How is AI transforming the digital art market, and what are the implications for

copyright protection?

Abstract
The focus of this dissertation is on the effect that AI has on the digital art market
and the resulting ramifications pertaining to copyright protection. In recent
years, AI tools and algorithms have set in motion revolutionary changes affecting
numerous creative sectors; traditional notions of authorship and originality are
being challenged and re-evaluated, hence demanding a comprehensive review of
the current legal framework. By using a combination of case law analysis and
assessment of secondary sources, this study explores how AI is transforming
creation, distribution and copyright protection.
It deals with such critical issues as the determination of authorship in AI-
generated works, the developing notion of originality within the context of
machine learning, and whether present copyright laws are adequate to deal with
these technological developments. The dissertation also examines AI's role in the
creative process, highlighting how it can serve as a powerful tool for artists to
enhance their work and gain inspiration.

Table of Contents
Abstract.............................................................................................................................1
Chapter 1...........................................................................................................................1
1.1 Introduction.................................................................................................................1
1.11 Background............................................................................................................1
1.12 Keywords and Context...........................................................................................1
1.13 Research Significance.............................................................................................2
1.14 Objectives and Aims...............................................................................................2
1.15 Structure of The Dissertation.................................................................................3
1.2 Literature Review.........................................................................................................3
1.21 Structure of Literature review................................................................................3
1.22 AI-Generated Works and the Challenges of Copyright.....................................4
1.23 Arguments for Extending Copyright Protection to AI-Generated Works.........5
1.24 Arguments Against Extending Copyright Protection to AI-Generated Works. 6
1.25 Comparative Perspectives on AI and Copyright................................................6
1.26 The Role of Human Involvement in AI-Generated Works................................7
1.27 Gaps in the Literature........................................................................................8
1.3 Methodology...........................................................................................................8
 1.31 Outline...............................................................................................................8
1.32 Research Philosophy..........................................................................................8
1.33 Research Approach............................................................................................9
1.34 Research Design...............................................................................................10
1.35 Research Limitations........................................................................................11
Chapter 2.........................................................................................................................12
2.1 AI in Creative Processes.........................................................................................12
2.11 How AI Models Operate...................................................................................12
2.12 Revolutionizing the Creative Process: How AI Benefits Artists.........................14
Chapter 3.........................................................................................................................15
3.1 Copyright Law: Foundation and Legal Frameworks...............................................15
3.11 Copyright Law: Overview and The Nature of Authorship.................................15
3.2 The Eligibility of AI for Copyright Protection: Authorship Laws in Different
Regions....................................................................................................................18
3.3 Further Cases and Judicial Precedent.................................................................24
3.4 AI and The Issue of Originality............................................................................25
Chapter 4.........................................................................................................................31
4.1 Policy recommendations........................................................................................31
2.41 Designating AI as Inventors..............................................................................31
2.42 Retaining the need for human authorship.......................................................32
2.43 Implementation of a new sui generis right for AI generated output................33
Chapter 5.........................................................................................................................35
5.1 Summary of Findings..............................................................................................35
5.2 Interpretation of Results........................................................................................35
5.3 Addressing the Research Questions.......................................................................35
5.4 Recommendations for Future Research.................................................................36
5.5 Practical Recommendations...................................................................................36
5.6 Concluding Remarks...............................................................................................36
Bibliography Table:..........................................................................................................37
1

Chapter 1

1.1 Introduction
1.11 Background
The advent and proliferation of artificial intelligence (AI) has resulted in a new
era of innovation, drastically transforming various aspects of human life,
including creative sectors such as the digital art market. This technological
evolution is constantly redefining and altering the boundaries of authorship,
creativity and ownership, presenting both unprecedented opportunities as well
as significant challenges. As AI technologies grow increasingly sophisticated, their
integration into the digital art landscape raises critical questions about the
nature of art itself and the tools that govern its creation and distribution.
Understanding the impact of AI on the digital art market necessitates a thorough
exploration of the intersection between technology, creativity, and legal
frameworks. This dissertation aims to examine the transformative impact of AI
on the digital art market and to analyze the implications for copyright protection.
1.12 Keywords and Context
To address the research question in a comprehensive manner, key terms and
concepts surrounding the issue at hand must be established.
efficient manner.1 These subsets of AI will be discussed in further length within
the literature review.

To produce AI-generated art, artists leverage AI as a creative instrument,

collaborating with algorithms to establish rules that enable machines to analyze
thousands of images, thus understanding a specific creation process, style, or
aesthetic, and producing a result based on such themes. The algorithms then
create unique forms, shapes, figures, and patterns to generate new artworks.

The following list is a summarization of the key terms and concepts prevalent
within the scope of the research question.

Keywords:

1. Artificial Intelligence (AI): Technology that simulates human intelligence

in machines, enabling them to perform tasks like visual perception,
decision-making, and language translation.

1
Smee S, ‘Perspective | AI Is No Threat to Traditional Artists. But It Is Thrilling.’ Washington Post (28
February 2023) <https://www.washingtonpost.com/arts-entertainment/2023/02/15/ai-in-art/> accessed 31
July 2024
2

1.13 Research Significance

The intersection of AI and digital art is an emerging field which has significant
implications for artists, collectors, legal professionals, and policymakers. AI tools
are not only enhancing human creativity but also generating entirely
autonomous artworks, having a widespread transformative effect on the digital
art l1andscape.2 The process of AI art generation is carried out by numerous
algorithms which utilize and compile information from existing art styles and
imagery across the internet., the advent of AI tools has raised important
concerns about authorship, originality, and the application of copyright law
within the digital art sphere.3 This ongoing debate surrounding the legal status of
AI-generated art has significant ramifications for artists, collectors, and the
broader art community, shaping the development of fair AI models 4. With the
line between human and machine-generated art becoming increasingly blurred,
it is crucial to engage in a thoughtful and nuanced discussion about the changing
nature of art and the role of AI in its future. By examining the legal challenges
and opportunities presented by AI-generated art, we can better understand the
profound impact these technological advancements will have on the
development of copyright law, as well as the art world and society as a whole.

1.14 Objectives and Aims

Main Research Question:
How is AI transforming the digital art market, and what are the implications for
copyright protection?

The primary objectives of this dissertation are:

1. To analyze how AI technologies are used in the creation, enhancement,

and distribution of digital art.
2. To investigate how the integration of AI is changing the dynamics of the
digital art market, and what paradigm shifts are resulting from its
expansion.
3. To explore the implications of AI-generated art for current copyright laws
and identify potential legal and ethical challenges.

2
Then C and others, ‘The Impact of Artificial Intelligence on Art - A Systematic Literature Review’
(2023) 2023 IEEE 9th Information Technology International Seminar (ITIS) (IEEE)
https://ieeexplore.ieee.org/document/10420208/ accessed 31 July 2024.
3
Ibid.
4
Yurii Burlyo, ‘AI-generated works and copyright protection’ (2022) 3 Entrepreneurship, Economy
and Law 7.
3

4. To propose recommendations for policymakers and stakeholders to

address the copyright issues arising from AI-generated art.

1.15 Structure of The Dissertation

Chapter 1 The first chapter outlines and introduces the research

Introduction question and its significance as well as conducting a
literature review, which sprovide a comprehensive
foundation for understanding how AI is transforming
the digital art market and the implications for
copyright protection. It also includes the methodology
of the research carried out.
Chapter 2 Explaining the digital art sector, how it has been
AI in Creative affected by AI, and its impact on copyright law.
Processes
Chapter 3 Examining the essence of authorship and ownership -
Authorship and should the approaches to establishing these be
Ownership of AI Art reconsidered in light of new technologies?
Chapter 4 Recommendations for policymakers and stakeholders
Policy to address copyright issues in AI-generated art.
Recommendations
Chapter 5 This is the closing phase of the dissertation, where the
Conclusion and final remarks, reflection of the research experience,
Discussion limitations of the research and a summary of the
findings is placed. Consideration of further research is
also included.

1.2 Literature Review

1.21 Structure of Literature review

The literature review is structured to provide a focused exploration of the key

issues surrounding copyright protection for AI-generated works. The topics
introduced in the literature review through secondary sources are further
elucidated, analyzed and discussed chapter 2 onwards. It begins with an
Introduction, setting the stage for the discussion by highlighting the central
debate. The review then examines AI-Generated Works and the Challenges of
Copyright, analyzing the specific legal hurdles presented by AI. Following this,
the review presents Arguments for and Against Extending Copyright
Protection to AI-Generated Works, offering a balanced view of the debate.
Comparative Perspectives on AI and Copyright provides insights into how
different jurisdictions approach the issue, while The Role of Human
4

Involvement in AI-Generated Works considers the significance of human input

in the creation process. Finally, Gaps in the Literature identifies areas requiring
further research.The table blow summarizes this structure:

Chapter 1.22 An analysis of how AI technologies are being used

AI-Generated Works and in the creation of digital art and their impact on
the Challenges of Copyright artistic practices.
Section 1.23 Examines the arguments in favor of granting copyright
Arguments for Extending protection to AI-generated works, including economic
Copyright Protection to AI- incentives and the need to adapt the law to new forms
Generated Works of creativity.
Section 1.24 Reviews the arguments against extending copyright
Arguments Against protection, focusing on the preservation of the human-
Extending Copyright centric principles of copyright law.
Protection to AI-Generated
Works
Section 1.25 Analyzes how different jurisdictions, such as the U.S.
Comparative Perspectives and the EU, approach the issue of AI-generated works
on AI and Copyright and copyright protection.
Section 1.26 Discusses the extent to which human input in the AI
The Role of Human creation process could justify extending copyright
Involvement in AI- protection to AI-generated works.
Generated Works
Section 1.27 Identifies the areas where further research is needed,
Gaps in the Literature particularly in the economic and ethical implications of
granting copyright protection to AI works.

1.22 AI-Generated Works and the Challenges of Copyright

AI-generated works present unique challenges to the traditional copyright

framework, primarily because they challenge the notions of originality, creativity,
and authorship.

1.221 Originality and Creativity

The requirement of originality is a cornerstone of copyright law, yet AI-generated

works often rely on pre-existing datasets and algorithms to create new content.
Scholars such as Joshua Yuvaraj and Daniel J. Gervais argue that AI outputs
should not be considered original in the traditional sense because they are not the
result of human intellectual effort but rather the product of machine learning
processes that mimic creativity.5 Gervais further suggests that the concept of

5
Joshua Yuvaraj, ‘Rethinking Originality in Copyright: The Impact of AI-Generated Works’ (2020)
41 European Intellectual Property Review 505.
5

creativity in copyright law needs to be re-evaluated in light of AI’s capabilities,

proposing a functional approach to originality that takes into account the role of
the programmer and the selection of datasets.

1.222 The Role of Algorithms and Data Sets

The use of algorithms and datasets in AI-generated works raises questions about
the ownership of these underlying elements. For example, Andres Guadamuz
explores the implications of algorithmic creativity and the potential for copyright
infringement when AI systems are trained on copyrighted works without
permission. This issue is particularly contentious as it challenges the boundaries
of fair use and the rights of original content creators, who may find their work
used without attribution or compensation.6

1.23 Arguments for Extending Copyright Protection to AI-

Generated Works

Proponents of extending copyright protection to AI-generated works argue that

such protection is necessary to incentivize investment in AI technology and to
ensure the continued innovation in the creative industries.

