Introduction
You would likely agree if we told you the above image was a hyper-realistic painting of a boy on a beach and be interested in knowing the talented artist who pulled off this impressive masterpiece.
What if we told you the artist here was not a natural person but a generative AI tool known as DALL-E, and all it took to 'paint' this piece, was to type the words, 'an African boy sitting on the beach staring at the ocean with the evening sun over him'. After typing in this phrase, it took DALL-E less than 10 seconds to develop four unique images, the above image being one of them, each conveying the message in the text prompt.
With tools like DALL-E, everyone can play at being an artist. But would that be enough to make us all artists, compared to those who use cameras, paint, and manipulate digital tools like CorelDraw to create original images? If I use ChatGPT to write a poem or an essay, can I rightly call that essay my original work?
That is the central question this article seeks clarity on, consideirn the copyright laws of a few countries. It is important to note that DALL-E belongs to a family of AI tools, broadly described as generative AI, alongside the popular ChatGPT and other similar devices.
To do this, we consider what generative AI is,how it works and the relationship between copyright, generative AI, and the human effort assumption that usually underlies copyright eligibility. We also consider how some copyright laws treat AI-generated works, as well as to posit on treatment under Nigerian law.
Generative AI: An Overview
Generative AI is a class of AI tools capable of generating original text, images, audio, and audiovisual content based on user text-based prompts. The most famous example today is ChatGPT, developed by OpenAI. Examples of different generative AI tools in various content categories are: text, e.g. ChatGPT and Bard; images, e.g. DALL-E and Midjourney; audio, e.g. Amper Music and Aiva; and audiovisual, e.g. Descript and Runway.
Generative AI tools can create original content in whatever category they belong, mainly because they are trained on large datasets (sometimes running into billions) of pre-existing content using unsupervised machine learning models. Unsupervised machine learning models are models designed to discover patterns in datasets without human intervention. For instance, unsupervised learning is fundamental to AI applications used in medical imaging for patient diagnosis and for recommendation engines like YouTube and Netflix.
After learning to detect patterns in the training data, generative AI models can generate original content similar to the training data. There are two broad categories of generative AI tools -Generative Adversarial Networks, or GANS; and Transformer-based models.
GANs create images, audio, and other multimedia. They are trained using multimedia data. DALL-E is an example of a GAN. On the other hand, transformer-based models are trained on the information scraped from the internet to create textual output. ChatGPT is a good example of this.
With this background, this article's next heading will consider copyright in relation to generative AI.
Copyright and Generative AI
Copyright covers a body of rights that creatives are vested with automatically upon creating an original literary work. Copyright generally allows the creator to control the reproduction of the original work, its adaptation, distribution, performance, display, and derive royalties from the commercial proceeds of the work—copyright grants exclusive rights over their creation, usually for 70 years plus the creator's lifetime.
Copyright laws in most parts of the world presume creativity and human effort to assign rights or authorship over a work. Generative AI tools, however, challenge this presumption as they separate creativity or effort from authorship. In creating the image at the beginning of this article, there was little creativity or human effort; as such, it might not qualify for copyright protection.
However, some climes create a different category of copyright to recognize works created with minimal human intervention, granting them protection, albeit for a shorter duration. These climes are thus more friendly for protecting generative AI works. The USA and UK are examples at both ends of the copyright spectrum.
Treatment of Generative AI in the USA and UK
- USA
The copyright regime in the USA broadly holds the position that there must be human effort or creativity for authorship to exist. This position was affirmed in early 2023 when the US Copyright Office ("the Office") revoked the copyright granted to the comic book author because the images in her book were generated using Midjourney.1 The Office believed that the book's text was still covered by copyright as they were the author's original words. The images, on the other hand, were not her work and were not eligible for copyright.
