by Katarina Klaric, Principal, Stephens Lawyers & Consultants
Businesses using AI computer systems or technology to generate literary or artistic works such as reports, directories or other compilations, databases, computer software, digital images, designs or plans, are at risk of not having copyright protection.
In Australia, such works will not be protected by copyright where they are AI computer generated and the party claiming copyright is unable to establish that the works originate from a human author or authors exercising sufficient skill and judgement or intellectual effort in the creation or production of the works.
Unlike the United Kingdom, Australia has not amended its Copyright Act to provide specific copyright protection to computer generated works. Under section 9, Copyright, Designs and Patents Act 1988(UK), the author of computer generated literary, dramatic, musical and artistic works is taken to be the person by whom the arrangements necessary for the creation of the work was undertaken.
The issues of copyright protection of computer generated works is not new and has been considered by the Australian courts in a number of cases which are discussed below. What is evident from these cases is that whether or not a particular AI or computer generated work will be copyright protected will depend on the facts of each case. There is no certainty the works will be protected even where a party claiming copyright in the work has expended considerable financial and human resources in producing the work.
With the development of more sophisticated, intelligent and autonomous AI technology or systems capable of undertaking functions undertaken by humans and producing computer generated works, Australia’s copyright laws need to be reviewed. Consideration has to be given to the scope of copyright protection that will be afforded to works which are AI or computer generated and the level of human skill and ingenuity required in the production of such works.
B. Australian Cases involving computer generated works
Data Access Corporation v Powerflex Services Pty Ltd & Ors  HCA 49
The issue of whether copyright protection as a literary work should be afforded to a table generated by a computer program, was first considered in by the High Court of Australia in Data Access Corporation v Powerflex Services Pty Ltd & Ors  HCA 49. In that case, Powerflex argued that it had not infringed copyright in the Dataflex Huffman compression table, because the table was not protected by copyright, having been generated by a computer program which applied the Huffman algorithm to a dataset.
The High Court held that for copyright to subsist in the Dataflex Huffman table, the table must be an original literary work, in that the “work must emanate from a person claiming to be its author, in the sense that he has originated it or brought it into existence and has not copied it from another”[i].
The Dataflex Huffman compression table was created by Mr Casanave, an employee of Dataflex, by writing a computer program which applied the Huffman algorithm to a database file, which contained a representative sample of data for standard data compressions[ii]. The High Court accepted Full Court findings that the Dataflex Huffman compression table constituted an original literary work and was protected by copyright. The High Court held that the Dataflex Huffman compression table emanates from Dataflex as a result of substantial skill and judgement employed by Mr Casanave directed more to writing the program setting out the Huffman algorithm and applying this program to a data sample than to composing the bit strings in the Huffman table, which bit strings were computer generated[iii].
IceTV Pty Ltd v Nine Network Australia Pty Ltd  HCA 14
In IceTV Pty Ltd v Nine Network Australia Pty Ltd  HCA 14, the High Court confirmed that a work will only be protected by copyright if it originates from an individual or individuals who are the authors and a sufficient effort of a literary nature or skill and labour has been expended by one or more of them. In the case of copyright works which are protected as compilations, the authors are the persons who gather or organise the collection of material and who select, order or arrange its fixation in a material form[iv].
Telstra Corporation Limited v Phone Directories Company Pty Ltd.  FCAFC 149
The issues of the subsistence of copyright in telephone directories which were compiled with a combination of computer automated and human effort was considered by the Full Court of the Federal Court of Australia in Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCAFC 149. Phone Directories contended that copyright did not subsist in the Telstra/Sensis telephone directories because the directories were not compiled by individuals engaged to facilitate the process, but by a computerised process of storing, selecting, ordering and arranging the data to produce the directories in the form that they were published.
This contention was accepted by the Court and Telstra/Sensis was denied copyright protection for their directories[v]. The computer software systems used in the production of the directories were not created by employees of Telstra/Sensis but had been purchased by them, except in a few cases where the software had been created by their employees[vi]. No claim was made for the copyright in the database of the computer system or the software that was used in its operation for the production of the directories[vii].
C. Practical Considerations For Copyright Protection of AI or Computer Generated Works
Businesses seeking copyright protection in AI or computer generated works will need to have documentation or other evidence that establishes:-
1. The work is original in that it originates or emanates from an author or authors employed by the business.
A work will not be copyright protected if there is no human author or authors involved in its production in a material form.
2. Where the work is produced by a combination of AI automated computer systems with human involvement, the human contribution to the production of the work in material form is of overwhelming significance when compared with contribution of the AI system.
If the employees are merely involved in the automation process or control of the AI technology or computer system and do not make a sufficient contribution to the production of the work in material form by way of intellectual effort or effort of a literary nature, copyright will not subsist in the work.
If employees are involved in the creation of computer programs or a compilation of computer programs that are used to create the works in material form, such computer programs and resulting works will be protected if the evidence establishes that intellectual effort or skill or judgement was involved in their creation.
3. In the case of works that are compilations, that the authors were involved in the acts of selecting, ordering and arranging the information to create the compilation in material form.
If all these acts are automated and undertaken by a computer process then copyright will not subsist in the compilation which is computer generated because there is no human authorship.
If steps of selection, ordering and arrangement are undertaken by humans then there will be human authorship of the compilation and copyright will subsist if sufficient intellectual effort or skill or judgment is involved in the production of the compilation in material form.
If the compilation in material form is created by combination AI automation and human involvement, the compilation will not be protected by copyright where the human contribution is not of overwhelming significance.
Business should implement processes and systems for the proper and accurate documenting of the creation or production of works in which they claim copyright protection including a description of the work, the contribution made by each author, relevant dates and detail of any AI contribution in the production of the work. Regular audits of the processes and systems should be undertaken to ensure compliance.
Copyright material is a valuable asset of a business. However, business may not be able claim and enforce copyright protection in material where human authorship of that material cannot be established, particularly if it has been generated using AI technology. This is a complex area and business should seek expert advice.
Authored by Katarina Klaric
This article is not intended to be a substitute for obtaining legal advice.
© Stephens Lawyers & Consultants. August 2019
For further information contact:
Stephens Lawyers & Consultants
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Melbourne VIC 3000
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[i] Data Access Corporation v Powerflex Services & Ors HCA 49 at 
[ii] Ibid, at 
[iii] Ibid, at 
[iv] IceTV Pty Ltd v Nine Network Australia Pty Ltd HCA 14 at , 
[v] Telstra Corporation Limited v Phone Directories Company Pty Ltd.  FCAFC 149 at  and  (Keane CJ); - (Perram J.); (Yates)
[vi] Ibid at 
[vii] Ibid at ,