1.231 Economic Incentives

Lionel Bently and Brad Sherman highlight the economic rationale behind
copyright protection, arguing that by granting exclusive rights to AI-generated
works, creators and companies are more likely to invest in AI technologies that
contribute to the cultural and economic landscape.7 The economic argument is
also supported by Michael P. Leahy, who contends that without copyright
protection, there would be less financial motivation for businesses to develop AI
capable of creating valuable content.8

1.232 Adapting the Law to Technological Advances

Another argument in favor of extending copyright protection is the need for the
law to evolve in response to technological advances. Annemarie Bridy asserts that
copyright law has historically adapted to new forms of media and creativity, and
AI should be no exception. Bridy suggests that by recognizing AI-generated
works under copyright law, the legal system would reflect contemporary realities
and ensure that the law remains relevant in a rapidly changing technological
environment.9

6
Andres Guadamuz, ‘Artificial Intelligence and Copyright’ (2017) 18 WIPO Magazine 3.
7
Lionel Bently and Brad Sherman, Intellectual Property Law (5th edn, OUP 2018).
8
Ibid.
9
Annemarie Bridy, ‘Coding Creativity: Copyright and the Artificially Intelligent Author’ (2012) 5
Stanford Technology Law Review 1.
6

1.24 Arguments Against Extending Copyright Protection

to AI-Generated Works

Critics of extending copyright protection to AI-generated works argue that doing

so would undermine the fundamental principles of copyright law, which are based
on human creativity and expression.

1.241 Preservation of Human-Centric Copyright Principles

William Fisher argues that copyright law is fundamentally rooted in the protection
of human intellectual effort and extending it to AI-generated works would dilute
the essence of what copyright is meant to protect. Fisher’s perspective is echoed
by Jane C. Ginsburg, who asserts that copyright is intrinsically linked to human
authorship and moral rights which AI cannot fulfill.10

1.242 The Risk of Over-Protection

Another concern is that extending copyright to AI works could lead to over-

protection, stifling creativity and innovation. Timothy Endicott warns that
granting exclusive rights to AI-generated works could create monopolies over
certain forms of creative output, potentially restricting access to and use of
cultural resources. He also raises concerns about the ethical implications of
assigning ownership to non-human entities, arguing that it could lead to the
commodification of creativity in ways that are detrimental to society. 11

1.25 Comparative Perspectives on AI and Copyright

Different jurisdictions have approached the issue of AI-generated works and

copyright protection in varying ways, reflecting broader cultural and legal
differences.

1.251 United States

In the United States, the Copyright Office has maintained that only works created
by human authors are eligible for copyright protection. Sarah Burstein’s analysis
of U.S. copyright law underscores the strict adherence to the requirement of
human authorship, which has led to the rejection of copyright claims for AI-
generated works. However, recent discussions in legal circles suggest that there
may be a gradual shift towards recognizing AI’s role in the creative process,
though this is still a matter of significant debate.12

10
J C Ginsburg, ‘The Concept of Authorship in Comparative Copyright Law’ (2003) 52 DePaul Law
Review 1063, 1066
11
Timothy Endicott, ‘AI and Copyright: Overprotection Risks and Ethical Implications’ (2021) 34
International Journal of Law and Information Technology 77.
12
Sarah Burstein, ‘Are AI-Generated Works Copyrightable? An Analysis of U.S. Copyright Law’
(2019) 27 Journal of the Copyright Society of the USA 1.
7

1.252 European Union

The European Union has shown a more open stance towards the possibility of
extending copyright protection to AI-generated works. Niva Elkin-Koren
discusses the ongoing debates within the EU about how to best integrate AI into
existing intellectual property frameworks. She notes that while the EU is cautious
about fully recognizing AI as an author, there is a growing recognition of the need
to adapt copyright laws to accommodate the contributions of AI in creative
processes.13

1.253 United Kingdom

In the UK, the Copyright, Designs and Patents Act 1988 includes provisions that
could potentially apply to AI-generated works, specifically Section 9(3), which
allows for copyright to be granted to the person who made the necessary
arrangements for the creation of a work if no human author can be identified.
Tanya Aplin examines this provision and its potential implications for AI-
generated works, arguing that it may provide a basis for recognizing copyright in
such works while still adhering to traditional copyright principles.14

1.26 The Role of Human Involvement in AI-Generated

Works

The extent of human involvement in the creation of AI-generated works is a

critical factor in determining whether copyright protection should be extended to
such works.

1.261 Human Input in the Creative Process

Shlomit Yanisky-Ravid and Luis Javier Vasquez argue that if significant human
input is involved in the AI creative process—such as programming the AI,
curating the data sets, or refining the outputs—then copyright protection may be
justified. They propose a model where human creators who contribute to the
creative process can be recognized as authors, thereby maintaining the human-
centric nature of copyright while acknowledging the role of AI.15

1.262 Collaboration Between Humans and AI

The notion of collaboration between humans and AI also raises interesting

questions about joint authorship. Abbe E.L. Brown and Charlotte Waelde explore

13
Niva Elkin-Koren, ‘Copyright in a Digital Ecosystem: A User-Based Perspective’ (2017) 22
Journal of Intellectual Property Law 115.
14
Tanya Aplin, ‘Copyright in AI-Generated Works: A UK Perspective’ (2019) 42 Intellectual
Property Quarterly 25.
15
Shlomit Yanisky-Ravid and Luis Javier Vasquez, ‘In the Age of AI: New Models of Copyright
Authorship’ (2018) 24 Harvard Journal of Law & Technology 231.
8

the legal implications of collaborative works created by humans and AI,

suggesting that joint authorship could be a way to reconcile the contributions of
both human creators and AI systems.This approach could provide a balanced
framework that recognizes the evolving nature of creativity in the digital age. 16

1.27 Gaps in the Literature

Despite the growing body of literature on AI and copyright, several gaps remain.
Firstly, there is limited empirical research on the economic impact of extending
copyright protection to AI-generated works. While scholars like Bently and
Sherman have made theoretical arguments in favor of protection, there is a need
for empirical studies to assess the potential economic benefits and drawbacks.
Secondly, the ethical implications of granting copyright protection to AI works
have not been fully explored. The literature often focuses on legal and economic
arguments, leaving questions about the moral status of AI-generated works and
the potential consequences for human creators largely unexamined.

1.3 Methodology
1.31 Outline

The methodology section explains how the investigation into the intersection
between copyright and AI digital art has been approached in this dissertation.
The study chiefly relies on a comprehensive review of existing legal cases and
scholarly or journalistic literature to analyze key themes and issues. The research
design, instruments, philosophy and data collection methods will be detailed and
the reasoning behind choosing these procedures will also be elucidated. The
type of research conducted In this dissertation is secondary research.

1.32 Research Philosophy

Given the nature of this study, it is aligned to interpretivism as the research
philosophy. Interpretivism is the research philosophy which posits that reality is
a social construction influenced by the unique perceptions of individuals, placing
great importance on subjective experience as an instrument to understand
various phenomena.17 It contrasts positivism in the sense that it doesn't find
objective and quantifiable truth.18 Instead, it looks to understand meanings,
interpretations, and experiences that individuals or groups give to occurrences
or events. It is best suited to inquiries concerned with complex, context-based
issues in which human views and interpretations play an important role. Hence,
using an interpretivist approach enables deep exploration and interpretation of

16
Abbe E.L. Brown and Charlotte Waelde, ‘Authors, Machines, and Joint Works:
Reconceptualizing Copyright Law for the Digital Age’ (2017) 44 UC Davis Law Review 219.
17
Husam Helmi Alharahsheh and Abraham Pius, 'A Review of Key Paradigms: Positivism vs
Interpretivism' (2020) 2 Global Academic Journal of Humanities and Social Sciences 39-43.
18
Ibid.
9

legal principles and scholarly arguments in relation to copyright law and AI digital
art. This would be apt for making out complex legal interpretations and impacts
on society.19
The intersection of AI art and copyright protection is one that holds a myriad of
legal and ethical problems that are driven by technology and driven socially. In
this respect, complex issues like these would be best evaluated using
interpretivism20, since it allows for in-depth coverage of different stakeholders'
interpretations of these issues and their respective responses.

Copyright law and its application to AI art are fledgling areas of research that are
continuously evolving and progressing. Interpretivism aids in clarifying how legal
principles are being interpreted and adapted in reaction to new technological
realities. Due to the implications of the research question as well as the overall
importance and divisiveness of opinions on the dissertation topic, Different legal
scholars and practitioners may have varied interpretations of how copyright law
applies to AI art. Since the dissertation focuses on secondary research,
interpretivism supports a detailed analysis of existing scholarly articles, legal
texts, and case studies.21 This approach allows for the exploration of the diverse
perspectives scholars and legal practitioners hold on the topic.

1.33 Research Approach

The research approach adopted is qualitative. Such methods are more

appropriate in analyzing legal cases and literature, facilitating nuanced
interpretations of legal doctrines, as well as court decisions and scholarly
debates, relevant to AI-generated art and copyright.22 Qualitative reasoning
deals with non-numeric data, hence it is suitable for this dissertation as the
primary subjects of analysis are court cases and expert opinions. Qualitative
methods are also well-suited for comparative analysis as they expediate the
exploration of contextual factors and nuanced differences between legal
systems.23

In association with the research paradigm, the research conducted in this

dissertation takes an abductive approach. The abductive methodology involves
starting with observations or data that do not fit neatly into existing theories or
have direct correspondence to current explanations. The researcher then seeks
19
Ibid.
20
Gemma Ryan, 'Introduction to Positivism, Interpretivism and Critical Theory' (2018) 25 Nurse
Researcher 41-49.
21
Ibid.
22
Peter Hastie and Peter Hay, 'Qualitative Approaches' in Richard Tinning, David Kirk and Patricia
G. M. McDonald (eds), Research Methods in Physical Education and Youth Sport (Routledge 2012)
79-94.
23
Ibid.
10

the most plausible explanations or theories that can account for these
observations. In the context of AI art, copyright protection presents novel
challenges and questions that traditional legal theories do not fully address and
cover. For example, the legal status of AI-generated art, the implications of AI's
role in creative processes, and the adequacy of prevailing copyright frameworks
in managing these issues can be multifaceted and not very clear. 24

Present case law, and scholarly articles often offer fragmented or insufficient
outlooks on how copyright law should be applied to AI-generated art. An
abductive approach helps in making sense of these discrepancies and generating
explanations that account for them. This is evident in the literature review, when
examining global legal systems in correlation to legislation regarding authorship
and originality.25 By analyzing how numerous jurisdictions handle the issue of ai
art and copyright protection, emerging patterns were discerned relating to why
legal frameworks around the world have differing stances on what constitutes as
originality. Similarly, by identifying and quoting specific legal cases, the rulings
resulting from these cases were essential in recognizing what gaps and
limitations exist in the existing legal understanding of authorship, especially in
answering whether machines could classify as authors.26 Moreover, iterative
refinement is a critical component of an abductive approach. In this dissertation,
conclusions drawn of how case law influences copyright treatment of AI art has
been refined as new cases or additional data are considered. This style once
again reflects an abductive methodology.

1.34 Research Design

1.341 Data Collection Techniques

As mentioned above, the chosen research design for this dissertation is a

literature review that aims to synthesize and critically evaluate the historical
legal precedent revolving around the topic. This helps in gleaning wider
conclusions about the issue itself by assessing a variety of judicial viewpoints
that both outright reject the possibility of copyright protection for AI and also
acknowledge the function of AI as a supplementary tool that aids in expressing
individual creative expression rather then stifling it. The major sources of data
included are: Legal Cases and Scholarly Literature. Analysis of legal precedents
and judicial interpretations provides insights into how courts have addressed
copyright issues arising from AI-generated art in the past, and Reviewing
academic literature ensures a thorough understanding of practical implications
24
B Hollstein, 'Qualitative Approaches' in J Scott and P J Carrington (eds), The SAGE Handbook of
Social Network Analysis (SAGE 2011) 404-16.
25
G Paul, 'Approaches to Abductive Reasoning: An Overview' (1993) 7(2) Artificial Intelligence
Review 109-52.
26
S Osman, S Mohammad, M S Abu, M Mokhtar, J Ahmad, N Ismail, and H Jambari, 'Inductive,
Deductive and Abductive Approaches in Generating New Ideas: A Modified Grounded Theory
Study' (2018) 24(4) Advanced Science Letters 2378-81.
11

relevant to the research topic, especially those affecting the artists and AI
developers themselves.

