This article is part 2 of 3 discussing the challenges intellectual property law may face in the age of Artificial Intelligence (AI), looking particularly at authorship issues.

AI technology has already been applied to produce a variety of creative works. For example, Aiva Technologies has produced AI which itself has composed classical music using machine learning techniques. This involves the AI system processing large collections of classical music to generate a mathematical model, which learns the features compromising classical music. The AI system is then able to produce sheet music which can be read and played by musicians. To listen to the classical music created by Aiva Technologies’ AI click here.

The sheet music in the above example would ordinarily, if produced by a human, benefit from copyright protection as a musical work. However, copyright law currently assumes human involvement in the creation of a work. Therefore, it is not clear how UK law would treat AI-created works.

According to section 9(1) of the Copyright, Designs and Patents Act 1988 (CDPA) the author of a work is the “person” who creates it. This raises the familiar question: should AI be recognised as the author or must the law find a peripheral human to name as author? The current state of the law leans towards the latter: section 9(3) of the CDPA provides that in the case of computer-generated literary, dramatic, musical and artistic works, the author is the person who made the “arrangements necessary for the creation of the work”. However, in the case of AI-created works, identifying what the necessary arrangements were is likely to be difficult , particularly as AI becomes increasingly independent.

A further problem arises from the originality requirement, specifically from the integration of the EU test for originality into UK law. This requires a work to be the author’s own intellectual creation (Case C-5/08 Infopaq [2009] ECR I-6569), which reflects the author’s personality (C145/10 Painer [2011] ECR I-12533). On the one hand, if the author is a peripheral human, the work is unlikely to reflect that individual’s personality or be their own intellectual creation because the AI technology would have made the creative decisions. On the other hand, the courts are likely to be reluctant to accept that AI can express “personality”.

There are short-term solutions open to the UK courts which would allow copyright to be extended to AI-created works. For example, the traditional UK test for originality, based on skill, labour and judgement, could be applied as it is not tied to considerations of personality. This would be consistent with section 9(3) which appears to envisage copyright subsistence in computer-generated works. However, given the gradual integration of the EU test for originality into UK law and the increasing independence of AI technology, it seems that legislative action is needed to clarify copyright law’s response to AI-created works.

To find out more about AI and intellectual property, please see article 1 on whether AI can be an inventor and article 3 on infringement.