Copyright & AI generated work

The Intellectual Property Code of the Philippines provides that copyright to literary and artistic works, that are original intellectual creations, exist from the moment of their creation and are protected. (Sec. 172 IP Code)

Among these literary and artistic works are books and other writings, musical works, films and photographic works, ornamental designs or models of manufacture, paintings, sculptures, and other works of arts, as well computer programs and mobile apps, etc.

Generally, the period of protection for copyright in literary and artistic works and in derivative works, starts from the creation of the work and lasts for the entire lifetime of the author plus 50 years.

There is good reason to register a copyright with the proper government agency, as this will put others on notice that the work is protected by copyright and, if anyone wishes to license the work, they will be able to locate the owner.

Rise of generative AI platforms and use of AI

As we have seen, there is the rise of generative Artificial Intelligence (AI) platforms, the most well-known of which is ChatGPT, that have given artists, writers, creators, and even the ordinary person a helping hand in creating literary and artistic works.

The use of these AI platforms have already led to issues on originality of work and whether works resulting from or created by AI are covered by copyright protection and registration.

Is human authorship the foundation of copyright?

In most jurisdictions, human authorship is considered the foundation of registrable copyright, as it seems to be accepted that copyright law is primarily designed to protect the creative expressions of human authors. This means that original works of authorship that are the result of human creativity and intellectual effort, are eligible for copyright protection. Examples of such works include literature, music, art, software, files and more.

While copyright law varies from country to country, there are few common principles that underline the concept of human authorship, which are Originality, Intellectual Effort (not merely through mechanical or automated processes), Form (must be in a tangible medium that can be reproduced and distributed), and Human Involvement (a human author or creator).

There is a debate about whether works created by the various AI platforms should be eligible for copyright protection and how their authorship should be attributed. As AI technology continues to advance, copyright laws may have to evolve to address the complexities arising from AI-generated content and work.

In the Philippines, at least as far as this author is aware, the Supreme Court has not yet had the opportunity to rule on the ownership of works or intellectual property created with the use of AI.

We look to the United States, which has resolved some cases involving the use of AI-created work or related issues.

One early case was the Monkey Selfie dispute, where Naruto, a seven year old Crested Macaque in Indonesia, took a selfie using the camera of photographer David Slater in 2011.

When the selfie photo was posted on Wikipedia’s website, Mr. Slater asked that it be taken down, but this was refused by Wikipedia, which argued the photo is not subject to copyright since an animal took it, and animals can’t own copyrights.

The People for the Ethical Treatment of Animals (Peta) filed a case against Mr. Slater in a California court claiming that it was Naruto that owned the copyright to the picture, and that, by republishing the photo, Mr. Slater was infringing on Naturo’s rights. The judge dismissed the action on the basis that even if Naruto had taken the pictures, animals do not have the standing in a court of law to sue for copyright infringement. The case was settled before the appeal was decided.

‘Naruto’s Selfie”   https://edition.cnn.com/2017/09/12/asia/monkey-selfie-settlement/index.html

Fast forward to 2018, Mr. Stephen Thaler filed an application to register a copyright for an artwork entitled “A Recent Entrance to Paradise,” an AI-generated work produced by one of his systems, the Creativity Machine. The registration of the copyright was denied by the US Copyright Office on the ground that the work lacked human authorship.

‘A Recent Entrance to Paradise’ https://commons.wikimedia.org/wiki/File:A_Recent_Entrance_to_Paradise.jpg

Just recently this 2023, there was the case of the graphic novel, Zarya of the Dawn by Ms. Kristina Kashtanova, who applied with the US Copyright Office for the registration of the graphic novel.

Initially, the copyright office granted protection to Ms. Kashtanova for the entire novel. Upon learning that Ms. Kastanova used MidJourney, a form of generative AI, the Copyright Office conducted a review and amended the registration to a limited copyright to cover authorship over the Work’s text as well as the selection, coordination, and arrangement of the Work’s written and visual elements. However, copyright to the images in the novel that were generated by the Midjourney technology was denied as these were not the product of human authorship. (https://www.copyright.gov/docs/zarya-of-the-dawn.pdf

‘Zarya of the Dawn’   https://jolt.law.harvard.edu/digest/zarya-of-the-dawn-how-ai-is-changing-the-landscape-of-copyright-protection

What is clear so far is that the courts have declined to recognize copyright to works created with AI.

In the case of Zyra of the Dawn, the courts will only recognize the rights of the human creator to that portion of the work that it can establish to have been created by the human. That part of the work which were created by the AI, even if made under the instruction of a human, were not recognized as an original work that would be subject to the protection of our copyright laws.

As we have seen though, humans have created and invented things and tools that would enable us to more efficiently carry out our tasks and work. For example, the typewriter and then the computer, which enabled efficient word processing, editing, and reproduction of written work. The question of authorship in the use of these tools did not seem to be an issue in the past, but now, with technological advancements relating to Generative AI, we are beginning to question whether platforms like ChatGPT, Creativity Machine, MidJourney, and many others remain to be tools or, are now really the “creators.”

It is inevitable that artists and creators will continue to use generative AI platforms as, if they do not, they run the risk of being left behind by their competitors. It is also apparent that the existing AI platforms will continue to improve and advance, and that there are many more AI platforms yet to be launched.

Unfortunately for creators, the cases decided so far may have significant negative repercussions. AI is already being widely used and integrated into the creative process of script writing, music creation, journalism, art, marketing, gaming, software writing, coding of apps and programs, and many more industries and activities.

Based on the interpretations so far, the resulting works may be considered as not being entitled to copyright protection because they were not created by a human. This would mean that that these valuable intellectual property could be legally copied by others or, worse, their ownership questioned.

It is worthy to point out that in many countries, including the Philippines, registration of intellectual property can be made via online filing and submission to the intellectual property office. And since everything is done online, perhaps it would not be beyond the realm of possibility that an AI used to create artistic or literary work, should they ever become self-aware, may then register itself as the author and owner of its work.

Fortunately for us humans, we are not there yet.

(The author, Atty. John Philip C. Siao, is a practicing lawyer and founding Partner of Tiongco Siao Bello & Associates Law Offices, an Arbitrator of the Construction Industry Arbitration Commission of the Philippines, and teaches law at the De La Salle University Tañada-Diokno School of Law. He may be contacted at [email protected]. The views expressed in this article belong to the author alone.)