AI shown through running data image with text ARTIFICIAL INTELLIGENCE … MY COPYRIGHT … ????



Have you thought about what happens when artificial intelligence creates new Intellectual Property (IP)? More importantly, you’ve just signed off on a multi-million dollar technology spend but can you tell the Board the company owns the IP?

You would not be alone in thinking you own the IP your tech creates. However, the Australian Courts have decided you don’t, in fact no one does…it’s authorless. That’s right, the time and money you spent on tech (including your tablets and smartphones) is creating valuable, yet authorless IP.

What is Artificial Intelligence?

Artificial intelligence is upon us. We’ve all heard the term but what does it actually mean? Who better to ask than Siri, my personal assistant, a.k.a the queen of AI (who said we rely on our smartphones?).

When I asked for a definition of artificial intelligence, Siri responded:

“Alright, here’s what I got: the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.” 1

Bill Gates recently referred to artificial intelligence as “the dream is finally arriving”, he also acknowledged that artificial intelligence brings problems. In particular the potential elimination of jobs and professions, and the task of ensuring humans remain in control. Other experts have claimed:

  • 40% of the jobs presently done by humans will be extinguished and done by robots in the near future; and
  • in as little as eight years, AI will not be distinguishable from human intelligence.

AI is making our lives easier and businesses more efficient however in my view the problem is that Australia’s current laws are insufficient to protect the IP it creates.

What does Australian copyright law say about AI?

The short answer is – not a lot! The Copyright Act 1968 (Cth) says the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work. The Act is helpful when it comes to photographs. It tells us that the “author” of a photograph is the person who took it (note “person” – not robot, computer, monkey or smartphone) but it doesn’t tell us who is the author in relation to other works such as copyright created by AI.

What do the Judges say about AI?

In the Telstra Phone Directories case the Federal Court decided that telephone directories did not contain copyright which was capable of protection. The reason for the decision was that much of the contribution to the phone directories “was not the result of human authorship but was computer generated” 2. Furthermore “a majority of the creation process [of the telephone directories] was heavily automated” 3.

Not all IP is lost

You will be the author and own the IP created by your technology if there has been “independent intellectual effort” or “sufficient effort of a literary nature”  What is classified as sufficient? Good question. At this stage “sufficient effort” 4 it is a grey area.  Perhaps the best guidance is from Justice Perram in the Telstra Phone Directories appeal case who says “a plane with its autopilot engaged is flying itself”. That is, a person must have more input in AI than the pilot’s input on an autopilot plane…I guess we can say that’s a lot!

What should you do?

  1.    Contact us before you make that tech spend and the Board asks you if the company owns the IP.
  2.    Watch this space – when the law catches up we’ll let you know.

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