The Office subsequently released copyright guidance to clarify its position on generative AI. It believes that entering a prompt in a generative AI tool cannot be considered authorship, likening it to issuing instructions to a commissioned artist. For a work from a generative AI tool to be eligible for copyright, a human must have selected to arrange the AI-generated content sufficiently creatively, such that the resulting work becomes an original work of authorship, meeting the standards of copyright protection. Where the human modifies or edits the AI-generated content to a certain degree, it may also meet the criteria for copyright protection.2
The Office further stated that the term 'author' under the US Constitution and Copyright Act excludes non-humans and generative AI tools by extension. The Office now requires applicants to disclose the use of AI-generated content in work submitted, explaining the human author's contribution to the job. AI content that exceeds the threshold should not be included in the application. Where the Office learns that a work has significant AI content and the copyright owner did not disclose this upon application, the Office will revoke registration.
- UK
The UK Copyright, Designs, and Patents Act 1988 ("the Act") takes a dual approach to copyright protection. On the one hand, it aligns with the US position, deeming creativity as key to authorship. Works that involve significant human effort are granted copyright protection for 70 years plus the author's lifetime.
On the other hand, the Act further recognizes works with limited human involvement, separating creativity from authorship while granting them protection, albeit for a shorter duration. The Act achieves this by adopting a futuristic definition of computer-generated works. It defines them as works generated by computers in circumstances where no human author exists. This definition is broad enough to capture modern generative AI tools. When the Act was passed, the rationale behind defining computer-generated works this way was to deal with the advent of early AI systems, such as expert systems, which could generate original content in response to queries.
The Act also broadly defines who an author is under copyright. An author of a computer-generated work is the person 'by whom the arrangements necessary for the creation of the work are undertaken'. Providing text prompts to a generative AI tool may be considered 'arrangements necessary' because the AI tool would not create any content without it. There is no requirement to arrange further or edit the work for it to be eligible. Thus, the images in the comic book would be copyright-protected on their own and as part of the book.
Considering the reduced human involvement, the Act defines the length of protection to be 50 years from when the author generated the work. As such, the copyright over AI-generated works may expire during the author's lifetime and enter the public domain.
We have now engaged two spectrums of how copyright law treats generative AI through the USA and UK. We will now consider how Nigerian copyright law treats/will treat AI-generated works.
Generative AI under Nigerian Copyright Law
Copyright in Nigeria is regulated by the Copyright Act 2022, recently enacted to repeal the Copyright Act 1988. The new law recognizes technological protections used to protect copyrighted works and online content which areprovisions absent in the 1988 law.
The Act has no express provisions like the UK law that could serve as a basis for recognizing AI-generated works in Nigeria. It tilts toward the US position, just like the 1988 law, regarding emphasizing human effort for copyright eligibility. Section 2(2)(a) provides that for a literary, musical or artistic work to be eligible for copyright, the creator must have expended some effort on making the work to give it an original character. Section 19(1)(a) goes further to provide that the duration of copyright for literary, musical, or artistic works is 70 years after the year in which the author dies.
Section 108(1) introduces relevant definitions that may raise the possibility of extending copyright to AI-generated works. It defines an author of an audiovisual work or sound recording as the person responsible for the selection and arrangement for the making of the audiovisual or sound recording. Usually, the person who makes arrangements necessary, especially for audiovisual works, is the director. In practical terms, selection and arrangement for a director involve reading and editing scripts, directing film crews and actors, overseeing the production of the final film, and working with other crew members to ensure the movie matches their creative vision.
However, some generative AI tools that can be used for creating or editing videos from scratch pose a challenge to what selection and arrangement means for audiovisuals and sound recordings. Some AI tools, like Descript, Wondershare Filmora, and Peech, help edit existing videos and add additional features. Others, like Synthesia, generate videos from scratch once a script is provided. It also has a library of real-looking human avatars that you can choose from as characters for the video. The software will then lip-sync the content from the script to the chosen avatars; with a tool like this, audiovisual recordings of varying lengths without any of the activity that usually accompanies such recordings. Without any express provision of the Copyright Act 2022, like in the UK, or additional guidance, like in the USA, the status of copyright for generative AI in the film or music industry is uncertain.
