What do generative AI systems and Celebes crested macaques have in common?
Neither is eligible for copyright protection. At least that is the position of Judge Beryl Howell in the recent case Stephen Thaler v. Shira Perlmutter and The United States Copyright Office. Judge Howell ruled that AI-generated artwork lacks “human involvement” and is, therefore, not eligible for copyright protection.
The Court upheld a decision by the U.S. Copyright Office refusing to grant a copyright licence to Dr Stephen Thaler for artwork generated by his custom AI algorithm, Creativity Machine.
Judge Howell held that human authorship is a ‘bedrock requirement of copyright’ based on 'centuries of settled understanding". These centuries of understanding include another U.S. case in which the Court decided a macaque monkey could not own the copyright of a selfie it had taken on a nature photographer’s camera.
The ruling is not that unexpected. The Compendium of the U.S. Copyright Office Practices states, ‘The U.S. Copyright Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings.’ Similarly, the Office also does not register works produced by a machine.
The question now, of course, is to what extent human involvement is required for work to be afforded copyright protection. With prompt engineering becoming an increasingly recognised and specialised skill in generative AI use, would a meticulously crafted prompt be enough human intervention to attract copyright protection? Maybe not.
There seems to be an inherent tension at present about what is and is not generative AI in the creative process. On the one hand, AI cannot hold copyright as a non-human, but at the same time, it cannot be considered merely a tool to express human creativity.
It seems, at least in this author’s view, that the use of generative AI as a tool for human creativity is currently being viewed almost as if it is cheating: it has become too easy to be creative, and as such, we do not afford you the title of ‘creator’.
In Australia, it remains an unsettled issue. In 2010, the Federal Court held that Telstra had no copyright protection over a computer-generated compilation of data due to a lack of identifiable human involvement.
The most obvious implication of this case is for anyone trying to make (and/or save) money from generative AI content. This includes movie studios, newsrooms and others considering replacing humans with generative AI systems. There is a touch of irony in that a news company, having slashed its staff in favour of the incredibly more efficient and potentially less bothersome AI, couldn’t protect its monetisation of that content through traditional copyright protections.
Kieran Lindsay, CMT Research Officer
This was featured in our fortnightly newsletter published on 25 August 2023. Subscribe here or download it to read it in full: