copyright artificial-intelligence
Who if anyone owns copyright of algorithmically produced works?
<p>The image below is generated in real time by a Generative Adversarial Network trained on existing works of art (try reloading the page).  The process is <a href="https://arxiv.org/pdf/1706.07068.pdf" rel="nofollow noreferrer">described in their paper</a> which also demonstrates that it is indistinguishable by humans from art generated by contemporary artists and shown in top art fairs.  They make no claim of copyright, freely provide the code that produces it and similar techniques have been used to produce <a href="https://thisxdoesnotexist.com/" rel="nofollow noreferrer">many forms of work</a> that would be copyrightable if produced by a human.</p>
<p>Can we say if it would be possible to successfully claim/defend copyright on such work in any way?  Has anyone actually managed to defend such a claim?  I am aware of the <a href="https://www.bbc.co.uk/news/technology-58668534" rel="nofollow noreferrer">different</a> <a href="https://www.theguardian.com/technology/2021/jul/30/im-sorry-dave-im-afraid-i-invented-that-australian-court-finds-ai-systems-can-be-recognised-under-patent-law" rel="nofollow noreferrer">decisions</a> that have been made around AI as an inventor in patent law, but copyright seems very different.  This question is somewhat prompted by <a href="https://law.stackexchange.com/a/77356/41938">this answer</a>, but the question is different.  Any jurisdiction would be interesting.</p>
<p><a href="https://thisartworkdoesnotexist.com/" rel="nofollow noreferrer">Click to see: Generative Adversarial Network produced work of art</a></p>

<p><a href="/questions/tagged/germany" class="post-tag" title="show questions tagged &#39;germany&#39;" rel="tag">germany</a>
I am reasonably sure that works like this would be Public Domain, i.e. not copyrighted in the first place. In Germany, copyright (or more precisely, <em>Author's Right</em>) can only be held by a <em>natural person</em>, which is a legal term of art that essentially means &quot;human being&quot;. There are two groups of natural persons involved here: the programmers and the creators of the works which are part of the training set. However, I can't see how either group could have a reasonable claim of copyright.</p>
<p>Note: there have been similar discussions about GitHub Copilot, an AI that writes code for you. It is my understanding that the process used by GitHub Copilot is roughly comparable to the process used here. With GitHub Copilot, there have been instances where significant snippets which are part of the training set have appeared in the output with only minor alterations. In this case, it is likely that the original author will have copyright over that portion of the output.</p>
<p>However, <em>IFF</em> a human being were actually involved in <em>selecting</em> specific works, then there is probably a copyright based on the creative decision of selecting <em>this particular</em> work and rejecting all the others. This is similar to the classic textbook example of a driftwood sculpture: the creative process here is not creating the sculpture but choosing to pick up <em>this particular</em> piece of driftwood instead of the hundreds of others on the beach.</p>
<p>So, if you simply generate these works and publish <em>all of them</em>, there is no copyright. If you generate a large batch and then <em>select</em> a certain number, then the person who made the selection might hold a copyright.</p>

<h2>The work is public domain</h2>
<p><a href="/questions/tagged/australia" class="post-tag" title="show questions tagged &#39;australia&#39;" aria-label="show questions tagged &#39;australia&#39;" rel="tag" aria-labelledby="tag-australia-tooltip-container">australia</a></p>
<p>To have original copyright a work must have a <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ca1968133/s32.html" rel="nofollow noreferrer">qualified person</a> as author: “qualified person means an Australian citizen or a person resident in Australia.”</p>
<p>The <a href="https://www.legislation.gov.au/Details/F2023C00068" rel="nofollow noreferrer">Regulations</a> extend coverage to works published in international jurisdictions “as if the foreign work or subject‑matter were made or first published in Australia.” So, the still require a “qualified person” but the definition would be changed to substitute the foreign nationality/residence.</p>
<p>Australian courts have held that AI can be listed as inventors (but not owners) of patents, the Patents Act does not require an inventor to be a person the way the Copyright Act does for an author. Current <a href="https://www.maddocks.com.au/insights/whos-work-copyright-in-ai-generated-artwork" rel="nofollow noreferrer">case law</a>, <em>Telstra Corp Ltd v Phone Directories Co Pty Ltd</em> [2010] FCAFC 149, found that a predominantly computer created telephone directory was not subject to copyright due to the absence of an author.</p>

<h2>Nobody has a copyright</h2>
<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="tag-united-states-tooltip-container">united-states</a></p>
<p>A few years ago, there was a discussion <a href="https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute" rel="nofollow noreferrer">if a monkey can have copyright</a>, but the case settled. Now, USPTO enacted a rule together with the library of congress on 16th march 2023, that <a href="https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence" rel="nofollow noreferrer">only a human can create a copyright interest.</a> See their rule (emphasis mine):</p>
<blockquote>
<p>II. The Human Authorship Requirement</p>
<p>In the [Copyright] Office's view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, <strong>excludes non-humans</strong>. The Office's registration policies and regulations reflect statutory and judicial guidance on this issue.</p>
<p>[...]</p>
<p>III. The Office's Application of the Human Authorship Requirement</p>
<p>[...]</p>
<p><strong>When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.[31] As a result, that material is not protected by copyright and must be disclaimed in a registration application.[32]</strong></p>
</blockquote>

<p>Since the &quot;contemporary artists&quot; have not been dead for 70 years, their works are copyrighted and may be used as training data only with an appropriate license, which should specify terms under which derived works can be produced and whether royalties must be paid in return.</p>
<p>For practical purposes, that means it makes no real difference if the trainer, operator or prompt gives acquire partial copyright, their contribution is dwarfed by that of the artists that produced the original works.</p>

<p><a href="/questions/tagged/united-kingdom" class="post-tag" title="show questions tagged &#39;united-kingdom&#39;" aria-label="show questions tagged &#39;united-kingdom&#39;" rel="tag" aria-labelledby="tag-united-kingdom-tooltip-container">united-kingdom</a></p>
<p><a href="https://www.legislation.gov.uk/ukpga/1988/48/contents" rel="nofollow noreferrer">U.K. legislation</a> allows for computer-generated work to be the subject of copyright. A work is computer generated when the work is &quot;generated by computer in circumstances such that there is no human author of the work.&quot;</p>
<p>Further,</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>However, it is <a href="https://www.shoosmiths.com/insights/articles/who-owns-the-ipr-in-ai-generated-artwork" rel="nofollow noreferrer">widely recognized that this leaves ambiguity about who this would be in any given instance</a>.</p>
