Creators of original works enjoy the protection of traditional copyright laws to maintain their economic and moral rights in literary, dramatic, musical and artistic works as well as software, databases, media recordings and other things.

However, not all creators are created equal, you cannot hold intellectual property rights if you are a macaque or a machine. You might display some form of intelligence as a puzzle solving selfie taking monkey. You might be an AI that fools people in the Turing test but not being human is the defining limit. Back in 2017 after a two year battle a photographer finally won his legal case against PETA over the copyright in a photograph taken by Naruto, a crested Macaque living in Indonesia. The animal rights group sued the photographer “on behalf” of the monkey but the US Judges found that since he was not a human he was ineligible to hold copyright. A perhaps inevitable result where you can say “…tsk. Only in America”.

Turning to AI how does our regime compare with the monkey and America? Section 9 (3) of the Copyright Design and Patents Act 1988 has since the beginning specified that the author of computer generated work shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. That has a parallel with the photographer lending his switched on and SD card loaded camera to a primate. In respect of computer generated work, who would that person be? It could be the original programmer, it could be those people responsible for training the machine learning of the AI. The more sophisticated AI gets the more hands off and minimal the human input or intervention is. At some point do you reach a level where the nexus between human and AI is so unclear that it becomes a fiction to maintain that anyone is the person making the arrangements under section 9(3)? Will the judiciary find a pragmatic ways to ensure that such AI created works are found to have authors in a way that protects the commercial and intellectual effort necessary for the work to have been created in the first place? Will the legislature have to wrestle with such matters and introduce any radical updates to copyright laws? Will AI be awarded IP rights and, if so, will it be before monkeys?

I confess that I do not have the answers but somewhere there may be an AI refining its own algorithms that does.