Code and Creation: The Rise of Machine-Made Art
In 2023, an AI-generated image won a prestigious art competition, igniting a controversy that is now burning through the foundations of copyright law.1 This development has raised profound questions about creativity, intellectual property, and the role of technology in the arts.
For context, artworks generated or “imagined” using artificial intelligence, commonly known as “AI Art”, are those usually created through automated learning models similar to the neural networks of humans. These AI systems analyze and pour through vast datasets of images, learn artistic styles, and generate arguably original compositions based on whatever prompts a user desires. An example is DALL-E 2, a neural network that generates images from phrases2.
Today, the rapid evolution of AI art has been driven by advancements in deep learning, such as GANs (Generative Adversarial Networks) and diffusion models, which have significantly improved AI’s ability to replicate human creativity. Initially, AIgenerated art merely involved basic alterations and edits, but today, AI can produce hyper-realistic images, unique digital paintings, and even interactive or animated artworks. Take for example ChatGPT and MetaAI’s image generator models where all you have to do is ask for the AI model to imagine a scene and even offer alterations post generation. Mobile phone applications such as PhotolabAI, Photo Room, and Face App even allows you to seamlessly swap a subject’s face with that of a prominent individual or character, creating an uncanny realism. Recently, with Adobe Photoshop’s AI integration, graphic artists can effortlessly add elements like smoke, sunlight, and other elemental effects, including adding a background to an otherwise plain photograph as if the subject was really taken in such environment. Needless to say, while this transformation and technological advancements have revolutionized digital creativity, these however raised questions about authorship, copyright, and the role of human artists in an AI-assisted world.
The Problem
With the foregoing, we are now led to the core issue, which is the glaring inadequacy of existing copyright law, originally designed for human-created works, to fully address the complexities of AI-generated content. This policy gap inevitably leads us to a legal and ethical crisis regarding authorship, ownership, and the very definition of creativity. Thus, this requires urgent reforms to copyright law and the development of a new legal framework that can properly account for the unique challenges by AI-generated content.
Authorship, Ownership, and Creation of Art in the Status Quo
Before we dive into the complexities or lack thereof with respect to AI Art vis-à-vis copyright laws, let us re-establish our rudimentary knowledge in basic intellectual property rights principles. Here in the Philippines, for us to begin understanding copyright law, more specifically in the aspects of authorship, originality, and creation of art or artworks, we should set our sights towards the Intellectual Property Code of the Philippines3 (IPC).
Talking about ownership of artistic works, Section 178.1 of the IPC states that “subject to the provisions of this Code, the author of a literary or artistic work is the owner of the copyright therein.” This is further classified into (a) works created during employment; (b) commissioned works; and (c) those under joint authorship.
For those works created in the course of employment, Section 178.3 of the IPC provides that states that works created by an author for an employer in the course of employment are presumed to be owned by the employer, unless there is an agreement stating otherwise. However, as a form of protection, the creator’s moral rights as provided for under Article 193 of the IPC, remain with them, meaning they still have the right to claim authorship and object to any modifications that could harm their reputation.
As to commissioned works, Section 178.4 simply provides that if a work is commissioned by a person or entity, the copyright belongs to the creator, unless there is a written agreement transferring ownership to the commissioner. This means that if an artist is hired to produce content they retain copyright ownership and enjoy all the protection thereon as provided for under Sections 177 which provides for the rights to reproduce, distribute, publicly display, and create derivative works, and Section 193 of the IPC as earlier discussed. The only exception here is when the artist explicitly sign over their rights. Stated otherwise, Section 178.4 provides protection to artists, ensuring they have control over their work unless otherwise agreed upon in writing.
For those artistic works created by joint authorship or that which was created by two or more artists, in this context, while the IPC did not explicitly detail the sharing of ownership per se, the IPC recognizes joint authorship. In this regard, the basic principles of co-ownership under the New Civil Code4, would apply, meaning to say that co-authors share rights in the work.
With respect to ownership, and apart from those provided for by Articles 177 and 193 of the IPC, so long as you qualify for a copyright under the law, it further provides protection in providing that the duration of the copyright shall be during the lifetime of the creator plus fifty (50) years thereafter.5
Having known the genesis of copyrights, which is generally upon the creation of the copyrightable work, we are faced with another important concept. The concept of originality. Originality is indispensable in order to fall within the protection of copyright laws. In fact, the IPC tacitly tells us that a work must be independently created. While the terms “originality” or “original” are not explicitly and fully defined, the law makes it clear that copies of existing works are not protected. Section 172.1 of the IPC lists the works that are copyrightable, and the implication of that list, is that the works must be original. In fact, Section 175 enumerates those which are not protected by copyright such as any idea, procedure, system, method or operation, concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated or embodied in a work. This clearly delineates the difference between uncopyrightable ideas and copyrightable expressions. To be sure, The IPC follows the universal copyright doctrine that ideas are free for all, but their specific expression is protected. This safeguards creators’ rights while promoting innovation and knowledge-sharing.