The research applies a purposive sampling strategy in the selection of legal cases
and literature material that best suits the focus of the dissertation on AI digital
art and copyright law. The criteria for selection centers on: relevance of AI-
created art to the issue of copyright, impact of AI on copyright issues, impact on
legal doctrines. This strategy entails deliberately choosing only the most relevant
sources that will lead to an effective analysis answering the research question
and achieving its objectives, contributing to a more focused analysis.

1.342 Data Analysis Techniques

This dissertation mainly makes use of Thematic Analyses and Comparative
Analyses. A Thematic analysis helps to synthesize and consolidate different
views, culminating in the identification of overarching trends and challenges for
copyright law and AI digital art. By separating and discovering the larger themes
that permeate the topic from a moral or philosophical angle, more fitting
amendments to the legal proceedings of different jurisdictions can be suggested.
For example, the research indicated that authorship rights may not be granted
based simply on the judicial requirements that need to be fulfilled for AI to be
recognized as an author. Rather, it also may be vital to take into account that
even if certain AI systems technically do meet the most basic requirements for
authorship, giving such technologies the 27privileges and protection linked to
human authors may undermine the spirit behind copyright law itself, which is
built around preserving human creativity.
1.35 Research Limitations
The legal framework on AI art is changing very fast. Laws and regulations on the
subject matter differ so greatly from one jurisdiction to another and are very
often updated to keep up with the development of technology. It is in this sense
that the work is limited by its time scope, reflecting the legal status and scholarly
discourses at the time of its writing.28 Future developments can thus date some
findings, which might either become obsolete or need reinterpretation. The
methodology of this research, being an interpretivist one, is significantly devoted
to the subjective interpretation of legal principles and scholarly arguments. The
interpretive nature of the study also means that the findings are inherently
influenced by the researcher’s perspective, which may introduce bias. There is a
lack of clear legal precedents regarding AI-generated art in many jurisdictions.
This ambiguity poses a challenge for legal analysis and can lead to speculative
27
S Campbell, M Greenwood, S Prior, T Shearer, K Walkem, S Young, D Bywaters, and K Walker,
'Purposive Sampling: Complex or Simple? Research Case Examples' (2020) 25(8) Journal of
Research in Nursing 652-61.
28
B Delipetrev, C Tsinaraki, and U Kostic, 'Historical Evolution of Artificial Intelligence' (2020).
12

conclusions. The research relies on interpretative approaches to fill these gaps,

which may not provide definitive answers.

Chapter 2
2.1 AI in Creative Processes
2.11 How AI Models Operate
In order to explore the more widespread effects of AI on copyright legislation
and the ethical considerations present therein, the inner functioning of AI tools
must be elucidated. AI-generated content covers a wide array of creative works
produced with the aid of artificial intelligence systems. AI algorithms, employing
techniques such as machine learning, deep learning, and natural language
processing, have become increasingly adept at creating various forms of content,
including text, images, music, and even entire films.29 These algorithms analyze
extensive datasets, identify patterns, and generate content that emulates human
creativity. AI-generated content possesses unique characteristics that distinguish
it from traditional human-created works. While human creators draw from their
personal experiences, emotions, and cultural backgrounds, AI algorithms depend
on vast amounts of existing data to guide their decision-making processes. As
scholars emphasize “these systems draw upon extensive datasets, training their
models to produce innovative content by discerning and emulating established
patterns and artistic styles.”30

How exactly are these models trained and what procedure do they undergo?
Two of the most common types of AI models that are trained for creating art are
Generative Adversarial Networks (GANs), and Convolutional Neural Networks. 31

Generative Adversarial Networks (GANs):

GANs consist of two neural networks: the generator and the discriminator. The
generator creates images, and the discriminator evaluates them against real
images from a training set. The generator gets feedback from the discriminator
about how real or fake its creations look and improves over time. This feedback
loop continues until the generator produces a result that is so realistic that the

29
Abdikhakimov, ‘Unraveling the Copyright Conundrum: Exploring AI-Generated Content and Its
Implications for Intellectual Property Rights’ (2023) 1(5) International Conference on Legal
Sciences 18–32 https://www.science-zone.org/index.php/conference/article/view/42 accessed
31 July 2024.
30
C Watiktinnakorn, J Seesai, and C Kerdvibulvech, ‘Blurring the Lines: How AI Is Redefining
Artistic Ownership and Copyright’ (2023) 3(1) Discover Artificial Intelligence 3, para 2.
31
J C Sacco and V Camilleri, ‘An Investigation into AI-Generated Art Through GANs and ML Neural
Network’ in K Arai (ed), Intelligent Computing (SAI 2024, Springer 2024) Lecture Notes in
Networks and Systems, vol 1016 https://doi.org/10.1007/978-3-031-62281-6_7 accessed 10 July
2024.
13

discriminator can’t distinguish whether it is real or fake.32 This process is an

example of machine learning, through which AI continues to flourish and grow in
its capability to mimic human ingenuity.33

Style Transfer Through Convolutional Neural Networks (CNNs):

Style transfer is another prevalent technique in AI art where the style of one
image is applied to the content of another. This is achieved using convolutional
neural networks (CNNs). The AI, powered by a CNN, looks at both images and
breaks them down into layers of features.34 These features can be simple things
like edges and textures, or more complex patterns like swirls and colors. The AI
separates the content (shape and structure) from the style (the colors, brush
strokes, and patterns) of the art piece. It then blends these two sets of features:
it keeps the content of original piece intact while applying the artistic style of the
other artwork to it.35 This involves optimizing an image so that its content
matches the original photo or work, and its style matches the artistic image.

Workflow:

A typical artwork generated by an AI model passes through a step by step

progression which is initiated by an input provided by an individual. This input
may be any sort of prompt: a text description, a base image, or even random
noise. The AI model then processes the input according to its training and the
desired outcome (e.g., creating a new image, transferring style). The final
artwork is then generated, which can be further refined or modified as needed in
accordance with the individual’s needs.36

One Example of a popular model which incorporates the aforementioned

techniques is DeepDream, an algorithm that enhances and modifies images to
create dream-like, surreal artworks by emphasizing patterns and features
detected by a deep neural network. Other examples are DALL-E and CLIP:
Models developed by OpenAI that generate images from textual descriptions.
DALL-E creates images based on the text input, while CLIP can understand, and
rank images based on text descriptions.37

32
Ibid.
33
Jia Z and Li Y, ‘Digital Media Artistic Creation Based on Generation Confrontation Network and
Internet of Things’ [2023] Computer-Aided Design and Applications 150
https://cad-journal.net/files/vol_21/Vol21NoS13.html accessed 31 July 2024.
34
K B Bhangale, P Desai, S Banne, and U Rajput, ‘Neural Style Transfer: Reliving Art Through
Artificial Intelligence’ in 2022 3rd International Conference for Emerging Technology (INCET) (IEEE
2022) pp 1-6.
35
Jia and Li, ‘Digital Media Artistic Creation’ (n 1) 150.
36
E Cetinic and J She, ‘Understanding and Creating Art with AI: Review and Outlook’ (2022) 18(2)
ACM Transactions on Multimedia Computing, Communications, and Applications 1–22.
14

2.12 Revolutionizing the Creative Process: How AI Benefits Artists

Numerous sources outline the multifaceted core benefits that AI systems
present, including the myriad possibilities they create for artists in terms on
increased efficiency, productivity and automation.38 AI tools enable artists to
explore new creative possibilities by offering advanced techniques for generating
unique designs, patterns, and concepts.39 For instance, generative adversarial
networks (GANs) can create entirely new visual styles, while natural language
processing (NLP) algorithms can generate poetry or music based on certain
themes or inputs. This efficient idea generation can contribute to inspiring the
artist’s future material, and “fueling their creative spark”.

AI improves efficiency and productivity in the creative process by automating

repetitive tasks and speeding up production. AI models enable artists to focus
more on the creative aspects of their work, as they automate time-consuming
tasks such as image editing, color correction, and pattern generation. Tools like
Adobe Sensei can quickly enhance images or videos, reducing the time and effort
required for post-production. This not only speeds up the creation process but
also increases the overall productivity of artists, enabling them to produce high-
quality works more rapidly.40

While the inner workings of AI reveal its powerful capacity to generate creative
outputs, they also expose significant challenges to existing legal frameworks,
particularly in the area of copyright. As AI continues to produce works that rival
human creativity, it challenges traditional notions of authorship, posing difficult
questions about how these creations should be protected—or whether they can be
protected at all—under current copyright law. The conventional view of copyright
law’s purpose, that it was established for the preservation of human creativity ,is
disrupted by AI outputs, as it is not entirely clear if the human input required in
AI generation is enough for copyright protection or sufficient to satisfy various
authorship standards. This emerging tension between AI innovation and legal
doctrine underscores the urgent need to reassess and potentially redefine
copyright principles, a topic that will be critically examined in the next chapter.

37
L Xian and E-W Huang, ‘Computer Generated Art: Exploring the Application of Artificial
Intelligence in Digital Art’ in System Innovation for a World in Transition (CRC Press 2023) pp 168–
172.
38
‘Embracing Creativity: How AI Can Enhance the Creative Process’ (sps.nyu.edu)
<https://www.sps.nyu.edu/homepage/emerging-technologies-collaborative/blog/2023/
embracing-creativity-how-ai-can-enhance-the-creative-process.html> accessed 31 July 2024
39
M A Ali Elfa and M E T Dawood, ‘Using Artificial Intelligence for Enhancing Human Creativity’
(2023) 2(2) Journal of Art, Design and Music 3.
40
Ibid.
15

Chapter 3
3.1 Copyright Law: Foundation and Legal Frameworks
3.11 Copyright Law: Overview and The Nature of Authorship
In order to examine the evolving relationship between artificial intelligence and
copyright laws, the context of the current legal system in relation to authorship
rights must be established. The copyright system encompasses laws that provide
for exclusive rights to copyrighted materials, and it was developed in the early
18th century when the printing press became more widely available 41. Specific
rights endowed in this regard include a work's duplicating or reproducing,
followed by publishing, presentation, and sharing before the public.42 To
determine who should be granted ownership of the copyright protection
attributed to AI artworks, we must first establish who the author of an AI
generated work is. This is because the author of the art is typically the owner of
the copyright protection accorded to the work, barring a few select cases. For
example, a company that commissions an AI-generated artwork might own the rights,
even if an individual programmer or artist is considered the author.43

In the field of creative works generated by AI, the first and most prevalent
conception of the term "author" refers to the originator of a piece.44 Some
scholars argue that AI should be more regarded as a tool or contrivance for a
human author rather than as an independent creator.45 Scholars have put
forward three candidates that could potentially serve as the author of an ai
generated work.46 Firstly, there is the human who coordinated the process of
creation, particularly in works that had assistance from AI.47 The attribution of
copyright to a human author vests in the theory that the presence of a
sufficiently close causal connection between what the human has contributed
and what the AI finally comes up could amount to an act of authorship.
Many commentators believe the second claimant to copyright authorship in this
regard is the AI program that generates the results themselves, especially in
situations where a work is exclusively created by an autonomous artificial

