Generative Artificial Intelligence Guide

Copyright does not protect ideas (it is the expression of the idea that is protected) and it does not protect facts and information. Copyright protects certain categories of material including 'works' (such as a literary, musical, artistic work, etc.), provided that the work is original and expressed in material form.

Humans have always used 'tools' (e.g. pen, paintbrush, camera) to create original works, but the use of computer technology and AI can make it particularly difficult to identify an author/creator or the extent of human involvement (if any) in the creation of a work.

Under Australian copyright law, a work will have copyright protection where it is:

• an original work of the author/creator, and
• expressed in material form.

Under current Australian copyright law, a work that does not have a human author is not protected by copyright.

The copyright status of the underlying material on which Gen AI algorithms rely is problematic. There is little transparency and therefore few details about the source of materials that have been used to 'train' AI systems.

From a copyright perspective, it is apparent that Gen AI systems clearly produce so-called unique content using copyright material for which the permission of the copyright owner has not been obtained. This is not only an issue for copyright protection, but may also be questionable when it comes to plagiarism and academic integrity best-practice.

Legislative developments regarding intellectual property have not kept pace with the exponential advancement of communication and creation tools powered by AI. While current laws offer certain guidance regarding rights, obligations, and protections of creative works, they do not directly address AI, leading to uncertainties which Australia and other nations are just starting to address. To ensure clearer guidelines on ownership, authorship, and liability, significant legislative reforms will be necessary.

If you exclusively depend on AI for generating your images or text and fail to demonstrate substantial human input, the resulting creative work might not be eligible for copyright protection. However, presently, there are no explicit criteria defining what would qualify as substantial effort, leading to ambiguity, especially in artworks where an artist might offer additional instructions or manipulate the image separately to achieve the final result.

Regarding reuse and attribution, since solely AI-generated works fall outside the scope of Copyright Law, they aren't subject to moral rights, meaning acknowledgment or attribution isn't mandated. However, if a human's independent intellectual effort is significant enough to qualify as an author, their full moral and commercial rights must be respected, including acknowledgment.

Nevertheless, for transparency's sake, it's always advisable to disclose the use of AI in generating the work.

References:
Australian Copyright Council. (2023, May 17). Artificial Intelligence & Copyright. https://www.copyright.org.au/browse/book/Australian-Copyright-Council-Artificial-Intelligence-&-Copyright-INFO142

• Arts Law Centre of Australia: Artificial Intelligence (AI) and Copyright
• StudioLegal (Australia law firm): ChatGPT and Copyright – Your Key Questions Answered
• King & Wood Mallesons (International law firm): It copies, right? Generative AI & copyright law
• World Intellectual Property Organisation (WIPO): Intellectual Property and Frontier Technologies