“If I could say it in words there would be no reason to paint.” – Edward Hopper

Over the last few years, the use of artificial intelligence (AI) software and tools by artists to generate art (AI generated art) has been gaining popularity.  In this article, Monique examines the copyright framework in Australia and how it applies to AI generated art.

What is copyright and how does it work?

The copyright system is designed to protect and incentivise the intellectual endeavours of those who engage in creative mediums such as writing, music and art. Copyright effectively allows these persons to have exclusive right to reproduce, publish and communicate their work to the public.[1]

Copyright exists in original literary, dramatic, musical, or artistic work where the author is a ‘qualified person’ at the time the work was made.[2]  A ‘qualified person’ is an Australian Citizen or a person resident in Australia.[3]  This definition of ‘qualified person’ is of importance when considering copyright of AI generated art. 

The definition contemplates the author of the work is a natural person (meaning a human being).  AI is not defined in the Copyright Act, but it could meet the definition of ‘Computer Program’, being a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.[4]

AI generated art

The use of technology and AI systems within creative industries has become more commonplace and more complex and sophisticated.  The use of technology in art can take many forms, such as the use of drawing tablets or computer software like Apple’s ProCreate in order to assist the artist in making their works.  The works created by artists using technology is protected by copyright in much the same way as if the art had been created by hand. 

There are various AI systems, so for the purpose of this blog post we will be focusing on text based AI systems.  This is where the artistic works are generated (created) by an AI system based on a text prompt entered by a user.[5]  The AI system takes the text prompt and generates the artistic works from a database of images. For example, the text prompt could be ‘corgi riding a bike on mars’, the AI would then generate works based on the text prompt.

This begs the question – who then owns the copyright of AI generated art? Is it the person using the platform (the user), is it the creator of the platform, or can copyright vest in the program itself?

The current position in Australia

Telstra Corporation Limited v Phone Directories Company Pty Ltd[6] (Telstra) provides a glimpse into how the Australian courts have dealt with copyright issues and the use of computer software in the past.  The question to be determined was whether copyright could subsist in telephone directories in circumstances where their material form was created by computer software. 

The Federal Court at first instance considered that copyright could not be given to the telephone directories as an ‘author’ needed to be a person who brought the work into existence in its material form.[7]  There also needed to be independent intellectual effort by that person.[8] 

The decision was appealed but upheld.[9]  The appeal judges noted for the purposes of the Copyright Act and the use of computer software in creating the works:

• it is necessary for it to be shown that the work in question originates from an individual author or authors[10] and they need to be a natural person;[11] and
• the intellectual efforts of the author or authors must result in or contribute to the material form of the work.[12] Merely being in control of the automation process or having the idea is not sufficient to say the author contributed to the incarnation of the material form.[13]

Technology and AI systems have certainly come a long way since the Telstra case and it is difficult to know how Australian copyright law will develop in response. If we were to look abroad, the United Kingdom and New Zealand have taken the position of attributing AI generated works to “the person by whom the arrangements necessary for the creation of the works were undertaken”. [14] 

Adopting this position would be a step closer to assisting with the ‘author’ aspect of copyright when it comes to AI generated art but it also presents some further challenges for Australian copyright law to think about:

• Who is ‘the person’? Is it the creator of the AI system or is it the user of the AI system?
• If it is the creator of the AI system, then does it really incentivise creative endeavours if a user’s copyright in the works they’ve created using the AI system goes to the AI system creator? Vice versa, if copyright is attributed to the user, how does this incentivise innovation of future AI systems?

Key takeaways

Unlike other countries Australia’s copyright law hasn’t changed to adapt to the advancements in AI systems.  As such it will be important for those considering using AI generated works, to know what their rights and responsibilities are when it comes to copyright.

Please contact Monique Burr from our Corporate & Commercial team by phone (07) 3220 1144 or email us for advice on copyright or other intellectual property matters.

[1] Copyright Act 1968 s 31 (Copyright Act).

[2] Copyright Act s 32.

[3] Copyright Act s 32 (4).

[4] Copyright Act s 10.

[5] An example of such an AI system is OpenAI’s DALL-E 2 AI system (https://openai.com/dall-e-2/). 

[6] [2010] FCA 44. [2010] FCAFC 149 (Telstra).

[7] Telstra at [3].

[8] Telstra at [6].

[9] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149 (Telstra Appeal).

[10] Telstra FCA at [57] per Keane CJ.

[11] Telstra FCA at [100] per Perram J; [137] per Yates J.

[12] Telstra FCA at [104] – [105], [117] per Perram J.

[13] Telstra FCA at [89] – [90] per Keane CJ; [104] – [105], [117] – [119] per Perram J 118/119; [169] per Yates J.

[14] Copyright, Designs and Patents Act 1988 (UK) s9(3); Copyright Act 1994 (NZ) s5(2)(a).