As AI technology continues to advance, the question of copyright ownership for AI-generated images becomes increasingly important. With AI systems capable of creating highly realistic and original images, the issue of who owns the rights to these works becomes increasingly complex and contentious.
Under traditional copyright law, ownership is granted to the person or entity that created the work. However, in the case of AI-generated images, it may be difficult to determine who the "creator" is. If the AI system is considered to be the creator, then the copyright may belong to the person or entity that owns or operates the AI system. On the other hand, if the person who trained the AI system or provided the data is considered the creator, then they may own the copyright.
The question of AI-generated copyright ownership has already come up in some legal cases. In 2018, a monkey took a selfie with a camera left unattended by a nature photographer, and the photographer claimed copyright ownership of the image. However, a court later ruled that the monkey was the true author of the photograph, and therefore the photographer had no ownership rights. While this case involved a non-AI system, it highlights the legal complexity of determining authorship and ownership in non-human contexts.
Another legal case involving AI-generated images is the dispute between artist Richard Prince and photographer Patrick Cariou. Prince used Cariou's photographs as the basis for a series of works, which he altered and then sold. Cariou sued Prince for copyright infringement, but the court ultimately ruled that Prince's use of the images constituted fair use. While this case did not involve AI-generated images, it raises questions about the extent to which derivative works created using other people's material can be considered original works.
Some experts argue that AI-generated images should be treated as works of collaboration between the AI system and its operator or trainer, with ownership shared between them. This approach would recognize the creative input of both the AI system and the human operator or trainer, who provided the data or parameters that the AI system used to create the image.
Others believe that the law should be updated to explicitly address the issue of AI-generated works and determine a clear ownership framework. This could involve creating a new legal category of "AI-generated works" or clarifying existing copyright law to determine ownership based on the degree of creative input from both the AI system and the human operator or trainer.
In conclusion, the question of copyright ownership for AI-generated images is a complex and evolving legal issue that currently has no clear answer. As AI technology continues to advance, it is likely that this issue will become increasingly important, and it will be up to legal experts and lawmakers to determine a clear framework for determining ownership of these works.
Well, to our surprise, the above well written article is, in fact, generated by ChatGPT when provided with the input text prompt "Who owns the copyright in AI-generated arts?". Imagine this: if the article were to be published without any alteration, in this scenario as a literary work, would I be considered the copyright owner of the article? Additionally, would I be infringing the copyright of ChatGPT?
So who should have the copyright ownership towards the image generated by AI?
First, we need to understand how copyright subsist in an artwork. It is important to consider eligibility criteria under the Malaysian law. According to section 7(3) of the Copyright Act 1987, an artwork must demonstrate there has been sufficient effort expended to make the work original in character and fixed in a tangible medium for expression to qualify for copyright protection. Here, the crux for the subsistence of copyright is that:
- work must be produced (expressed) with sufficient effort; and
- work must be original.
Malaysian legislation has made it clear that a copyright subsists only in works that demonstrate sufficient effort expanded towards the originality of an Artwork. As such, a mere human involvement, by providing a text input prompt, in the creation of an AI-generated image does not automatically confer copyright ownership in the absence of sufficient effort expended. If the individual is able to establish that there is sufficient level of contribution in the creation of the work then they may be the owner of the artwork. Similarly, if an individual makes substantial alterations towards the AI-generated image to create derivative work under Section 8 of the Act, they may then be eligible for copyright ownership in the resulting work.
In the scenario where AI-generated image is substantially produced by the AI, assuming the AI is considered a legal person, then the AI should be the copyright owner of the image. However, Malaysian copyright law does not explicitly address whether an AI can claim ownership and authorship. In the United Kingdom, the Copyright, Designs and Patent Act 1988 (CDPA 1988) already includes provisions related to computer-generated artwork. Section 9(3) of the CDPA 1988 states that, in the case computer-generated artwork, the author shall be taken to be the person by whom the arrangements necessary for the creation of work are undertaken.
As an illustration, let's consider a scenario where a graphic designer creates a piece of art using a computer. Without a doubt, the rightful author of the art is indeed the graphic designer and not the computer, which serves merely as a tool for designer to complete their work. The graphic designer is considered an author because, logically, he has applied his creativity, skills and experience to the art.
While examining the provision, it seems to address the issue of ownership. However, who can say with certainty who made the necessary arrangements?
Could it be:
- The person or organisation that developed the AI software?
- The person or organisation that "trained" the AI software? or
- The user, by providing their free and creative inputs into the software?
One should understand the AI software frameworks, such as OpenAI' DALL E or Stable Diffusion, are machine learning models that use existing images, most likely protected by copyright, to generate new images without critical thinking. These new images essentially consist of elements copied from existing images. While not delving into the Pandora's box of AI infringing the copyright of the original artwork it was based on, we shall consentrate on the question of whether copyright subsists in the new AI-generated image, which relies on whether it has undergone substantial alteration. By drawing an analogy to the designer, the creator of the AI Image Generator software may argue for copyright ownership over the new AI-generated images as they have invested significant effort to create the AI software, as a tool, that generates the images. However, this argument may seem far-fetched since the essence of intellectual property protection is to safeguard the expression of ideas. The AI-generated image is not derived from the software creator's idea.
So can authorship being given to AI?
Although the cases mentioned in the article generated by ChatGPT may not reflect Malaysian copyright legislation, they serve as an examples on how a court can rule that a monkey can be considered the true author of an artwork. If an animal is allowed to be an author, why not AI? However, It's worth noting that humans and AI are fundamentally different from one another. Unlike humans, AI lacks curiosity, sensibility and personality. AI-generated image software is not sentient and do not have the ability to think and act like a human being.
Until and unless there is a clear legislation regarding AI copyright ownership, the focus should not be whether an AI can be the rightful owner for the image generated; but rather whether an individual can claim authorship over an image generated by an AI. One thing for sure is that, the law on AI generated work should be updated to address the issue on AI ownership.
The controversy over the ownership of an artwork is only relevant when an infringement process is underway, and the involved parties seek to recover their losses. Even if an AI rightfully owns an artwork, it lacks the legal capacity to bring a course of action against its infringer. Therefore, it is impractical to determine whether an AI can hold a copyright when the laws governing this area remains uncertain.
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