A Constant Catch-Up: Copyright Law and Technological Advancements
Copyright law has perpetually found itself in a reactive dance with technological innovation. From the advent of digital music to the complexities of artificial intelligence, the law strives to maintain relevance, often finding itself trailing behind the rapid pace of progress. The digital revolution, for instance, dramatically altered the landscape of music consumption. The emergence of MP3s and streaming services necessitated legal adaptations like the Digital Millennium Copyright Act (DMCA), attempting to curb online piracy and establish licensing frameworks.
However, the sheer scale of digital distribution and the inherent ease of replication through file sharing applications and websites such as Bit Torrent, Mu Torrent, and others of the like, it posed unprecedented enforcement challenges, revealing the limitations of traditional copyright paradigms. Similarly, the practice of sampling in music, where existing recordings are incorporated into new works like Kygo’s remix of Whitney Houston’s “Higher Love” or David Guetta’s “Blue” featuring Sia, which was an iteration of Eiffel 65’s “Blue (Da Ba Dee)”, have all tested the boundaries of copyright. While legal precedents and licensing agreements have emerged, the determination of “fair use” remains a contentious issue, particularly in an era where vast libraries of music are readily accessible. Thus, measures like the DMCA transformed from preventing piracy into curbing the rights of users to fair-use, which creates a chilling effect against freedom of expression.
The internet itself has fundamentally reshaped the dissemination of copyrighted material. Copyright law has extended its reach to encompass online content, but the global and decentralized nature of the web presents formidable enforcement hurdles. User-generated content and social media platforms further blur the lines of copyright ownership, demanding a nuanced approach that balances protection with freedom of expression. As these complex issues continue to evolve, policy-makers must strive to uphold the core principles of copyright law while adapting to the realities of the digital age.
More recently, the rise of artificial intelligence has introduced a new frontier of legal uncertainty. The creation of AI-generated works and the use of copyrighted material for AI training raise fundamental questions about authorship and ownership. While legal systems are beginning to grapple with these issues, the rapid evolution of AI technology continues to outpace regulatory frameworks. Ultimately, copyright law’s ability to effectively adapt to technological advancements hinges on its capacity to strike a delicate balance between protecting the rights of creators and fostering innovation in an ever-evolving digital world.
The rise of artificial intelligence has introduced a new frontier of legal uncertainty that poses significant challenges for copyright law. As AI systems become increasingly sophisticated in generating original content, the question of authorship and ownership has become increasingly complex. On one hand, AI-generated works may not be considered the product of human creativity, potentially undermining the traditional notion of authorship. On the other hand, the training of AI models often relies on the use of copyrighted material, raising concerns about the unauthorized exploitation of protected works.
Legal systems around the world are grappling with these issues, but the rapid pace of technological advancements continues to outpace regulatory frameworks. In some cases, courts have struggled to determine whether AI-generated works are eligible for copyright protection, or whether the use of copyrighted data for AI training constitutes fair use or infringement. Ultimately, the ability of copyright law to effectively adapt to these technological changes will depend on its capacity to strike a delicate balance. Policymakers and legal experts must carefully consider the rights of creators, the need to foster innovation, and the public interest in accessing and utilizing AI-powered technologies. This will require a nuanced approach that takes into account the unique challenges posed by AI, while ensuring that the fundamental principles of copyright law remain relevant and effective in the digital age.6
AI-Generated Creations and Copyright: Navigating Legal Gray Areas
The rise of artificial intelligence (AI) in creative fields has raised complex legal questions regarding authorship, originality, and ownership. While it may be conceded that copyright laws worldwide generally require human authorship, AI-generated works pose a great challenge against traditional legal frameworks. This has been manifested in different jurisdictions have taken varying approaches, leading to legal uncertainty.
In answering the question who the author of an AI generated art is, whether it is the AI developer, the user or the AI itself, copyright law traditionally grants rights to human creators. However, with the addition of AI-generated content comes into play, the principle is much more complicated than we would like it to be, and different jurisdictions adopt varying positions. Insofar as the Philippines is concerned, and under the IPC, copyright protection is granted to original intellectual creations in the literary and artistic domain. This therefore implies that only natural persons can be authors, as it refers to the rights of “the author” and does not mention non-human creators and AI-generated works, created without human intervention, are not eligible for copyright protection. As of now, the Supreme Court has not ruled on cases specifically addressing the ownership of AI-generated works. However, the Intellectual Property Office of the Philippines (IPOPHL) has acknowledged the challenges posed by AI in the realm of intellectual property. IPOPHL emphasizes the need for ongoing evaluation of legal frameworks to address the complexities arising from AI-generated content.
Juxtaposed with other jurisdictions, in the United States, for example, the U.S. Copyright Office (USCO) maintains that AI-generated works are not copyrightable unless they involve significant human input. This has been enunciated in the case of Thaler v. Perlmutter (2023)7, the court ruled that AI-generated art without human intervention cannot receive copyright protection. In China, fully autonomous AI works are not copyrightable. The National Copyright Administration of China (NCAC) ruled in 2023 that AI-generated content may be protected if it involves original human creativity.
Having a grasp of the concept of “originality”, the conundrum arises when it comes to AI generated works. We know, and basic copyright law requires originality. However, we know that AI operates by analyzing and replicating existing datasets. So where do we draw the line? In Pacita Habana, et al. v. