Artificial Intelligence (AI) has been ‘the buzzword’ since the release of ChatGPT in late 2022. From then, there have been shockwaves sent throughout the academic and business world. Almost anytime there is a conversation about the future of the world, AI always finds a way into the conversation – whether it is for good or bad reasons. From personal experience, AI usage is rampant and it is frequently used as a crutch to lean on, as opposed to a tool to use when looking to streamline tedious tasks. With many now relying on AI to assist them with the day-to-day, mundane tasks, the lines will begin to blur to a point where there may no longer be an ability to differentiate between what is written by humans or AI.
Copyright law in Australia is primarily located within the Copyright Act 1988 (Cth) (‘Copyright Act’) which is a Federal piece of legislation that also incorporates elements of international intellectual property law. Copyright protections, under the s 33(2) of Copyright Act, last for 70 years after the calendar year in which the author of the work died. In theory, this could involve finding a collection of poems created by your grandfather and publishing it in a book. Without ownership of the copyright being passed down to the grandson, in a will or otherwise, then he would be in breach of copyright law as it would be protected for 70 years. In this scenario, it the copyright would likely belong with the grandmother who could sue the grandson for infringing on her intellectual property.
Purpose of Copyright Protections in Australia
There are two main purposes for copyright law, namely: moral and economic.
Moral purpose:
The main objective of moral purpose is to attribute credit to the creator and protect their work from being misrepresented as belonging to someone else. Naturally, we all want to be credited for our own hard work and not have it stolen by someone who did not do the work themselves.
Economic Purpose:
This purpose is less about integrity and more about financial benefits. Naturally, if someone sells a very successful book, it comes with great money and/or fame attached to it. This purpose looks at protecting the ability to prevent unauthorised profits from the distribution of copyright material that should only be received by the owner of the intellectual property.
How Does AI Impact Copyright Law?
Under s 32(1)(a) of the Copyright Act, copyright can only be vested in a “qualified person”. Per s 32(4), a ‘qualified person’ means an “Australian citizen or a person resident in Australia”. Thus, anyone looking for protections for works under the Copyright Act must be a living person, residing in Australia or an Australian citizen.
Here we have the current conflict with AI and copyright law; where the two cannot intersect as copyright works, by definition, need to be made by a natural person.
Ownership of Copyright in Australia
The general rule is that the author of a literary, dramatic, musical or artistic work is the owner of the copyright in the work, per s35(2) of the Copyright Act. Copyright material under these categories can include:
- Unpublished works;
- Published work (can include editions of books);
- Literary work;
- Compilations (can include sound recordings, cinematograph films and TV);
- Computer programs;
- Dramatic work;
- Musical work;
- Artistic work; and
- Works of artistic craftsmanship.
Under this umbrella, there are many types of creative works that necessitate protections under the Copyright Act.
Amongst these types of original works, we can see that AI is already coming in as a disrupter that could interfere with all of the categories included above. Although AI might not be able to physically paint or sculpt, it can generate endless ideas for artists to rely upon and eventually use for their work.
It is not all doom and gloom with AI and creativity, as it can be a great tool of inspiration. For example, you ask it to brainstorm ideas for a book or do some research on an artist to understand how they developed their style or approached their work. Of course, these elements would not constitute the inability to protect your copyright. This is an example of how AI can be utilised in a way that can enhance creators who may be facing mental blanks or fatigue associated with creativity. However, it can be a slippery slope of “I’ll just get it to draft a painting for me” or “I’ll ask it to write a verse for my song” or “I’ll copy some code from this for my app”. Although it might not be instant, there is a danger in relying on AI when creating intellectual property as it inherently restricts the ability to seek protections under the Copyright Act if someone were to infringe upon the works copyright.
The future of Copyright law and AI
Inevitably, the temptations of forced creativity (as sometimes experienced with writers, artists and musicians) could lead to an individual losing protections for their work under the Copyright Act for an overreliance on AI. As AI technology improves and the desire for human creativity rises, this temptation will only increase.
Legislative reform to any intellectual property laws should place a further emphasis on protecting the concept of original work and the current understanding of copyright material under the Copyright Act, as doing so would encourage creativity in a world where it is slowly starting to be replaced with artificial creativity. Failure to incorporate these protections in future AI legislation, or reform, would be detrimental to the concept of creativity and leave millions of humans without viable careers or opportunities to provide for their families.
For the protection of originality and creativity, it is essential that we do not substitute our own creativity with AI, as we risk losing the concept of an original work and the economic and moral benefits that come with it.
