Can Artificial Intelligence software claim copyright in any work that was created using their algorithms?
The short answer is “no”, since only humans can establish copyright in original creative works. Copyright can be assigned to a company or trust, or it can be created under various forms of creative commons, but there still needs to be a human author behind the copyright material. While copyright may lapse over time, it then becomes part of the public domain.
However, the extent to which a human author can claim copyright in a work that has been created with the help of AI is now being challenged. A recent case in the USA has determined that the author of a graphic novel, which included images created using Midjouney, cannot claim copyright in those images. While it was accepted that the author devised the text and other prompts that the software used as the generative inputs, the output images themselves could not be the subject of copyright protection – meaning they are either in the public domain, or they fall under some category of creative commons? This case also indicates that, in the USA at least, failing to declare the use of AI tools in a work when applying for copyright registration may result in a rejected application.
Does this decision mean that the people who write AI programmes could claim copyright in works created using their software? Probably not – as this would imply that Microsoft could establish copyright in every novel written using Word, especially its grammar and spelling tools.
On the other hand, programmers and software developers who use copyright material to train their models may need to obtain relevant permission from the copyright holders (as would anyone using the AI tools and who uses copyright content as prompts), unless they could claim exemptions under “fair dealing” or “fair use” provisions.
As more classic works of literature come out of copyright protection, and enter the public domain, publishers and booksellers can look forward to sales of re-packaged titles, for which they won’t have to pay royalties. With the right combination of content and marketing, it’s as good as free money.
Under the Berne Convention, copyright in published works is the life of the author plus 50 years, although many territories have extend this to life plus 70 years (100 in Mexico!). These periods may be subject to extensions if the executors of literary estates are able to renew the existing copyright (under previous copyright regimes) or by issuing revised editions of existing works which are sufficiently different to the original so as to constitute an entirely separate publication – but these are exceptions.
By allowing copyright to lapse, this should mean key works will always be in print, and even more obscure titles can be revived with little to no production cost. For nearly 20 years, Google Books has been scanning works out of copyright and putting them online. But even this process can run into copyright limitations, and questions of provenance (as illustrated by the treatment of George Orwell’s “1984”). But this has also encouraged some enterprising individuals to sell “reprints” of facsimile copies of scanned titles, when the buyer thought they were purchasing an authentic copy, or a contemporary edition (i.e., newly typeset and printed).
Intellectual property law may be complex, and in need of reform to reflect modern technology and contemporary society. But as copyright works pass into the public domain, there remains the issue of moral rights. These give writers the right to be identified as the author of a work (“attribution”), and to protect their work against inappropriate use (“derogatory treatment”). Moral rights also protect writers against “false attribution” – i.e., a publisher can’t claim a work was written by an author who didn’t actually write it.
Moral rights vary from country to country (e.g., Germany, UK, USA, Australia), but generally do not survive when copyright expires. Which can mean that unscrupulous publishers may feel emboldened to “modify” original texts at will, given some recent examples of key 20th century novels. Surely not what authors and their legacies should be subject to?
On February 18 this year, Facebook decided to “ban” news content in Australia. This meant that Australian Facebook users (including media companies) could not post news content or links, nor could they access local or overseas news. The move was a preemptive strike (and a somewhat crude negotiation tactic) by Facebook in an attempt to circumvent the Media Bargaining Code, which requires social media and search engine platforms (specifically, Google and Facebook) to pay news providers for the use of their content. Despite the gnashing and wailing among some sectors of the Australian community, the world did not end. And while Facebook has somewhat relented (following some concessions from the Federal government), the story has generated some useful debate about the power of certain tech platforms and the degree of influence or control they exercise over what we see on our screens each day.
Personally, I did not find the ban an inconvenience, because I rarely use my Facebook account, and I certainly don’t rely on it for news or information. Instead, I prefer to access content direct from providers. One result of the ban was more downloads for Australian news apps such as the ABC and Inkl. Another (unforeseen?) result was a block on information posted by public and voluntary sector bodies, including essential services, health, community and charitable organisations.
Regarding the former, this can only be a good thing. Seriously, if we are relying on Facebook for news content, THAT is the real problem. As for the latter, it suggests a lot of organisations have become over-reliant on Facebook to reach their audience.
Meanwhile, Google (which had already struck a deal with Australian media companies) was eagerly promoting the number of Australian “partner publications” it offers in its News Showcase. This was something of a U-turn, because Google had threatened to remove search in Australia in response to the same Media Bargaining Code. While that might have been drastic, nevertheless, other search engines are available.
It was also interesting to see Microsoft (no stranger to anti-trust action during the so-called browser wars) promoting BuzzFeed via Twitter on the day of the Facebook ban. I also received a number of e-mails from various organisations reminding me that I could still access their content direct from their website or via their newsletter. These moves to re-connect direct with audiences started to make Facebook look very silly and petulant.
Just as there are other search engines besides Google, other social media platforms are available – so why do so many people appear to be against the Media Bargaining Code, and would prefer to give Facebook a free monopoly over which content they read?
I have written previously about Facebook’s relationship with “news”. For those people who felt “cheated” that they couldn’t access news, they should realise that a “free” social media account comes with a price – the consumer is the product, and is only there to serve up eyeballs and profiles to be sold to Facebook’s advertisers. In short, Facebook only sees news as a magnet for its own advertisers, so it seems only fair that they should pay for this piggyback ride on someone else’s content. (And we all know what else Facebook does with our personal information, as the Cambridge Analytica scandal revealed.)
