Dealing with AI-generated works: lessons from the CDPA section 9(3)

Abstract

Abstract This article aims to provide some input for revising the text of section 9(3) of the Copyright, Designs and Patents Act 1988 (CDPA), without proposing a new provision. Specifically, it addresses the question of how this provision should be construed vis-à-vis Artificial Intelligence (AI)-generated outputs. Although numerous options have been discussed in literature, so far none of them has comprehensively looked at the broader context in which users of generative AI models give instructions and how these prompts could impact issues of subsistence in AI-generated outputs. This article aims to fill that gap. Before suggesting a new framework for reconsidering the provision of section 9(3) CDPA, this contribution briefly revisits the originality, fixation and human authorship requirements, and explains how these are met when AI is involved in creative processes. Next, it questions whether the copyright regime is the appropriate form of protection for AI-generated outputs. Lastly, it provides an examination of the strengths and weaknesses of section 9(3). This article supports the human-centred approach of the CDPA towards authorship of AI-generated works. However, it also suggests that a more nuanced approach should be adopted. Specifically, it contends that under section 9(3), AI-generated works should belong to the user of the AI model giving instructions only as long as such directions to create are sufficiently original themselves for the purposes of copyright protection. Furthermore, de lege ferenda, this distinction should be expressly included in the text of section 9(3).