41
Burlyo, ‘AI-generated works’ (n 5).
42
WIPO Secretariat, ‘Revised Issues Paper on Intellectual Property Policy and Artificial
Intelligence’ (WIPO/IP/AI/2/GE/20/1 REV, 11 June 2022) para 23.
43
Ana Ramalho, ‘The Concept of Authorship and Ownership in AI-Generated Works: An
Intellectual Property Law Perspective’ (2020) 42 European Intellectual Property Review 773.
44
Ginsburg, ‘The Concept of Authorship’ (n 10) 1066.
45
Ibid.
46
WIPO Secretariat, ‘Revised Issues Paper on Intellectual Property Policy and Artificial
Intelligence’ (WIPO/IP/AI/2/GE/20/1 REV, 11 June 2022) para 23 (n 19).
47
E E Adaka and I A Olubiyi, ‘Lessons for Nigeria: Determining Authorship and Inventorship of
Artificial Intelligence Generated Works’ (2022) 2 Journal of Intellectual Property and Information
Technology Law 15.
16

intelligence.48 Those making such an argument make a sharp line of distinction in

this scenario from the preceding one wherein human involvement, did play a
major part. This special case applicable to AI technology is a completely
autonomous situation whereby the computer, using its AI, creates an entire
literary or artistic work without any type of human input. Hence, this separation
between the human's input and the computer's output gives rise to the issue of
the AI software itself being a valid copyright owner.49
Some argue that the copyright should be awarded to the entity or developer
who created and coded the artificial intelligence. To that effect, such a
perspective supports the entity or programmer as the rightful copyright holder
based on the huge input of creativity in implementing and designing the AI
system.50 It is this approach that further underscores the significance of
attributing copyright protection to individuals charged with the development
and deployment of the AI application which produces the final work.
The concept of authorship, at least in terms of its legal outline, is universally
defined globally. For instance, under United Kingdom’s Copyright, Designs and
Patents Act (CDPA) 1988 section 9(3), a person who organizes the making of a
literary, dramatic, musical or artistic work produced by computer is regarded as
its author.51 Similarly, AI generated works to which no human authorship
attaches are spelt out in CDPA Section 178. Other copyright laws like those of
New Zealand, Hong Kong and Ireland hold that the one who makes all key
arrangements for producing a computer-generated work becomes its author. 52

These regulations outline how even AI-generated works can be copyrighted

without having any human authors. This includes an emphasis on the role played
by the person responsible for managing essential steps in the production of such
works. Copyright protection for AI-generated creations would therefore depend
on the fact that there is a person responsible for the coordination of necessary
processes who makes a significant contribution. These legal provisions reflect a
belief in the need for human creativity, even in cases where the ultimate product
is the result of an AI or computer algorithm.53

Within the domain of literary and artistic content, the notion of authorship has
been based fundamentally on one aspect: human creativity. Hence, human
authors are given specific rights over their original creations. These rights
48
Ibid.
49
Daniel Gervais, ‘The Machine as Author’ (2020) 105(5) Iowa Law Review 2053.
50
Pamela Samuelson, ‘Allocating Ownership Rights in Computer-Generated Works’ (1986) 47(4)
University of Pittsburgh Law Review 1185.
51
A Guadamuz, ‘Do Androids Dream of Electric Copyright? Comparative Analysis of Originality in
Artificial Intelligence Generated Works’ (2017) 2 Intellectual Property Quarterly 169.
52
Ginsburg, ‘The Concept of Authorship’ (n 20) 1066.
53
Ibid.
17

empower them with the placing of their works on the market, gaining revenues
from such actions, making assignments of copyright, and safeguarding their
name from copyright infringement.54 The Berne Convention is considered a
landmark agreement in the field of copyright protection and represents cardinal
principles of a nature when one speaks about authors and their rights. This
international treaty gives general protection to all literary and artistic works and,
hence, offers its advantages to all authors and their successors.55 By doing this,
authors are empowered to protect and guard their creative works and claim
their rights. The Berne Convention further promotes clarity as it allows for the
clear indication of authors under their real name or pseudonym, therefore
completely ruling out any doubt concerning the authorship. In doing all this, the
Berne Convention plays a critical role in promoting protection, recognition, and
preservation of the works authored by people in literature and art. Basically, the
Berne Convention constitutes the core or host of other international instruments
that govern the understanding of authorship and copyright worldwide. 56
The development of copyright law has changed significantly over time. As stated,
It started with the invention of the printing press and has now reached a crucial
point with the rise of AI. This marks an important milestone in the evolution of
copyright law. Based on recent developments, global copyright systems have
been significantly disrupted by the outstanding capacity of AI technologies to
produce literary and artistic works in a consistently efficient manner. This
disruption is seen in ongoing debates about the problem of authorship in AI-
generated works.57 The key points of concern on which this discourse lies can be
summarized by statements attributed to Professor Sam Ricketson, who initially
asked the question of who the ‘rightful’ author behind artworks generated by AI
is. Did it stem from human creativity or the inventive capabilities of machines?
This insightful question resonates deeply with current debates surrounding
authorship in AI-generated content.58 Ricketson’s observation was that though
not specifically stating that an author had to be a human being, the Berne
Convention seemed to take this as an implied premise which its members shared
among themselves. This self-evident assumption poses some interesting
questions about how we see authors when regarding works produced by
artificial intelligence. The use of AI to produce literature and art has exploded
54
N Basri, ‘The Question of Authorship in Computer-Generated Work’ Journal of Law & Social
Change (13 January 2020) https://www.law.upenn.edu/live/news/9691-the-question-of-
authorship-in-computer-generated accessed 26 June 2024.
55
S Ricketson and J C Ginsburg, International Copyright and Neighboring Rights: The Berne
Convention and Beyond (2nd edn, Oxford University Press 2006) 87, 586.
56
Ibid.
57
A Bridy, ‘Coding Creativity: Copyright and the Artificially Intelligent Author’ (2012) Stanford
Technology Law Review 1, 24–27.
58
Ricketson and Ginsburg, International Copyright and Neighboring Rights (n 31) 586.
18

recently both quantitatively and qualitatively, raising unique challenges at the

interface between human and machine creativity. This rapid growth has given
rise to complicated policy issues in copyright systems.
Due to their dependence on algorithms, AI systems lack the element of agency
that human creators possess, as individuality and personhood does not apply on
artificial systems; therefore, this also prompts questions regarding whether AI
works will be entitled to copyright protection, and who the true owner of such
works would be if they are.59 Further, given the light speed at which AI-
generated content is populating digital platforms, mechanisms set up under
current copyright law for enforcement and monitoring are seen as inadequate
and outdated, calling for a renewed examination of legal standards and
policies.60
3.2 The Eligibility of AI for Copyright Protection: Authorship Laws in Different
Regions
The issue of non-human authorship has been a continuous discussion and
debate in common law countries like the US, UK, Malta, Ireland and New
Zealand. This is because these countries' utilitarian lines of interests are in
encouraging innovation so that the public can access creative works for the
betterment of society.61 This view gives less importance to the question of the
personal identity of the creators, maybe even opening the way to non-human
authors. However, an analysis of the case law, at least in the US, makes the
actual position of such legal frameworks clear when deliberating the issue at
hand.62
The US Supreme Court has traditionally construed the Copyright Act as limiting
copyright protection solely to works produced by human authors. It appears this
is a judicial position that would contract copyright, making it applicable only to
creations originate from human creativity.63 In the case of Burrow-Giles
Lithographic Co. v. Sarony, the court used the term "originator" or "maker" in
describing an author to whom a work owes its origin, referring particularly to
photographs as conclusively promotive of an author's original intellectual
conceptions.64 Again, in Goldstein v. California, the Supreme Court refined an

59
B E Boyden, ‘Emergent Works’ (2016) 39 Columbia Journal of Law & the Arts 377, 378–79; M E
Kaminski, ‘Authorship, Disrupted: AI Authors in Copyright and First Amendment Law’ (2017) 51
UC Davis Law Review 589, 592.
60
Ibid.
61
Copyright, Designs and Patents Act 1988, ss 77, 80
https://www.legislation.gov.uk/ukpga/1988/48/contents accessed 12 July 2024.
62
Ibid.
63
Ginsburg, ‘The Concept of Authorship’ (n 20) 1066.
64
Burrow-Giles Lithographic Co v Sarony 111 US 53 (1884).
19

author, in constitutional terms, as he who writes or composes an original work;

this dictum fostered the link between authorship and mental effort.65
Jurisprudence further holds that a valid author must have human involvement
and creative elements, indicating that copyright protection does not come into
play sans originality and individual expression. This principle was further
hammered home by the case of Feist Publications, Inc. v. Rural Telephone
Service Co., which held that in order to be eligible for copyright, a work must
exhibit at least some degree of creativity that can be attributed to the author. 66
In other words, copyright protection cannot be given to the mere compilation of
facts with no creativeness involved; it is on the basis of this requirement that the
lower courts have strongly upheld human authorship, improper for non-human
authors to be eligible for consideration within the case law.
For example, in Urantia Foundation v. Maaherra, the Ninth Circuit Court of
Appeals held that a work allegedly authored by non-human spiritual beings could
only qualify for copyright protection if the evidence showed enough human
selection and arrangement of content.67 Likewise, the 2018 ruling of Cetacean
Community v. Bush established legal standing for animals in copyright claims,
whereby Article III constitutional standing was confirmed for the ability of a
monkey to sue under the US Constitution, not for statutory standing under
provisions of the federal Copyright Act.68 Although the monkey had
constitutional standing to sue, the court held that the statutory framework of
the Act does not provide copyright protection to non-human animals. As such,
the monkey's claim of copyright infringement was dismissed for lack of statutory
standing. The case tended to accentuate the conceptual difference between
constitutional and statutory standing in copyright law, further entrenching the
prerequisite of human activity in creative processes for copyright protection. 69
In the case of Kelley v. Chicago Park District, a court made a ruling that a living
garden could not be granted copyright protection. It was explained that a garden
lacks the requirements or elements for authorship and non-transitory elements
to qualify for copyright eligibility.70 While things like written compositions or
sculptures are fixed and tangible works, a garden is cultivated, dynamic, and
changes with the seasons. It was therefore held that the garden did not amount
to a permanent work worthy of copyright protection. This case demonstrates the
inadequacy of copyright law to recognize works which lack traditional notions of
65
Goldstein v California 412 US 546 (1973).
66
Feist Publications Inc v Rural Telephone Service Co 499 US 340 (1991).
67
Urantia Foundation v Maaherra 114 F 3d 955, 964 (9th Cir 1997).
68
Cetacean Community v Bush 249 F Supp 2d 1206 (D Haw 2003).
69
Ibid.
70
Kelley v Chicago Park District 635 F 3d 290, 304 (7th Cir 2011).
20

authors and stability. Although copyright law is supposed to protect original

creative works, which include literary, artistic, and even architectural works of
creation, case law stemming from Kelley raises numerous questions with respect
to extending such protection to living and evolving things like gardens. The court
held that an ordinary work must enjoy a level of permanence and fixation before
it can be considered eligible for copyright protection.
In 2019, the Copyright Office refused to register a 2D work entitled A Recent
Entrance to Paradise, which was created by an AI dubbed the Creativity Machine.
The applicant, Stephen Thaler, sought to register the work as its author,
asserting ownership as the developer and user of the Creativity Machine.71
Thaler filed two requests for reconsideration following the initial refusal.
However, the Copyright Office reaffirmed its refusal to register the work on
February 14, 2022, concluding that it lacked a human author. The Review Board
concluded that "human authorship is a prerequisite to copyright protection in
the United States," thus this work could not be registered. In June 2022, Thaler
filed a federal lawsuit against the Copyright Office to compel registration of the
work citing the Creativity Machine as the author and Thaler as the copyright
owner.72
With the case ongoing and it garnering wide publicity, other applicants started
poking at the system by trying to test registrations of works created using text-
to-image generators. For example, Kristina Kashtanova recently registered a
comic book entitled Zarya of the Dawn, with images created by an artificial
intelligence system called Midjourney.73 The work was initially registered on
September 15, 2022, but the USCO subsequently contacted Kashtanova for more
information about the role of AI in the creative process after she publicized the
registration on social media and let her know that they were considering
canceling the registration. The USCO made a declaration on February 21, 2023,
where Kashtanova was considered the author of the text and also of the
selection, coordination, and arrangement of the written and visual components
of the work, which were all deemed valid to copyright protection. However, the
images produced by the Midjourney AI were not viewed as a product of human
authorship. Thus, the USCO considered canceling the original registration to
Kashtanova in favor of a new certificate covering just the expressive material she
71
Copyright Review Board, US Copyright Office, ‘Re: Second Request for Reconsideration for
Refusal to Register a Recent Entrance to Paradise’ (Correspondence ID 1-3ZPC6C3; SR # 1-
7100387071, 14 February 2022).
72
Ibid.
73
Franklin Graves, ‘Copyright Office Pilot Public Records System Mistakenly Reflects Cancellation
of Registration for AI Graphic Novel’ (24 January 2023) IPWatchdog
https://ipwatchdog.com/2023/01/24/copyright-office-publishes-retracts-official-cancellation-
registration-ai-graphic-novel/id=155686/ accessed 15 July 2024.
21

created. The decision reflects the shift that is presently tearing through the
courts on copyright law as it relates to AI and other non-human authorship
issues.74
A number of prominent cases in this shifting legal landscape have further defined
the ambiguities where copyright law intersects with AI. One such lawsuit
involves the case of copyright infringement filed by Getty Images against Stability
AI for training its AI systems with copyrighted photos. According to reports,
Stability AI copied a minimum of 12 million copyrighted images that naturally
belong to Getty Images for its Generative AI models. In the UK, Getty Images
aimed at stopping the sales of Stability AI on grounds of having used the
copyrighted images to "train" their Stable Diffusion system.75 Also, A US federal
judge has dismissed an attempt to copyright artwork created by an AI image
generator, in a ruling that has underlined just how incredibly tricky the question
of authorship and copyright is when it comes to AI.76
In India, the law on copyright says that, in the case of computer-generated or
generated literary, dramatic, or artistic works, the person who causes them to be
created—arranges for their production—is considered as the author. It must be
noted at the same time that even when the contribution of AI in the process of
creation is very substantial, the human creator or programmer is regarded as
being the first and foremost cause of such works.77 There is no definition of
"author" under the heading of artistic and literary works within the Copyright Act
of 1957. However, the term is comprehensively and completely defined under
section 2(d) of the Act. The "author" in relation to a literary or dramatic work,
means the person who creates the work. For musical works, the "author" is the
composer. For artistic works excluding photographs, the "author" shall be the
artist. Moreover, according to this Act, the person taking a photograph is
considered an "author" with respect to photographs.78
What is most noteworthy, however, is the completely divergent approaches
Australia and Thailand have taken in the application of copyright law. Both
74
Franklin Graves, ‘U.S. Copyright Office Backtracks on Registration of Partially AI-Generated
Work’ (1 November 2022) IPWatchdog https://ipwatchdog.com/2022/11/01/us-copyright-office-
backtracks-registration-partially-ai-generated-work/id=152451/ accessed 16 July 2024.
75
Baba Tamim, ‘AI Image Generator Hit by $1.8 Trillion Lawsuit from Getty Images: The Stock
Image Agency Claims that Over 12 Million Copyrighted Images Along with Their Descriptions and
Metadata—Were Used to Train Stable Diffusion, an AI Image Creator’ (8 February 2023)
Interesting Engineering https://interestingengineering.com/culture/getty-images-lawsuit-against-
stability-ai accessed 17 July 2024.
76
‘As Fight over A.I. Artwork Unfolds, Judge Rejects Copyright Claim’ (21 August 2023) The New
York Times https://www.nytimes.com/2023/08/21/technology/ai-artwork-copyright.html
accessed 12 July 2024.
77
Indian Copyright Act 1957, s 2(d) (No 14 of 1957).
78
Ibid.
22

countries currently leave AI-generated works unprotected due to the

requirement for human personality not being met by AI creations. Although such
works could display the requisite originality, so the argument goes, they lack the
aggregate features of effort, knowledge, and intellect that go to make up the
notion of originality.79
Likewise, the Singaporean law on copyright encompasses the role of human
authors and, in this regard, it rules out the usage of machine as authors by
pointing out that a human element needs to be made clear.80 It was further sub
sequently clarified in Asia Pacific Publishing Pte Ltd v Pioneers & Leaders
(Publishers) Pte Ltd on the issue while the Singapore Court of Appeals reaffirmed
four basic requirements which are going to be established or entitled for
copyright protection.81 At the very outset, section 2(7) did not spell out clearly
who would amount to being a copyright author under the Act. Yet, such
omission did not mean to extend the concept of a "qualified person" to artificial
persons like corporations. Historical backdrop shows that the legal rights had
been awarded to natural persons ab initio; hence, the concept of originality was
premised on human authorship. Establishing a human author as the creator of a
work is preconditioned before it is established as an "original work" entitled to
copyright protection. This issue was also addressed in the case of B2C2 Ltd v
Quoine Pte Ltd.82
In this judgement, before the Singapore International Commercial Court
concerning AI in cryptocurrency transactions, Judge Simon Thorley made very
far-reaching observations. Notably, he mentioned that the legal principles about
knowledge attribution in cases where computers replace human actions will and
must evolve with emerging disputes. AI-driven systems that can operate
autonomously but are, nevertheless, strongly deterministic—that is, following
instructions without deciding or becoming conscious as entities—appears
particularly relevant in this respect. As more lawsuits involving AI-driven systems
emerge, the legal understandings of knowledge attribution to computer actions
will have to evolve further.83

79
Nattapong Suwan-In, ‘Copyright Protection on AI-Generated Work: The Case Study of the US,
UK, and Thailand Copyright Laws’ (2021) Journal of Law Public Administration and Social Science
131, 142. See also Australian Copyright Act 1968 (Cth) (Copyright Act) and IceTV Pty Ltd v Nine
Network Australia Pty Ltd [2009] HCA 14.
80
Susanna HS Leong, ‘Legal Protection of Factual Compilations and Databases: Re-Thinking the
Copyright Protection Model in Singapore’ (2002) 5 Journal of World Intellectual Property 1047.
81
Asia Pacific Publishing Pte Ltd v Pioneers & Leaders (Publishers) Pte Ltd [2011] SGCA 37.
82
Evan Ng, ‘B2C2 Ltd v Quoine Pte Ltd [2019] SGHC (I) 03’ (2019) Singapore Commercial Law
Review 207.
83
Ibid.
23

These legal precedents make it clear that Singaporean law is not currently
providing overt protection for literary and artistic works created by AI. The
foregoing decisions bring forth the fact that there is no express provision of law
in this regard, and that there is a general reluctancy to afford copyright
protection to works that have been generated exclusively by AI tools.
The results from these countries show that there is a consistent belief in the
importance of human creativity as the main principle behind copyright law in
many parts of the world.
Currently, both case law and the practices of the US Copyright Office make it
clear that works created solely by AI without any human involvement are not
eligible for copyright protection. The main requirement for copyright protection
is that a human author must be involved in the creative process. This legal
framework reinforces the idea that copyright law is meant to protect the
originality and creative contributions of human creators. While AI technology has
increasingly evolved and can produce some impressive works, the fact alone that
no human involvement goes directly into the creative process could arguably
preclude AI generated digital art from gaining copyright protection. 84
3.3 Further Cases and Judicial Precedent
While there have been various cases assessing the aptness of AI systems for
copyright protection, to date, no case of copyright infringement of an AI work or
challenging the Human Authorship Requirement has been litigated in the United
States, and many other nations. Several factors may contribute to this. First of
all, copyright applicants may have gotten registrations by not disclosing that
their works were created by AI; similarly, the prosecution of claims for
infringement by not identifying the source of their works.85 More likely, the lack
of case law is indicative of the low value of AI-created works. For instance, while
an AI-created song might represent an impressive technical advance, if it is not
going to generate substantial streaming revenues, there is no reason to incur the
high legal fees involved in copyright litigation.86 The latest to make headlines—
and attract a copyright infringement threat—is Canadian artist Adam Basanta,
for his work entitled All We'd Ever Need Is One Another. This mixed-media
installation creates upwards of more than a thousand images per day using two
flatbed scanners set to face each other, running scanning cycles in perpetual
motion with randomized settings controlled by software.87 These images are

84
Gianmaria Ajani, ‘Human Authorship and Art Created by Artificial Intelligence – Where Do We
Stand?’ in Digital Ethics (Nomos Verlagsgesellschaft mbH & Co. KG 2022) 253–270.
85
Michael D Murray, ‘Generative AI Art: Copyright Infringement and Fair Use’ (2023) 26 SMU
Science and Technology Law Review 259.
86
Ibid.
87
Adam Basanta, ‘All We’d Ever Need is One Another’ (last accessed 18 July 2024)
http://allwedeverneed.com/.
24

then validated by a machine-learning algorithm self-trained on patterns similar

to those in a large database of contemporary abstract works. If a randomly
generated image passes the predetermined 83% threshold for similarity with a
known work, it is automatically uploaded to a specially made website, displayed
as an "art-factory" output, and given a title that varies referencing the similar
human-made art.

What some anticipated to be Canada's first AI-related copyright suit occurred

when Montreal artist Amel Chamandy alleged copyright infringement by Basanta
against her photographic work, Your World Without Paper, with the production
of an image identified as an 85.81% match. The claim by Chamandy alleged that
"the process used by the Defendant to compare his computer-generated images
to Amel Chamandy's work necessarily required an unauthorized copy of such a
work to be made," and sought statutory damages of up to $20,000. While the
parties have now settled, this hypothetical helps to highlight the copyright issues
potentially raised by AI-generated works, particularly in the realm of copyright
infringement.88

Within the Asian copyright regimes, the principle of attributing authorship to

humans exclusively is very predominant. China, being one of the most pervasive
users and developers of AI technologies, had to grapple with the question of
authorship when it came to AI-created works before its courts. One important
judgment, Shenzhen Tencent v Shanghai Yingxun, illustrates this issue. 89 In this
case, the Nanshan District People's Court had to make a ruling on whether works
created through AI applications, like Dream Writer, are entitled to copyright
protection. The ruling of the court established that works created by AI are
eligible for copyright but explained that claims of authorship ought to achieve
the normal requirements of intellectual creation under Chinese law.90

Another important case is that of Gao Yang and Youku, decided by the Beijing
Court. It dealt with the copyrightability of photographs automatically taken by a
camera attached to a hot-air balloon. Thus, this was a case about whether AI-
generated photos could be protected under Chinese copyright law. A court ruled
that under China's legal outlines, the automatic photos captured by a plaintiff's
camera are entitled to copyright protection. Consequently, it was held that
defendant's use of the photos without authority infringed the plaintiff's
copyright in the photographs. What that decision drew to the attention of all was
88
Statement of Claim at para 30, quoted by Teresa Scassa, ‘Artist Sued in Canada for Copyright
Infringement for AI-Related Art Project’ (4 October 2018)
http://www.teresascassa.ca/index.php?option=com_k2&view=item&id=286 accessed 12 July
2024.
89
Shenzhen Tencent v Shanghai Yingxun Case No Y0305MC No 14010 (Nanshan District People’s
Court, Shenzhen, Guangdong, China 2019).
90
Ibid.
25

the fact that although taking the photo in question was automated by the hot-air
balloon itself, the plaintiff's placing of a sports camera was a sufficient basis for
creativity to merit copyright protection.91

