Artificial Intelligence (AI)

The rapid rise of artificial intelligence-driven communication and creation tools has outstripped the pace of legislation. Existing rights, obligations and protections provide some guidance, but as the legislation does not explicitly mention AI, there are some ambiguities which we are only beginning to navigate. For greater certainty around ownership,  authorship and liability,  legislative reform will be required. In the absence of legislative reform, existing and emerging case law can provide some insights.

Uses of AI in the Creative Industries

Artificial Intelligence already has a number of applications pertinent to the creative industries. These include:

• generation or editing of textual works (e.g. ChatGPT);
• creation of art and digital images (e.g. Dall-E and Midjourney)
• generation of programming code (e.g.Copilot)

Copyright of AI-Generated Works

Works are afforded copyright protection in Australia if the author is a human who has contributed "Independent intellectual effort".

• The Author is Human: AI tools do not currently have legal status and cannot own copyright. Works solely created by Artificial Intelligence are therefore not eligible for copyright provisions in Australia.
• Independent Intellectual Effort: Intellectual efforts require the exercise of personal judgment and discretion. Activities include research, analysis, investigation, evaluation, selection, arrangement and expression. 

ChatGPT confirms it is not the copyright owner of its outputs - but you might not be either.

If you solely rely on AI to create your images/text and cannot demonstrate that you contributed significant human effort, then the creative output may not be protected by copyright: you must exert intellectual effort. There are currently no clear guidelines for what would constitute sufficient effort however so there is currently ambiguity, particularly in artworks where an artist might provide additional instructions or even manipulate the image independently to arrive at the final output. A 2009 Australian law case involving NineTV set a precedent for intellectual effort several years ago, however this threshold is low, particularly given the subsequent advances in the use of computers as generators of content.

A Word of Caution

A further complexity is the compliance of the original materials used to train the AI. During training, sets of data and images are often used. Australian copyright legislation does not contain any specific exceptions for data mining or the use of works for machine learning. It is likewise unclear whether the existing exceptions allowing use of copyrighted works would apply in such situations.

If AI training utilised illegally copied materials and the output generated for you can be connected to these, there is a concern you could be issued with a takedown or infringement notice from the original copyright owner.

Reuse and Attribution

As solely AI-generated works are not covered under Copyright Law, they are not afforded moral rights: this means that acknowledgement/attribution is not required. If a human contributed enough "independent intellectual effort" to be considered an author, then their full moral and commercial rights must be upheld: this includes acknowledgement.

Either way, in the spirit of transparency, it is recommended to acknowledge AI was used in generating the work.

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