Some commentary suggested that Facebook is providing a type of “public service” by enabling links to news stories – so much so, that they question whether it is equitable to force Facebook to pay for the privilege, under the new Code. In fact, some argued that Facebook should be charging the media companies for linking to their stories, since this drives traffic to third-party news sites, which in turn generate advertising income based on their own readership. But this overlooks the reality of the economic bargain being struck here: Facebook might like to argue that it is doing you a “favour” by serving up news content in your personal feed; whereas, the social media giant “curates” what you see in your feed purely to generate ad revenue.
Alternatively, if news content has no value to Facebook, why has it been happy to distribute it for “free” all these years? Because, I repeat, they know full well that without readers and content, they can’t sell advertising. Maybe Facebook should invest in journalism and create their own news content? Oh wait, they don’t want to be regulated like a newspaper. Remember in 2013 when Facebook said it wanted to be “the world’s newspaper”, but then they realized they’d have to comply with media laws (libel, racial vilification etc.) and quietly dropped the plan?
In short, Facebook is not interested in being a news publisher (nor being subject to relevant media laws) but they are happy to “leverage” third-party content. Now, they will have to pay a fair price to use that content.
The conclusions from this Facebook episode (and some clumsy messaging from the Federal government) are pretty obvious:
There is no such thing as a free lunch – a “free” social media account comes with a price; and there is also a cost attached to using someone else’s content
Taxation of tech company revenues like Facebook, Google, Apple, Netflix and Amazon should be at the point of sale and consumption (i.e., where the consumer value is created and the income is generated, not where the revenue is recognised).
Other search engines and social media platforms are available and content can be accessed direct from the source (but we’re probably too lazy to change our habits….)
In part, this is about the continued demise of the 4th estate – no-one wants to pay for content, so social media platforms are getting a free ride having already destroyed the newspapers’ classified and display advertising business model
But it’s also about the attention economy – consumers are the product when it comes to social media, so perhaps we should get paid more for our own time spent looking at ads?
As ever, tech outstrips legislation – the law lags behind and is playing catch up
And politicians really don’t have a clue how to go about this…..
I was first introduced to the box set phenomenon in 1974, when I received a collection of novels by J G Ballard for my birthday. This led to an on-off interest in sci-fi (Asimov, Aldis, Bradbury, Dick, Spinrad, Crichton et al). It also made me aware that curators (like librarians) have an enormous influence on the cultural content we consume, and the way we consume it. Even more so nowadays with streaming and on-demand services. Welcome to the binge society.
Welcome to box set culture (Image sourced from Unsubscriber)
With network TV being so rubbish (who needs more “reality” shows, formulaic sit-coms or re-hashed police procedurals?) I am slowly being drawn back into the Siren-like charms of Netflix. More on that in a moment.
Box set culture has been especially prevalent in the music industry, despite or even because of downloading and streaming services. It’s possible to buy the complete works of particular artists, or curated compilations of entire record labels, music genres or defining eras of music. It’s a niche, but growing, business. In recent times, I have been lured into buying extensive box set retrospectives of major artists (notably Bowie, Pink Floyd, The Fall, Kraftwerk), as well as extended editions of classic albums (Beatles, Beach Boys), and first time releases of exhumed and near-mythical “lost” albums (Big Star, Brian Eno, Beach Boys again). I like to justify these acquisitions on the basis that they are significant works in the canon of contemporary music. But only die-hard fans would attempt to embrace the monumental box set put out recently by King Crimson – comprising a 27-disc compilation of just TWO(!) years in the band’s history.
Death (and/or lapsed copyright) has become a fertile ground for box set curators and re-issue compilers, whether in literature, film or TV, as well as music. I’m sure there are publishers and editors maintaining lists of their dream compilations, waiting for the right moment to release them (a bit like the TV stations and newspapers who keep their updated obituaries of the Queen on standby). Sadly, in the case of Mark E Smith of The Fall, his death was immediately preceded by a significant box set release (tempting fate?). And as for Bowie, he had no doubt planned his legacy (and now posthumous) retrospectives prior to his own demise.
On the other hand, streaming services create the false impression we are in control of what we listen to or watch. Unless we meticulously search, select and curate our own individual playlists, we are at the mercy of algorithms that are based on crowd-sourced behaviours that are imposed upon our own personal preferences. These algorithms are based on what is merely popular, or what the service providers are being paid to promote. And while it is possible to be pleasantly surprised by these semi-autonomous choices, too often they result in the lowest common denominator of what constitutes popular taste.
And so to Netflix, and the recent resurgence in pay TV drama. Binge watching (and box set culture in general) has apparently heralded a “golden age of television“ (warning: plug for Sky TV). But depending on your viewpoint, binge watching is either a “boon to shared culture“ (the normally stoical New Statesman) or results in “half-baked content” (the usually culturally progressive Guardian). Typically, the Independent is on the fence, acknowledging that binge viewing has “changed the way TV is made“ (and watched) but at what price? Not to be left out, even Readers Digest has published some “handy health tips for binge-TV addicts“. Meanwhile, Netflix itself has released some researchon how binge-watching informs our viewing habits (and presumably, our related consumer behaviours). And not everyone thinks this obsession with binge watching is healthy, or even good for business – presumably because it is not sustainable, as consumers will continue to expect/demand more and more at lower and lower subscription fees.
Meanwhile, for a totally different pace of binge-watching, SBS recently tested audience interest in “slow TV”. The free-to-air network screened a 3 hour, non-stop and ad-free documentary (with neither a voice-over narrative nor a musical soundtrack) featuring a journey on Australia’s Ghan railway. So successful was the experiment, not only did the train company’s website crash as viewers tried to find out about tickets, but SBS broadcast a 17 hour version just days later.
Next week: Infrastructure – too precious to be left to the pollies…
Content in Context 