3.4 AI and The Issue of Originality

As elucidated above with the aid of legal precedent, one of the central tenets of
Intellectual property law that acts as a necessary prequisite for attaining
copyright protection is the label of originality. The chief precept or quality that
makes it so a work may be considered suitable for copyrightability is that it must
be ‘original’, i.e must require a certain degree of individual ability and judgement
from the author.92 Around the world, originality is defined in different ways when
addressing the legal purpose of the term. For example, the supreme court of
Canada describes an original work as one that “must be more than a mere copy
of another work,” but it “need not be creative, in the sense of being novel or
unique.”93 The work must include elements of one’s knowledge, developed
ability or personal acumen in its production process. The author must also bear
the capacity to reach a conclusive opinion or perspective by comparing or
deconstructing opposing options when creating the work. The amount of
‘judgement’ or individual skill an author must possess should not be so
inconsequential that it may be branded as a “purely mechanical exercise”. 94 This
‘threshold of originality’ is easily fulfilled by the programmer that has coded the
AI tool, as the AI system is a type of protected literary work itself. More crucially
however, this threshold is also likely to be met by the users of the AI themselves
who have employed the system as an assistive instrument that still requires a
degree of human input to operate. Said human input is arguably a satisfactory
measure of the ‘human ability’ and judgement that reflects originality. 95

The idea of originality in common law has traditionally been linked to the “sweat
of the brow” doctrine, but this standard for originality has changed in countries
such as US and is no longer necessary to establish authorship or qualify a work
for copyright. This approach suggests that its no longer customary for the extent
of mere labor carried out by the author to be the key deciding factor in whether
the work is deemed original, the conditions for attaining copyright protection are
now increasingly dependent on the creativity that was spent by the creator in
the conception of the work.96 Adding onto this view, the case of Hollinrake v

91
Beijing Intellectual Property Court Jing 73 Min Zhong No 797 Civil Judgment (2 April 2020).
92
Mark Fenwick and Paulius Jurcys, ‘Originality and the Future of Copyright in an Age of
Generative AI’ (2023) 51 Computer Law & Security Review 105892.
93
CCH Canadian Ltd v Law Society of Upper Canada [2004] SCC 13, para 16.
94
CCH Canadian Ltd v Law Society of Upper Canada [2004] SCC 13, para 16.
95
Hafiz Gaffar and Saleh Albarashdi, ‘Copyright Protection for AI-Generated Works: Exploring
Originality and Ownership in a Digital Landscape’ (2024) Asian Journal of International Law 1-24.
96
S Yanisky-Ravid and LA Velez-Hernandez, ‘Copyrightability of Artworks Produced by Creative
Robots, Driven by Artificial Intelligence Systems and the Concept of Originality: The Formality-
26

Truswell further expounds that the benchmark of originality is not reliant upon
the novelty, newness or innovation of a work but rather upon its link to the
author itself.97 This means that, in order for an artistic work to be labeled as
original, it must have been conceived and established by the author’s own
creativity, rather then originating as a facsimile of some other source. This
clarified that the originality of a work is derived from the creative skill utilized by
the author in creating it, and not its uniqueness in comparison to other works.
This is the standard legal classification of originality in jurisdictions such as Wales
and the UK.

In the case of University of London Press v. University Tutorial Press, it was

explained that for a work to be considered original, some amount of skill and
effort has to be shown, for example, not being a copy of another existing work.
This perception of the concept of originality, relating only to independent
creation and not copying, has had a massive influence in the formation of the
legal viewpoint within the UK.98
Also, the court in Burrow-Giles Lithographic Co. v. Sarony asserted that for
copyright protection to be awarded to a work, a degree of creativity must be
involved.99 Again, the US district court in Time Inc. v. Bernard Geis Associates
made a similar ruling. This court gave an example of the standard of originality
by explaining that the elements of subject selection, framing, and timing add the
personal touch into the making of a photograph.100
The Court of Appeal in Alfred Bell & Co. v. Catalda Fine Arts, Inc. provided more
clarity still. According to the court, there are two basic requirements for
originality, which include the fact that the work has to be an independent
creation of the author, also called independent origin, and the work should
demonstrate at least a minimal degree of novelty that shows some amount of
distinctiveness. The case clarified the essential constituents of originality—that a
work need not be an independent creation and that minimal novelty needs to be
in existence—and further solidified that a work must not be a direct imitation or
duplicate of another already existing one.101
Furthermore, the threshold which a work must meet to be eligible for copyright
protection was laid down by the US Supreme Court in the seminal case of Feist
Publications, Inc. v. Rural Telephone Service Co. The Court voiced two threshold
requirements: first, the work has to be an independent creation of the author,
Objective Model’ Minnesota Journal of Law, Science & Technology (forthcoming).
97
Hollinrake v Truswell [1894] 3 Ch 420 (CA).
98
University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601.
99
Burrow-Giles Lithographic Co v Sarony (n 40).
100
Time Inc. v Bernard Geis Associates 293 F Supp 130 (SDNY 1968).
101
Alfred Bell & Co v Catalda Fine Arts Inc 191 F2d 99 (2nd Cir 1951).
27

necessarily requiring an element of originality of creation; second, a minimal

degree of creativity. The Supreme Court judgment therefore restated the
previously understood position that to pass for copyright protection, every
creation must pass the threshold test of originality. More simply expressed, it
means that some amount of creative input or uniqueness should be embedded
in a work other than mere facts or data. The Feist Publications, Inc. v. Rural
Telephone Service Co. decision underlines the standard of originality by
entrenching that copyright is given to works that reflect a bona fide degree of
intellectual contribution.102
The concept of originality, unlike in common law jurisdictions, is often shaped
with judicial precedent in civil law jurisdictions, most notably within the
European Union.103 The systems would care less about effort and skill in
producing a work, but more with the inherent link between the author and their
creation. Originality in civil law is often perceived as starting from the principle of
an inalienable link of authorship, bearing within the private nature of the
author's relationship to his work.104 A major case illuminating the concept of
originality by AI works is Football Dataco Ltd v Yahoo! UK Ltd. The court accepted
in this case that a work is regarded as an intellectual creation if it reflects, for
instance, the personality of its creator. It does so by the creator having the ability
to make free and creative choices while producing the work. The Court
nonetheless held that, in so far as the characteristics of a work are determined
by its technical function, the required level of originality may not be met. 105
The Court, in its judgment in Brompton Bicycle Ltd v Chedech, has thus further
consolidated the idea that for a work to be considered original, it cannot be
dictated purely by technical considerations, rules, or other constraining elements
that might limit or confine creative freedom. As the court puts it, in case the
latter remove any room for creative imagination, such a work may not enjoy
protection due to the lack of necessary originality.106
Another case that may help explain the concept of originality in AI-created works
is Cofemel v G-Star. The court insisted that a work will not be considered original
if the process of its production is completely determined by technical
requirements, rules, or other constraints that exclude creative freedom. 107 Hence

102
Feist Publications Inc v Rural Telephone Service (n 42).
103
P Bernt Hugenholtz and João Pedro Quintais, 'Copyright and Artificial Creation: Does EU
Copyright Law Protect AI-Assisted Output?' (2021) 52(9) IIC-International Review of Intellectual
Property and Competition Law 1190, 1190-1216.
104
Ibid.
105
Football Dataco Ltd v Yahoo! UK Ltd [2012] EWCA Civ 1759, [2013] 1 All ER 15.
106
Brompton Bicycle Ltd v Chedech [2020] EWHC 104 (IPEC), [2020] FSR 25.
107
Cofemel – Sociedade de Vestuário SA v G-Star Raw CV (C-683/17) EU:C:2019:721.
28

it was ascertained that for a work to gain copyright protection, a constitutive

element of creative freedom must be present in its design or creation process.
The cases herein cited might give the impression that the courts are generally
averse to conferring protection on AI-generated works. That would be
misleading. In reality, the eligibility of AI-generated works for copyright
protection is not predicated upon the technical aspects prevalent in their
creation. The requirement for copyright protection lies more in whether such
works exhibit originality and express the author's personality with independent
and creative choices, even in the face of technical limitations. In essence, the
courts focus on the creative and personal aspects of a work rather than its
technical origin when determining copyright eligibility.108
One major implication the rulings of these cases have is that works created with
the participation or assistance of AI, where human input is significant, would be
entitled to copyright protection if they reflect traces of human creation or
creative prowess.109 Satisfaction of the requirement for originality requires a
human element and contribution. More particularly, this view of the law is
reinforced by the main purpose of copyright protection itself, which lies in
fostering interests in authors to create more original and creative works, taking
advantage of their unique human characteristics and the possibilities offered by
inventive AI software.

Nevertheless, the case of autonomous AI is unique, as there is little to no evident

influence of the user or programmer on its functioning. Normally, the concepts
of “discernable judgement” and trained skill are assumed or thought to be a
special trait of human ingenuity, but the complexity of AI algorithms begs the
question: “is the human attribute of judgement and performed ability wholly
separate from the ‘deep learning methods’ and training routines of AI
technologies such as GANs?” Do machines, although inherently unable to "form
an opinion," still demonstrate a "capacity for discernment" when they choose
between various available options? Does an automated process, which relies
heavily on copying extensive amounts of data, entail more than just "simple
replication"? Additionally, is the AI-generative process, despite being executed
by a machine, more than merely "mechanical" in nature? 110

Numerous academics and experts on the issue argue that the answer is a
definitive no. Professor Daniel Gervais states that originality is the core base
108
H B Abrams, 'Originality and Creativity in Copyright Law' (1992) 55 Law & Contemporary
Problems 3.
109
Gaffar and Albarashdi (n 71) 5.
110
Nahide Basri, ‘The Question of Authorship in Computer-Generated Work’ (13 January 2020)
Journal of Law & Social Change https://www.law.upenn.edu/live/news/9691-the-question-of-
authorship-in-computer-generated accessed 20 July 2024
29

upon which the idea of copyright protection is founded, and that AI generated
artistic content cannot be characterized as original because the kind of expansive
critical thinking that leads to novel individual expression is a feature solely of the
human mind.111 Moreover, he argues that for a work to be original and hence be
accredited to a specific author, the author must be able to assume responsibility
for his creations, which AIs, owing to their non-sentient nature, cannot do. 112

In the Third Session on Intellectual Property and Artificial Intelligence, the chief
dialogue focused on two opposing theories. Critics rejected the idea of granting
copyright protection to AI-created works and gave various justifications for such
a rejection.113 Some commentators highlighted that the technical input of human
factors together with AI algorithms would not justify the protection under
copyright of AI-created works. They explained that copyright law has always
insisted on human authorship.114 The meaning of AI was still ill-defined and
scantily developed. Further, they said that every work created by AI should be in
the public domain. They cautioned that the expansion in copyright to AI-assisted
creative works would entail policy problems at the stages of arrangement,
creation, and selection, and would deplete the public domain. It was their
argument that putting more AI-generated literary and artistic works under
copyright would restrict access of the public to such works.115

Other academics have, however, argued for extending copyright protection to

AI-generated works.116 They hold the view that if refusal of copyright protection
is based on the absence of a human actor, then it would mean that all such
works will automatically fall into the public domain, in which case consumers can
use them without having to worry about copyright infringement. It is further
considered inconsistent to continue allowing the developers of AI software to
obtain patent protection while the results generated by that software remain
unprotected. This latter group of researchers therefore opines that works
created with the use of AI should be entitled to copyright protection regardless
of origin. They emphasize identifying and rewarding creative contributions made
through AI systems.117 They feel that keeping copyright protection for AI-
generated works is the balanced approach toward innovation and access to
creative works. Indeed, one such view would present the simply arguable case
for reform of the law to keep pace with the technological change in AI and build
111
Gervais (n 25)
112
Ibid.
113
WIPO Secretariat (n 19) para 23.
114
Ibid.
115
Ibid.
116
Ernest M Oleksy, ‘That Thing Ain't Human: The Artificiality of "Human Authorship" and the
Intelligence in Expanding Copyright Authorship to Fully-Autonomous AI’ (2023) 72 Cleveland
State Law Review 263.
117
T L Butler, ‘Can a Computer Be an Author? Copyright Aspects of Artificial Intelligence’ (1981) 4
Comm/Ent LS 707.
30

appropriate legal frameworks supporting and encouraging AI-bred creativity.

