Image by Alexandra_Koch via Pixabay

The recent blog post by Matt Hervey provides an interesting summary by someone who clearly has a good understanding of the subject matter. It does seem a bit one-sided in making it sound (to me, anyway) like people, governments or courts who oppose copyright protection of AI-generated works are fighting a rear guard battle and that at some point copyright protection of such works will almost “naturally” happen. If this was the author’s intent, I beg to differ. There are several powerful doctrinal and normative arguments not to protect AI-generated works by copyright when the autonomy of the machine is such that it breaks a sufficiently strong link of causality between humans (programmers, people who trained the machine, even perhaps those who gave a very detailed prompt in some cases) and the machine’s output. I provided a list of arguments for and against protection here. I summarized some of those arguments on this blog.  Many other scholars have taken a similar position, among them Jane Ginsburg and Pam Samuelson and this excellent paper by Ian Kerr and Carys Craig

I do not deny that AI machines can produce valuable content.  I do, however, fail to see a case that there is underinvestment at present in text, music and image generation that requires a legal incentive. I also reject the argument that because something is valuable it must have copyright protection. If copyright was meant as a right in all potentially commercially valuable things, the right would have been given to publishers, not authors. Then, self-evidently machines do not need an incentive to run their code. Code is protected if written by humans, but to protect all outputs not causally related to this code (in the way I explain here), is fraught with significant risks. Those are only a few of the reasons that make me hesitate to celebrate this replacement of human authorship.

Machines can produce output and outgun humans at many tasks that require human intelligence when performed by humans. Perhaps one could even say that machines have their own form of intelligence, but humans are different. Copyright requires creativity (to generate originality—at least in many key jurisdictions), and only humans can produce human creativity. To extend copyright to artificial creativity is a big step, and at this juncture I see no compelling reason to take it.  To say that machines are creative because they can emulate human creative outputs strikes me as “unadulterated anthropomorphism”.

Two additional points. First, I believe that most and perhaps all jurisdictions that provide for protection of “computer-generated works” in their copyright statute made the change before AI technology emerged in this space. Hence, it is not a given that AI-generated works not causally reacted to a human should be protected. I guarantee you this, in any event: if the machine produces infringing or defamatory content those who would be quick to claim copyright if the content had commercial value will be equally as quick to distance themselves from the machine.  Second, the juxtaposition in the summary of the Canadian and US copyright registration systems is risky. There is a substantive examination at the US Copyright Office and the Office determined (rightly in my view) that human authorship was required. There is no such substantive examination in Canada. Additionally, the statute requires that the application mention “the name of the author and, if the author is dead, the date of the author’s death, if known.” (Copyright Act, R.S.C. 1985, c. C-42, s. 55(2)(e). Moreover, the presumption of validity of the certificate in Canada is weaker than, say, the simple presumption that an author is the first owner of copyright (see Andrews v McHale, 2016 FC 624).  Then of course I would love to see the machine exercise its moral rights.


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One comment

  1. Professor Gervais, many thanks for your reply. I did not intend to imply that protection of AI-generated works is likely. Indeed, I suspect changes to the law will come slowly, if at all, and that the economic and social changes from generative AI may well bypass any need for artificial monopolies and copyrights.

    But, I am very glad my blog has been a stepping off point for your summary of the arguments (and for the further response from Damian Flisak:

    I am discussing the economics of AI with Professor Avi Goldfarb and others on Thursday ( I hope we get to cover the pros and cons of IP protection for AI-generated works and inventions from an economic perspective.

    I have been looking for examples of provisions intended to protect computer generated works, calling for examples via LinkedIn: I listed those in my round-up (Hong Kong, India, Ireland, South Africa and the UK). Interestingly, as of 1 January 2023, Ukraine now provides for sui generis protection of computer generated works.

    What is notable is how few countries provide for protection. Moreover, as I have explained in my book ( protection of computer generated works in the UK may have been rendered ineffective by later EU harmonization of originality as requiring the author’s “own intellectual creation”. Barry Scannell has raised similar doubts about the equivalent Irish law.

    Protection of computer generated works was included in a draft of the EU’s first Software Directive (1991), but this was removed as premature and was not added back in the 2000 version. Meanwhile, WIPO has been hosting discussions of copyright and AI since 2019 without, as far as I am aware, making any recommendations.

    Last year, the UK government consulted on whether to change the UK provision for copyright in computer generated works (CGWs). It decided to leave it unchanged, saying: “There is no evidence at present that protection for CGWs is harmful, and the use of AI is still in its early stages. As such, a proper evaluation of the options is not possible, and any changes could have unintended consequences. We will keep the law under review and could amend, replace or remove protection in future if the evidence supports it.”

    Meanwhile, there has been no UK economic study into the impact of AI on creativity (as far as I can determine) since Nesta’s report in 2015:

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