Modern computer software, at the push of a button, is able to generate novel literary works, musical compositions and works of art. But as the development of artificial intelligence (AI) continues, does our copyright law protect the creation of such works? For example, would a robotic William Shakespeare with AI be an "author" under New Zealand's Copyright Act 1994 (Copyright Act), and would its literary works be protected by copyright?
The Australian Full Federal Court in Telstra upheld the Federal Court's earlier decision, which was examined by Richard Watts and Sonya Hill in Australia: No Copyright in Telephone Directories. What Does this Mean For New Zealand?. While Telstra dealt with copyright in literary works in the form of the Yellow Pages and White Pages telephone directories (Directories), the case has implications for the creation of works by computer software and AI in general.
What did Telstra decide?
An "author" of a copyright work is a fundamental pre-requisite for copyright to subsist. The Court in Telstra held that all the authors of the Directories, of which there were potentially hundreds, must be identified (even if not named). The Court also held that the creative process of selecting, ordering and arranging the data for the Directories must be of human authorship, rather than the substantially automated process undertaken by computer software.
Authorship was also considered by the Court to be a requisite to establishing originality in a work. The Court in Telstra considered that, while the focus is not on novelty or creativity, the intellectual effort of the author must result in the form of the work that is published. In Telstra, persons had collected the data, but the creative process of selecting, arranging and formatting the data was done by the computer software. The system of creating the Directories, including the use of computer software and the work of employees, was also said to be governed by rules which limited originality.
Implications of Telstra, and the New Zealand position
Telstra has not been applied in New Zealand, but it would sit uneasily alongside New Zealand's Copyright Act. The Act defines "author" as including a person who makes the "necessary arrangements" for the creation of a literary, dramatic, musical or artistic work that is computer-generated, and provides that an author of computer-generated works can be a natural person or a company. The United Kingdom legislation also defines an "author" for computer-generated works as the person who makes the "necessary arrangements" for the creation of the work, which is equivalent to the Copyright Act. However, the United Kingdom legislation was distinguished from the Australian legislation in Telstra. In doing so, the Australian courts have also distinguished New Zealand's Copyright Act from the Australian legislation.
The "necessary arrangements", and therefore authorship, in this sense could be by the persons who define and implement the tasks, and/or those who utilise the software to create the work. In other cases, where writing the software is itself integral to creating the work, the persons writing the software could be those who made the "necessary arrangements" for creation of the resulting work. "Necessary arrangements" is unlikely to apply to the act of merely pushing a button to activate the software where another person has already created the software or inputted the data.
Where a number of people undertake the necessary arrangements for the creation of the work, the same difficulty as that in Telstra arises - all those persons must be identified for authorship to be attributed. However, as the Copyright Act provides that a company may be the author, each employee of the company that contributed to the necessary arrangements may not need to be identified individually.
The issue of non-human authorship also raises other questions outside the scope of this article, including whether copyright can subsist in an artwork created by an animal, such as a chimpanzee.
In Telstra, the use of rules that limit originality may suggest that algorithms used to create works also limit originality. Telstra also highlights the difficulty in attributing originality to a work produced by software where only the indirect intellectual efforts of persons are involved, for example, where software with problem-solving and learning abilities produces a work that was not foreseen by the writer of the software.
New Zealand has applied a generally low threshold for whether a work is original, which can be satisfied where there has been sufficient skill and labour, or "sweat of the brow", in creating the work. While the final form of a work produced by software or AI may be unforeseen at the time a person is writing the software, the intellectual effort of selecting specific algorithms to direct the production of the work may amount to sufficient skill and labour. This can be compared to the creation of an artwork by splattering paint on a canvas, which produces an unpredictable result.
This area of copyright law, and the relevance of Telstra and its applicability in New Zealand, remains largely untested. However, the Copyright Act provides more certainty of copyright protection than in Australia for businesses which create or utilise software or AI for the production of works.
Under the Copyright Act, copyright is capable of subsisting in literary, musical, dramatic or artistic works produced by software or AI, if the works are of sufficient originality. The persons who created or utilised the software or AI to create the works must also be identifiable. Where those persons are employees directed to produce or utilise the software or AI to create the works, the author will likely be the company that employs them.
It would therefore seem that in New Zealand, a robotic William Shakespeare would not itself be an author, but its works could still be protected by copyright.