Is Copyright an Old Law for a Brave New World?

The frightening fact that an AI can now write a book or sing a song doesn’t so much challenge the legal status quo in the entertainment world as zap it to bits with a laser gun.

Until now copyright law has served the media industry well. In publishing it establishes the exclusive right for publishers to sell a particular book or magazine, either as the rights owner of the content or the licensee, and in the music and film industries it does the same thing to protect new music and movie releases. The entire business model is based on the principal that copying is not allowed, so a return can be made on the investment.

Copyright law works just fine to prevent outright counterfeits and acts of human plagiary, as that is what it was designed to do. Aim it at pirate streaming sites for example and it functions as intended. But it’s all out of ideas when it comes to computer generated works which, while technically original, rely on the digital ransacking of source material. It lacks provision to protect rights owners in this situation.

This then begs the question of whether rights owners actually have any power whatsoever to prevent original AI generated material being released.

Copyright only really does what it says on the tin. It’s the right to make copies of original works, be they books, songs, films or visual art works. A publisher needs to either own the copyright in a text in order to make copies, or it needs a licence from the author. Likewise, a record label either owns the songs it releases, or licenses the rights. Copyright is easy to comprehend at this level, because the copies being made are literally just that – actual facsimiles of the original works.

However, things get very complicated very quickly when only a part of the work is copied. In the UK at least the law falls back on one of its favorite definitions to handle this, and states that copyright is infringed if a copy is made of the whole work or any “substantial” part of it. This elusive and infuriating term essentially leaves the question of copyright infringement open to almost limitless interpretation. Courts have grappled with this over the years in all kinds of cases, and the only really meaningful limitation they have come up with is that “substantial” is a qualitative rather than quantitative determination. When it comes to a literary work this has meant that a small section of a novel, even as little as a few sentences can be a substantial part, if it can be show to be particularly meaningful. In the music industry only a relatively small part of a song can attract copyright protection, such as a baseline, chord sequence or tune. It is accepted that sampling an earlier work, even just a small part of it, requires a copyright licence.

What is very clear though is that copyright does not protect the ideas vested in a text, or something like an authorship or musical style. In this sense copyright is not about copying, rather it is about making a copy, which is an important distinction. There has to be an actual part of the original work in the copy for there to be infringement.

So, with an AI generated book or song the question of infringement would therefore come down to whether or not it had actually made a copy of the whole or a substantial part of an original work. There are two basic ways it might do this that existing copyright law anticipates. The first, if provable, would be a silver bullet, and it is the fact that if an electronic copy of a work is recorded anywhere then there is infringement. If an AI had to make and store a digital copy of an original work in order to rely on it to generate original text or music then there’s infringement right there. Whether this actually happens, or more importantly can be proved, is much harder to answer.

The second way an AI might use a substantial part of an original work is if actual parts of an earlier book or song were actually reproduced wholesale, and that would depend on just how the AI was programmed to behave. We have seen AIs do something very similar with illustrations, where entire parts of earlier images have been copied and placed in a collage with others.

However, leaving aside these conventional infringement situations, the much larger question is whether any AI generated work should be considered copyright infringing due to the automated extent to which it must rely on earlier works.

Artificial intelligence is not capable of genuine originality in the human sense, and relies instead on processing existing works to generate something similar. An AI could potentially produce an original book in the distinctive style of a known author, but it would do so by slavishly relying on all kinds of data vested in their existing works. Textual patterns, sentence construction, common words and expressions, and even narrative structures are recognised by the AI and then reproduced. Likewise, an AI can produce an original song based on all kinds of identified parameters of earlier songs, including something like the sound of the singer’s actual voice.

So the actual legal question boils down to whether or not an AI generated book comprising original text, but which was constructed from data derived from an earlier book, contains a “substantial” part of that earlier book. Or, whether an AI generated song constructed from data derived from earlier songs contains a “substantial” part of them. On the basis of the current interpretation of copyright law the answer would be no, simply because the exact sequence of words or notes was different. However, the emergence of the first AI creators have made that seem like an outdated approach. If the AI generated work could never exist without the original source works, perhaps copyright law should be contorted so the answer becomes yes. It comes down to appreciating that there is value in the data intrinsically embedded in earlier works, which prior to AI was never even considered.

For now we’ll have to wait until a major AI copyright case reaches trial, and a judge seizes the opportunity to clarify the situation. Until then the media industry has to protect itself as best it can, by recognizing AI learning as a new stand-alone use of a copyright work, so it can be defined and apportioned in licensing contracts. It would also take a very brave company to be the first to actually publish a provocative AI generated book or song which might illicit an angry legal response. It will happen, and probably very soon, and my advice to any company would be to let someone else stick their neck out first!

Jerry Bridge-Butler is a UK Chartered Patent Attorney and a European Patent Attorney, as well as a UK Chartered Trade Mark Attorney.

A graduate of the University of Wales, Jerry joined G. F. Redfern & Co in 2000, becoming a partner there in 2006. He then joined Baron Warren Redfern as a partner in 2008. His patent work is mainly in the field of mechanical engineering and electronics, and his trade mark work includes prosecuting UK and international applications, and protecting the trade mark portfolios of a number of well known brands. He is responsible for dealing with new client enquiries at Baron Warren Redfern, and has in-depth experience in IP protection strategies for start-up companies in particular. Jerry is a member of both CIPA and CITMA, and is Chairman of the CIPA Media and PR Committee. He has assisted the UK IPO with developing various business outreach tools, such as IP Equip and IP Tutor, and manages CIPA’s IP diligence and pro bono work for the Earthshot Prize.