12 of 2001)