For creatives and other users who engage with these tools frequently (where the intention is to use the output of generative AI for commercial ends; or for any other purpose that may require having the right to claim ownership of content in Nigeria), it would be advisable to avoid those AI tools that completely automate the creation process and use only those that serve as an aid or editing tool. This way, the argument for human effort, selection and arrangement can still make such works eligible for copyright protection in Nigeria.
Copyright Infringement in Nigeria Using Generative AI
While the position of the law on extending copyright to generative AI may be vague in Nigeria, the direction is quite clear on using AI to infringe on existing copyright.
Concerning recording or adaptation of a musical work, any of the following conditions must be met:
- The recording or adaptation has previously been made, imported into or made available in Nigeria for retail with the consent or licence of the copyright holder;
- The person behind the adaptation has notified the copyright owner or the relevant collective management organisation.
- The person pays the copyright owner or approved collective management organisation a royalty equal to the rate to the rate of the regular retail selling price of the record.
Going by these provisions, using AI music generators like Amper Music, Aiva, or Soundful to adapt existing musical work will be deemed an infringement of copyright.
Where copies of copyrighted work are made using generative AI and brought into Nigeria, this would be considered an infringement of copyright. Where there is a public performance of the infringing content, and the owner of the place was aware of this fact, they will also be held liable. Where copies of the infringing work are made for sale, hire, or imported into Nigeria, the punishment upon conviction is a fine of not less than N10,000 for every infringing copy, imprisonment for a term not less than five years, or both. However, if the generative AI tool is used to make copies or adaptations for private or domestic use or the copies created by the AI tool are imported into Nigeria for personal or domestic use, it will not be deemed a copyright offence.
Selling, letting, distributing, and possessing (except for private or domestic use) infringing copies is an offence that attracts a fine of not less than N10,000 for each document, imprisonment for a term of not less than three years, or both.
Where the infringing copies generated using AI are uploaded on digital streaming platforms or any platform for hosting online content, the service providers maintaining these platforms may incur liability if they fail to act on a notice to take down from the copyright owner. Upon receiving the notice in the correct format, the service provider must either remove the infringing content or disable access.
Also, developing or importing generative AI software in Nigeria to pirate copyrighted work is an offence that attracts a fine of not less than N1 million, imprisonment for a term of not less than five years, or both. Therefore, persons who intend to develop local generative AI systems, or localize existing systems for Nigeria, must ensure that safeguards are put in place. These safeguards should ensure that copyrighted material is not uploaded on their platform for editing, adapting, or making further copies.
Recommendations
The Copyright Act 2022, while progressive compared to the previous law, is inadequate in a world where emerging technologies like artificial intelligence, the metaverse, and NFTs are impacting the way content is created. Its provisions may protect creatives where generative AI is used to infringe on their copyright but unfortunately falls short in providing a definite legal position on extending copyright to AI-generated work. The genie is out of the bottle, and there is no rolling back the use of generative AI tools by creatives to either create original content or improve their existing content.
There is also no indication that the government is thinking in this direction. The National Intellectual Property Policy and Strategy, released in August 2022, details the short, medium, and long-term plans for developing the Nigerian IP space. It does not mention any emerging technologies and their impact on IP rights.
A further amendment to the Copyright Act may be needed to bring it further in line with modern realities of creative expression. The law needs to be amended to expand what an author is and introduce a definition for computer-generated works that accommodates generative AI.
Ultimately, our laws and regulations need to be more futuristic and continue to evolve with the new age of creative expression.
Footnotes
1. Mattei SE, 'US Copyright Office: AI Generated Works Are Not Eligible for Copyright' (ARTnews.com, 21 March 2023) ) https://www.artnews.com/art-news/news/ai-generator-art-text-us-copyright-policy-1234661683/ accessed 26 April 2023
2. 'Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence' (Federal Register, 16 March 2023) https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence accessed 26 April 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