This outlook highlights the importance of revising copyright laws to align with AI
technology advancements and to create legal frameworks that foster and
promote AI-assisted creativity.118

Chapter 4
4.1 Policy recommendations
2.41 Designating AI as Inventors

The law needs to provide for AI systems as inventors, enabling these

technologies to be fully recognized as independent authors, especially in the
case of autonomous creation. At the same time, however, patent applications
need to retain an ability to identify people as "proxy inventors" while detailing
the contribution that the AI system made toward the invention. There should be
clearer disclosure and transparency of the AI's contribution to the invention. 119

If an AI system generates something new, without human input, then it should

be so indicated in a patent application and the AI system named as the originator
or author. At the same time, a person or entity claiming ownership of the patent
application should also be named.
Any such proposal is based on the rising recognition of AI as an actor in
innovation. Current patent laws, in general, require an inventor to be a human
being who can comprehend the invention and act in its establishment. With new
developments in AI technology, these very basic definitions need revision to
properly attribute inventive contributions that solely arise from AI systems.

Under the proposed amendments, an AI system may be identified as an inventor

in patent applications where it has independently generated an inventive output
without human intervention. For this to happen, legal regimes will need to
evolve to take into account both the capacity of AI to create and solve.
Meanwhile, a person might be identified as a "proxy inventor" for purposes of
the patent application process to represent the AI system and ensure the legality
and accountability of the process.

118
T Aplin and G Pasqualetto, ‘Artificial Intelligence and Copyright Protection’ in Rosa Maria
Ballardini, Petri Kuoppamäki and Olli Pitkänen (eds), Regulating Industrial Internet Through IPR,
Data Protection and Competition Law (Kluwer 2019).

119
Peter Georg Picht and Florent Thouvenin, ‘AI and IP: Theory to Policy and Back Again – Policy
and Research Recommendations at the Intersection of Artificial Intelligence and Intellectual
Property’ (2023) 54(6) IIC-International Review of Intellectual Property and Competition Law 916–
40.
31

Such a framework would be important if accompanied by required disclosures

that include detailed descriptions of the various ways in which AI systems have
participated in the inventive process. This kind of transparency should provide
the fullest sense of how AI is involved in the development of new technologies,
ensuring appropriate settings for patent protection between AI and human
inventors.120

The other step in this regard would be to integrate the AI capabilities into the
PHOSITA concept. It is a concept setting the level of creativity required to make
an invention patentable. The recognition of AI under such a concept will increase
the threshold of patentability, hence ensuring that the patents are granted to
works that are actually innovative and not a routine use of AI algorithms that
results in an insufficient level of inventiveness.

It is in this regard that elevating AI to the stature of an inventor presents some

legal and conceptual challenges but also opportunities toward a more responsive
and dynamic patent law regime. The legal system will come out striking a
balance between encouraging innovation and fairness and accountability in
patent rights by making wise choices in embracing these changes. 121

2.42 Retaining the need for human authorship

The idea of human authorship should be at the heart of copyright law, especially
in systems that follow droit d’auteur (author’s rights). This viewpoint emphasizes
that works created entirely by AI, without any human involvement, shouldn't be
eligible for copyright protection, even if they meet the standards for creativity
set by current copyright law.
As established, The main idea behind present copyright law is protecting and
promoting human creativity. Underlying this philosophy is the principle that
creative works represent an expression of the human mind, emotions, and
culture.122
By giving priority to human authorship, copyright law tends to provide for an
atmosphere whereby people are motivated to produce original works. 123
When a work is produced through the collaborative effort between an AI system
or tool and a human, the result may meet the standard for copyright protection.

120
Ibid.
121
Ibid.
122
E Lee, ‘Prompting Progress: Authorship in the Age of AI’ (2024) 76 Florida Law Review.
123
James Grimmelmann, ‘There’s No Such Thing as a Computer-Authored Work – And It’s a Good
Thing, Too’ (2016) 39 Columbia Journal of Law & the Arts 403, 403.
32

However, this is contingent upon the requirement that the human contribution
involved in the creation of the work must meet a certain threshold for creativity.
This contribution must exceed the rudimentary guidance or management of the
AI and play a notable role in the creative process that shapes the work. The work
must possess a significant degree of individual expression that is representative
of the creative output of the human mind. Hence, any piece of art that is
produced solely through an AI without the necessary human involvement and
effort required cannot qualify for copyright protection.124
2.43 Implementation of a new sui generis right for AI generated output

A sui generis right is defined as a form of legal protection that is unique or

particular to a certain subject matter and which does not correspond to
traditional categories of intellectual property, for example, copyright, patent,
trademark, or law of trade secrets. The expression "sui generis" is Latin, which
means "of its own kind" or "unique."125 In general, such rights have been created
due to some needs or gaps in the current legal regimes which the traditional IP
laws did not take adequate care of. 126

The established context underlies that there are many legal and ethical
uncertainties in relation to traditional copyright law when applied to ai
generated output. Hence, to achieve more clarity and transparency, a sui generis
right specifically tailored to AI produced artistic content would help mitigate
such uncertainties and lay a better groundwork for AI related legislation moving
forward. This viewpoint proclaims that, instead of enforcing the conventional
framework of copyright law onto AI generations, a new system of legal
protection altogether should be put into place to address the intellectual
property rights of AI works.

Such an implementation is reliant on the following legal outlines and conditions:

Only AI generated content that is original may be entitled to the protection

offered by the sui generis right. As emphasized previously, this standard of
originality is dependent upon two parameters.127 First, the work must be
produced independently by the creator with no direct reproduction of or copying
124
Ibid.
125
‘Glossary’ (World Intellectual Property Organization)
https://www.wipo.int/tk/en/resources/glossary.html#s accessed 18 July 2024 (Black’s Law
Dictionary’s definition of “sui generis”).
126
Peter Drahos, ‘The Universality of Intellectual Property Rights: Origins and Development’ in
Intellectual Property and Human Rights (WIPO 1998) 13, 13
https://www.wipo.int/edocs/pubdocs/en/wipo_pub_762.pdf accessed 20 July 2024
127
Kazeeva, I., 'Sui Generis Intellectual Property Protection for Works Generated by AI Systems' in
Sui Generis Intellectual Property Protection: Comparison of EU and US Regulatory Approaches
(Springer Nature Singapore 2024) 65-78.
33

from another source. Second, there must be a measure of creativity in the

creation of the work.

Moral rights should not be afforded to holders of sui generis rights for content
resulting from AI-generation.128 The U.S. Copyright Act supports moral rights,
such as attribution and integrity, under which creators of visual art may claim
authorship and preserve the personal and reputational value of their works.
These may include the right of the creator to be identified as the author of the
work, the right of the creator to prevent any distortion or other modifications of
their work, and the right of the creator to decide when and how their work is
made public. This ensures that the creator receives recognition and credit for
their creation. The Sui generis model for AI works should be covered by
industrial copyright laws, which are supposed to protect the economic gains
made from their exploitation. In a similar line of thought, the sui generis rights
for AI-created works should not extend to moral rights.129 Since AIs do not have a
legal persona, reputation or individuality, moral rights do not apply. In its place,
this sui generis framework should deal only with economic rights and guarantee
that in this respect rightholders interested in works generated by AI creations
will be able to commercially exploit them for profitable purposes.130
Also, protection for the new sui generis rights in AI-created works should have a
limited duration of ten years or a similar period. By comparison, traditional
copyright protects works for the life of the author plus seventy additional
years.131 For many other sui generis intellectual properties, protection is
significantly shorter, and only for a duration of ten years from the date of
registration with the U.S. Copyright Office, or ten years from the date of first
commercial use anywhere in the world, whichever is earlier.132 It should also be
provided in the proposed legislation that sui generis rights in AI-created works
are protected for a ten-year duration from the date when an AI-created creation
is first made available to the public.
Sui generis rights should only extend to prevent exact copies or duplicates of AI-
generated creations.133 In traditional materials that are copyrighted,
unauthorized copying that is considerably similar to the work in copyright,
128
Ibid.
129
Benjamin Hardman and James Housel, 'A Sui Generis Approach to the Protection of AI-
Generated Works: Balancing Innovation and Authorship' (2023) SSRN
https://ssrn.com/abstract=4557004
130
Ibid.
131
17 U.S.C. § 302(a) (2023) (‘Copyright in a work created on or after January 1, 1978, subsists
from its creation and, except as provided by the following subsections, endures for a term
consisting of the life of the author and 70 years after the author’s death’).
132
Ibid 904.
133
Hardman and Housel (n 105).
34

except in cases of fair use, would amount to copyright infringement. In the case
of AI-generated creation, the threshold for infringement needs to be that of
literal copying or precise replication.134 This recognizes the fact that creation
through AI technologies is based on the training of algorithms through large data
sets, and since a non-human machine cannot be an independent author, then
lower levels of legal protection would be appropriate.

By adhering to such guidelines, a sui generis right would encourage more

investment in the development of AI technologies, since creators and companies
would have clear legal protection for the outputs produced by their AI systems.
Under this legal structure, AI works become part of the public domain much
earlier and also lessen the chance of infringement, enabling unconstrained
utilization of AI generated works by the general population. To further future
proof the provisions granted by the sui generis right, the users any AI tool must
be required to publicly clarify and validate If a work has been generated by AI.

Chapter 5
5.1 Summary of Findings

This dissertation explored the intersection of AI-generated art and copyright law,
aiming to address the challenges and implications of assigning copyright to non-
human creators. The research findings indicate that current copyright laws are
insufficient to address the complexities introduced by AI technologies. A key
finding is that AI-generated works do not fit neatly within traditional copyright
frameworks, suggesting a need for legislative reform.

5.2 Interpretation of Results

The theoretical implications of this study suggest a shift in how creativity and
authorship are conceptualized in the digital age. Practically, the findings highlight
the urgent need for legal clarity to ensure that both human artists and AI
developers understand their rights and obligations. The study contributes to the
ongoing debate by providing a detailed analysis of existing legal frameworks and
proposing potential pathways for adapting copyright law to accommodate AI-
generated art.

5.3 Addressing the Research Questions

The research successfully addressed the primary questions: How do current

copyright laws apply to AI-generated art, and what are the potential legal
reforms needed? The study found that while existing laws provide some
134
Marshall A Leaffer, Understanding Copyright Law (6th edn, LexisNexis 2014) § 9.04. An
examination of the similarity standard used in copyright law.
35

guidance, they are largely inadequate for the nuances of AI-created works. The
objectives of understanding and proposing solutions for the copyright challenges
posed by AI art were met through comprehensive legal analysis and stakeholder
interviews.

5.4 Recommendations for Future Research

Future research should focus on longitudinal studies to track the impact of

proposed legal reforms over time. Additionally, empirical studies examining the
economic and cultural impact of AI-generated art on traditional artists and the
broader art market would provide valuable insights.

5.5 Practical Recommendations

Policymakers should consider establishing a new category of intellectual

property rights specifically for AI-generated works, i.e a sui generis right.
Industry stakeholders, including artists and AI developers, should collaborate to
create standardized guidelines for the use and distribution of AI-generated art.

