AI and Copyright: Navigating Creative Rights in the Digital Age

The rise of artificial intelligence (AI) that can carry out activities which until recently could only be done by human intelligence is having an incredibly positive impact in daily life. As in any case in which technology takes a significant leap forward, legal and normative systems are left inapplicable or outdated and need time to evolve in order to efficiently regulate new realities without impeding further development.

Human creations such as works of art, new technologies or products are protected by Intellectual property (IP). Think of IP as a way of giving creators a big, encouraging pat on the back. It's all about rewarding people for their hard work and creativity.

The main types of intellectual property are patents, trademarks, copyrights, trade secrets and industrial designs. Each protects different aspects of human creations. In this article we will look specifically at copyright.

Imagine you’re a writer, and you’ve just finished writing an amazing book. Or maybe you’re a musician who’s just composed a fantastic song. Copyright is like a special badge that says, “Hey, this creation is yours!” ensuring creators get the credit, control, and rewards they deserve. Unlike other IP rights, copyright protection is automatically granted to original works of authorship as soon as they are created. However, while registration is not required to have copyright protection, there are several significant benefits to registering your work with the U.S. Copyright Office.

What is the purpose of the copyright system?

• Protect Creators: Imagine you just wrote a fantastic story or composed a beautiful song. Copyright is like a special shield that protects your work from being copied or used without your permission. It ensures that your creation remains yours.

• Reward Hard Work: Creating something original takes time, effort, and talent. Copyright helps you get the rewards you deserve for your hard work. When people buy your book, listen to your music, or watch your movie, you earn money, just like you would for any other job.

• Encourage Creativity: Knowing that their work will be protected, people are more likely to create new and exciting things. This leads to more books, music, art, and innovations for everyone to enjoy. Copyright helps keep the world full of creativity.

• Boost Confidence: When you see that something is copyrighted, you can trust that it's an original work by the creator. This builds trust and helps people make informed choices about what they read, watch, or listen to.

• Support Sharing: Copyright doesn't mean you can't share your work. In fact, it helps you decide how you want to share it. You can give permission for your song to be played on the radio or your artwork to be displayed in a gallery. It’s all about giving you control.

How does AI challenge the existing copyright laws?

The impact of advanced AI tools that can create works of art, such as stories, images or music has made it necessary to clarify if such works of art are protected by copyright and if so, who owns such work. Take into consideration the fact that AI artistic tools need users to input a series of instructions or prompts in order to generate the right outputs.

We will use the example of Editpad’s AI Story Generator, an AI tool that allows users to input a story topic, a series of other parameters such as length, story type (genre), set the creativity level and the age group intended readers would be. In just a few seconds the AI, following the specific rules set by its human user, will create a unique story.

Who owns the copyright over this work? Maybe the user that set up the unique instructions that serves as the basis for the story? How about the owner or creators of the AI tool? Perhaps it should be considered a joint work? Can the AI be the owner?

Take into consideration that there is a large amount of work and effort put into the creation of this AI, specifically engineered to create stories. A massive amount of curated data sets have been imputed. Furthermore, a great amount of work, details and imagination may have been input by the user when creating the “story topic”. The story topic itself may in itself be a literary work protected by copyright.

Can copyright be owned by a non-human entity?

The answer to this was made clear by US courts in the famous "monkey selfie" case.

In 2011, a monkey named Naruto took several selfies using a camera belonging to a British wildlife photographer named David Slater. The monkey pressed the camera's shutter button, resulting in some striking self-portraits. David Slater published the photos and claimed copyright over them, asserting they were part of his work as a photographer.

In 2015, the animal rights organization PETA (People for the Ethical Treatment of Animals) filed a lawsuit on behalf of the monkey, Naruto, arguing that the monkey should own the copyright to the photos since it was the one who actually took them.

The central question was whether a non-human, such as a monkey, can be considered the author of a work and thus own the copyright.

The case reaffirmed that, under U.S. copyright law, only humans can be considered authors and hold copyright. Non-human entities, including animals, cannot claim copyright.

The "monkey selfie" case highlights the importance of human authorship in copyright law. As AI technology evolves, similar questions regarding ownership and protection of AI-generated works are becoming increasingly relevant.

Therefore, in the case of the story that results from the AI tool and its user, there is no debate. There is no copyright protection for AI-assisted or AI-generated works. Only human beings can be creators of works protected by copyright, and as the work in this case would be “created” by the AI tool and this is not a natural person, copyright is not granted over the work.

This has been upheld in a number of cases:

• Stephen Thaler's "A Recent Entrance to Paradise" image: Stephen Thaler, using his "Creativity Machine" algorithm, created an image and sought copyright protection. The U.S. Copyright Office denied his request, stating that the work lacked the necessary human authorship. Thaler's appeals argued that the "human authorship" requirement was outdated, but the office upheld its decision, emphasizing that current copyright law only protects works originating from human creativity​

• Jason Allen's "Théâtre D’opéra Spatial": Another notable case involved Jason Allen, who used the generative AI system Midjourney to create a sci-fi image that won an art competition. The U.S. Copyright Office denied copyright protection, citing the lack of human involvement. This decision echoed the earlier rulings that emphasized human authorship as a prerequisite for copyright eligibility​

• Kris Kashtanova's "Zarya of the Dawn": In this case, the U.S. Copyright Office granted copyright protection for the text and the arrangement of a graphic novel but denied it for the AI-generated images within the work. This ruling highlighted that while the human contributions could be protected, the parts generated by AI alone could not​

It is clear that works of art created through AI tools do not grant anybody copyrights. However, this will surely lead to cases in which works created using AI tools will be declared or presented as 100% human creations. This in itself will inevitably give way to numerous conflicts and litigation. This is not a demonstration in any case that the copyright system is obsolete. Just as in any case of plagiarism or copyright infringement, it will be determined by the evidence that parties can provide in each case.

Although current laws do not grant copyright to AI-generated works, ongoing discussions and legal challenges suggest that future legislative changes might address these issues as AI technology continues to evolve. Human authorship requirements may change in the future and not be as “absolutest” as are currently required for copyright protection. This is not to say that the consistent theme of the necessity of human creativity and involvement in the creation process for a work to be eligible for copyright protection will disappear, however, legislative changes should be considered for cases in which a human artist uses AI as a tool and significantly guides the creation process, allowing them to be recognized as the author, similar to traditional uses of tools and software.

In our next article, we will explore the copyright protection of prompts or instructions imputed into AI tools. Stay tuned!