Introduction

In our previous discussion, we explored the concerning question of whether training artificial intelligence (AI) could potentially lead to copyright infringement. Building on that, this article aims to delve into another facet of the evolving legal landscape surrounding AI—the protection of AI-generated work under copyright law.

Companies are investing significantly in developing their own AI for reasons such as improving efficiency, automating processes, enhancing customer experience, achieving cost savings, and pursuing related benefits. Given the substantial investment in superior AI development, it is likely that companies would seek to ensure the protection of their AI-generated output, akin to how authors, filmmakers, artists, musicians, and other creators expect copyright protection for their work. Therefore, the question arises: Can AI-generated work be protected by copyright? Unfortunately, the answer is not straightforward.
 
Understanding AI-Generated Work

Before delving into the question of whether AI-generated work can be protected by copyright law, it is essential to grasp the nature of the work produced by AI. For the purpose of focus, let us narrow our scope to generative AI, a type familiar to most people. In the current market, several generative AI systems, including ChatGPT, Stable Diffusion, DALL-E, and Midjourney, empower users to input prompts and generate impressive literary, artistic, and cinematic creations. This transformative technology is reshaping industries, particularly in media, entertainment, advertising, graphic design, and film production, prompting companies in these sectors to invest millions in AI to harness the full potential of this cutting-edge technology.

However, concerns arise about whether those heavily investing in generative AI can rely on copyright law to protect their AI-generated work. As briefly mentioned earlier, the answer is not straightforward, and at the time of writing, it leans toward the likelihood that AI-generated work may not be protected by copyright. Nevertheless, we believe that the legal landscape is evolving, and we will delve into this further below.
 
Challenges in Copyright Laws

In different jurisdictions, there are varying requirements for a work to qualify for copyright protection. Commonly, in Commonwealth countries such as the EU, UK, Australia, and even Malaysia, there is a shared understanding that a work needs a sufficient level of intellectual effort to be considered original. When copyright laws were drafted, the concept of generative AI did not exist, and consequently, the laws did not anticipate the current dilemma where, instead of a human creator, the creator in question is an AI. Therefore, regrettably, most copyright laws may not be sufficiently broad enough to cover situations where the creator is AI.

An intriguing case study in the US revolves around the comic book titled “Zarya of the Dawon” where the images were AI-generated. The author initially sought protection and registration of her comic book with the Copyright Office without disclosing that the images were AI-generated, and the Copyright Office approved the request. However, upon discovering that the images were AI-generated, the Copyright Office then revoked the original decision, explaining that while the written contents of the comic will be protected by copyright, the AI-generated pictures in the comic would not receive copyright protection because those AI-generated pictures were not the product of human authorship. This case is not the first instance where the US has explicitly stated that human authorship is a mandatory requirement for copyright works. In another case, an attempt to copyright an AI-generated image titled “A Recent Entrance to Paradise” was rejected by the US federal court, where the US District Court for the District of Columbia emphatically declared that works generated by AI were ineligible for copyright protection because ‘human authorship is a bedrock requirement for copyright’.

Closer to home, however, copyright treatment of AI-generated work in Malaysia is actually somewhat less certain. Section 10 of the Copyright Act 1978 (“CA 1978”) provides 3 conditions for work to be qualified for copyright protection. The first of such conditions is that the author of the work has to be a qualified person. The crucial question here is: What constitutes a qualified person? Under the CA 1978, a qualified person is limited to an individual or body corporate in Malaysia. Unfortunately, the definition of a qualified person does not seem to be extended to AI, and as such an AI-generated work cannot fulfil this condition. That being said, AI-generated work may be able to fulfil the second and the third conditions under Section 10, which are “first publication of the work in Malaysia” and “made in Malaysia”. According to the Malaysian case Chuah Aik King v Keydonesoft Sdn Bhd [2018] 10 CLJ, a work qualifies for copyright protection as long as it fulfils any one of the three alternative requirements under Section 10. What this means is that it is arguable that an AI-generated work that is made in Malaysia or first published in Malaysia can be qualified for copyright protection notwithstanding that it was not created by a Malaysian individual or company.

Be that as it may, even if an AI-generated work is qualified for copyright protection in Malaysia, it may still fail Section 26(1) of the CA 1978, which only confers copyright ownership on the “author” of the work, and “author” in this case is defined as a natural person who has created the work. Of course, an argument can still be made that in the case of AI-generated work, the “author” is the person who provides the prompt to the AI for the generation of corresponding output. The idea is very much similar to a graphic designer creating a graphical work using graphic design software, but it differs as the work is fully generated by AI without human authorship or control at all. It should be noted that there is currently no decided case law to definitively determine whether AI-generated work could be protected by copyright law in Malaysia.
 
Navigating the Gray Area

Notwithstanding the uncertainty in copyright subsistence of AI-generated work, many companies are actually still actively relying on or leveraging AI-generated work to assist in their creative processes. For instance, a photographer might use generative AI to enhance and retouch photographs, while an interior designer will employ generative AI to create synthetic images of artworks for their portfolio. In such scenarios, where the final product is not entirely AI-generated but is produced by humans with the assistance and enhancement of generative AI, we believe that if such work meets the copyright requirements, it could be protected by copyright law.

Nevertheless, there is no one-size-fits-all solution regarding what kind of AI-generated work and to what extent it will be protected by copyright. Therefore, for companies making substantial investments in training their AI, it is advisable to collaborate closely with intellectual property lawyer with a deep understanding of AI to ensure that the work can be adequately protected by copyright law.
 
If you are looking to develop AI tools and have concerns about intellectual property infringement or safeguarding the output, please reach out to our dedicated team of professionals. With a deep understanding of both AI technology and intellectual property law, our lawyers are well-equipped to assist you throughout the entire process, ensuring that your AI-generated work receives the protection it deserves in the rapidly evolving legal landscape.


This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.
 
About the authors
 
Ong Johnson
Partner
Head of Technology Practice Group
Transactions and Dispute Resolution, Technology,
Media & Telecommunications, Intellectual Property,
Fintech, Privacy and Cybersecurity
johnson.ong@hhq.com.my
 
Lo Khai Yi
Partner
Co-Head of Technology Practice Group
Technology, Media & Telecommunications, Intellectual
Property, Corporate/M&A, Projects and Infrastructure,
Privacy and Cybersecurity
Halim Hong & Quek
ky.lo@hhq.com.my