5.6 Concluding Remarks

In conclusion, this dissertation highlights the pressing need for adaptive legal
frameworks that can keep pace with technological advancements. By addressing
the unique challenges posed by AI-generated art, this research contributes to a
more nuanced understanding of copyright law in the digital age. The findings
underscore the importance of ongoing dialogue between legal scholars,
technologists, and policymakers to ensure that copyright law evolves in a way
that balances innovation with protection of creators’ rights.
36

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Amendment Law' (2017) 51 UC Davis Law Review 589

19. Lee E, 'Prompting Progress: Authorship in the Age of AI' (2024) 76 Florida
Law Review

20. Leong S H S, 'Legal Protection of Factual Compilations and Databases: Re-

Thinking the Copyright Protection Model in Singapore' (2002) 5 Journal of
World Intellectual Property 1047

21. Murray M D, 'Generative AI Art: Copyright Infringement and Fair Use'

(2023) 26 SMU Science and Technology Law Review 259

22. Ng E, 'B2C2 Ltd v Quoine Pte Ltd [2019] SGHC (I) 03' (2019) Singapore
Commercial Law Review 207

23. Oleksy E M, 'That Thing Ain't Human: The Artificiality of "Human

Authorship" and the Intelligence in Expanding Copyright Authorship to
Fully-Autonomous AI' (2023) 72 Cleveland State Law Review 263

24. Osman S and others, 'Inductive, Deductive and Abductive Approaches in

Generating New Ideas: A Modified Grounded Theory Study' (2018) 24(4)
Advanced Science Letters 2378

25. Paul G, 'Approaches to Abductive Reasoning: An Overview' (1993) 7(2)

Artificial Intelligence Review 109
38

26. Picht P G and Thouvenin F, 'AI and IP: Theory to Policy and Back Again –
Policy and Research Recommendations at the Intersection of Artificial
Intelligence and Intellectual Property' (2023) 54(6) IIC-International
Review of Intellectual Property and Competition Law 916

27. Ryan G, 'Introduction to Positivism, Interpretivism and Critical Theory'

(2018) 25 Nurse Researcher 41

28. Samuelson P, 'Allocating Ownership Rights in Computer-Generated

Works' (1986) 47(4) University of Pittsburgh Law Review 1185

29. Suwan-In N, 'Copyright Protection on AI-Generated Work: The Case Study

of the US, UK, and Thailand Copyright Laws' (2021) Journal of Law Public
Administration and Social Science 131

30. Watiktinnakorn C, Seesai J, and Kerdvibulvech C, 'Blurring the Lines: How

AI Is Redefining Artistic Ownership and Copyright' (2023) 3(1) Discover
Artificial Intelligence 3

31. Yanisky-Ravid S and Velez-Hernandez L A, 'Copyrightability of Artworks

Produced by Creative Robots, Driven by Artificial Intelligence Systems and
the Concept of Originality: The Formality-Objective Model' Minnesota
Journal of Law, Science & Technology (forthcoming)

32. Annemarie Bridy, ‘Coding Creativity: Copyright and the Artificially

Intelligent Author’ (2012) 5 Stanford Technology Law Review 1.
33. Sarah Burstein, ‘Are AI-Generated Works Copyrightable? An Analysis of
U.S. Copyright Law’ (2019) 27 Journal of the Copyright Society of the
USA 1.
34. Abbe E.L. Brown and Charlotte Waelde, ‘Authors, Machines, and Joint
Works: Reconceptualizing Copyright Law for the Digital Age’ (2017) 44
UC Davis Law Review 219.
35. Niva Elkin-Koren, ‘Copyright in a Digital Ecosystem: A User-Based
Perspective’ (2017) 22 Journal of Intellectual Property Law 115.
36. Timothy Endicott, ‘AI and Copyright: Overprotection Risks and Ethical
Implications’ (2021) 34 International Journal of Law and Information
Technology 77.
37. Andres Guadamuz, ‘Artificial Intelligence and Copyright’ (2017) 18
WIPO Magazine 3.
38. Tanya Aplin, ‘Copyright in AI-Generated Works: A UK Perspective’
(2019) 42 Intellectual Property Quarterly 25.
39. Shlomit Yanisky-Ravid and Luis Javier Vasquez, ‘In the Age of AI: New
Models of Copyright Authorship’ (2018) 24 Harvard Journal of Law &
Technology 231.
39

40. Joshua Yuvaraj, ‘Rethinking Originality in Copyright: The Impact of AI-

Generated Works’ (2020) 41 European Intellectual Property Review 505.

Books and Book Chapters:

1. Ajani G, 'Human Authorship and Art Created by Artificial Intelligence –

Where Do We Stand?' in Digital Ethics (Nomos Verlagsgesellschaft mbH &
Co. KG 2022)

2. Aplin T and Pasqualetto G, 'Artificial Intelligence and Copyright

Protection' in Rosa Maria Ballardini, Petri Kuoppamäki and Olli Pitkänen
(eds), Regulating Industrial Internet Through IPR, Data Protection and
Competition Law (Kluwer 2019)

3. Drahos P, 'The Universality of Intellectual Property Rights: Origins and

Development' in Intellectual Property and Human Rights (WIPO 1998)

4. Hastie P and Hay P, 'Qualitative Approaches' in Richard Tinning, David

Kirk and Patricia G. M. McDonald (eds), Research Methods in Physical
Education and Youth Sport (Routledge 2012)

5. Hollstein B, 'Qualitative Approaches' in J Scott and P J Carrington (eds),

The SAGE Handbook of Social Network Analysis (SAGE 2011)

6. Kazeeva I, 'Sui Generis Intellectual Property Protection for Works

Generated by AI Systems' in Sui Generis Intellectual Property Protection:
Comparison of EU and US Regulatory Approaches (Springer Nature
Singapore 2024)

7. Leaffer M A, Understanding Copyright Law (6th edn, LexisNexis 2014)

8. Ricketson S and Ginsburg J C, International Copyright and Neighboring

Rights: The Berne Convention and Beyond (2nd edn, Oxford University
Press 2006)

9. Xian L and Huang E-W, 'Computer Generated Art: Exploring the

Application of Artificial Intelligence in Digital Art' in System Innovation for
a World in Transition (CRC Press 2023)

10. Lionel Bently and Brad Sherman, Intellectual Property Law (5th edn, OUP
2018).

Conference Papers:
40

1. Abdikhakimov, 'Unraveling the Copyright Conundrum: Exploring AI-

Generated Content and Its Implications for Intellectual Property Rights'
(2023) 1(5) International Conference on Legal Sciences 18

2. Bhangale K B and others, 'Neural Style Transfer: Reliving Art Through

Artificial Intelligence' in 2022 3rd International Conference for Emerging
Technology (INCET) (IEEE 2022)

3. Sacco J C and Camilleri V, 'An Investigation into AI-Generated Art Through

GANs and ML Neural Network' in K Arai (ed), Intelligent Computing (SAI
2024, Springer 2024) Lecture Notes in Networks and Systems, vol 1016

4. Then C and others, 'The Impact of Artificial Intelligence on Art - A

Systematic Literature Review' (2023) 2023 IEEE 9th Information
Technology International Seminar (ITIS) (IEEE)

Websites:

1. Basanta A, 'All We'd Ever Need is One Another' (last accessed 18 July
2024) http://allwedeverneed.com/

2. Basri N, 'The Question of Authorship in Computer-Generated Work'

Journal of Law & Social Change (13 January
2020) https://www.law.upenn.edu/live/news/9691-the-question-of-
authorship-in-computer-generated

3. 'Embracing Creativity: How AI Can Enhance the Creative Process'

(sps.nyu.edu) https://www.sps.nyu.edu/homepage/emerging-
technologies-collaborative/blog/2023/embracing-creativity-how-ai-can-
enhance-the-creative-process.html

4. 'Glossary' (World Intellectual Property

Organization) https://www.wipo.int/tk/en/resources/glossary.html#s

5. Graves F, 'Copyright Office Pilot Public Records System Mistakenly

Reflects Cancellation of Registration for AI Graphic Novel' (24 January
2023) IPWatchdog https://ipwatchdog.com/2023/01/24/copyright-office-
publishes-retracts-official-cancellation-registration-ai-graphic-novel/
id=155686/

6. Graves F, 'U.S. Copyright Office Backtracks on Registration of Partially AI-

Generated Work' (1 November 2022)
IPWatchdog https://ipwatchdog.com/2022/11/01/us-copyright-office-
backtracks-registration-partially-ai-generated-work/id=152451/
41

7. Scassa T, 'Artist Sued in Canada for Copyright Infringement for AI-Related

Art Project' (4 October 2018) http://www.teresascassa.ca/index.php?
option=com_k2&view=item&id=286

8. Smee S, 'Perspective | AI Is No Threat to Traditional Artists. But It Is

Thrilling.' Washington Post (28 February
2023) https://www.washingtonpost.com/arts-entertainment/2023/02/15
/ai-in-art/

9. Tamim B, 'AI Image Generator Hit by $1.8 Trillion Lawsuit from Getty
Images: The Stock Image Agency Claims that Over 12 Million Copyrighted
Images Along with Their Descriptions and Metadata—Were Used to Train
Stable Diffusion, an AI Image Creator' (8 February 2023) Interesting
Engineering https://interestingengineering.com/culture/getty-images-
lawsuit-against-stability-ai

10. 'AI Will Become the New Normal': How the Art World's Technological
Boom Is Changing the Industry' (The Art Newspaper - International art
news and events, 28 February
2023) https://www.theartnewspaper.com/2023/02/28/ai-will-become-
the-new-normal-how-the-art-worlds-technological-boom-is-changing-
the-industry

11. 'As Fight over A.I. Artwork Unfolds, Judge Rejects Copyright Claim' (21
August 2023) The New York
Times https://www.nytimes.com/2023/08/21/technology/ai-artwork-
copyright.html

Cases:

1. Alfred Bell & Co v Catalda Fine Arts Inc 191 F2d 99 (2nd Cir 1951)

2. Asia Pacific Publishing Pte Ltd v Pioneers & Leaders (Publishers) Pte Ltd
[2011] SGCA 37

3. Beijing Intellectual Property Court Jing 73 Min Zhong No 797 Civil

Judgment (2 April 2020)

4. Brompton Bicycle Ltd v Chedech [2020] EWHC 104 (IPEC), [2020] FSR 25

5. Burrow-Giles Lithographic Co v Sarony 111 US 53 (1884)

6. CCH Canadian Ltd v Law Society of Upper Canada [2004] SCC 13

42

7. Cetacean Community v Bush 249 F Supp 2d 1206 (D Haw 2003)

8. Cofemel – Sociedade de Vestuário SA v G-Star Raw CV (C-683/17)

EU:C:2019:721

9. Feist Publications Inc v Rural Telephone Service Co 499 US 340 (1991)

10. Football Dataco Ltd v Yahoo! UK Ltd [2012] EWCA Civ 1759, [2013] 1 All
ER 15

11. Goldstein v California 412 US 546 (1973)

12. Hollinrake v Truswell [1894] 3 Ch 420 (CA)

13. IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14

14. Kelley v Chicago Park District 635 F 3d 290, 304 (7th Cir 2011)

15. Shenzhen Tencent v Shanghai Yingxun Case No Y0305MC No 14010

(Nanshan District People's Court, Shenzhen, Guangdong, China 2019)

16. Time Inc. v Bernard Geis Associates 293 F Supp 130 (SDNY 1968)

17. University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch
601

18. Urantia Foundation v Maaherra 114 F 3d 955, 964 (9th Cir 1997)

Legislation (chronologically):

1. Indian Copyright Act 1957 (No 14 of 1957)

2. Australian Copyright Act 1968 (Cth)

3. Copyright, Designs and Patents Act 1988

4. 17 U.S.C. § 302(a) (2023)

Other:

1. Copyright Review Board, US Copyright Office, 'Re: Second Request for

Reconsideration for Refusal to Register a Recent Entrance to Paradise'
(Correspondence ID 1-3ZPC6C3; SR # 1-7100387071, 14 February 2022)
43

2. Delipetrev B, Tsinaraki C, and Kostic U, 'Historical Evolution of Artificial

Intelligence' (2020)

3. Hardman B and Housel J, 'A Sui Generis Approach to the Protection of AI-
Generated Works: Balancing Innovation and Authorship' (2023)
SSRN https://ssrn.com/abstract=4557004

4. WIPO Secretariat, 'Revised Issues Paper on Intellectual Property Policy

and Artificial Intelligence' (WIPO/IP/AI/2/GE/20/1 REV, 11 June 2022)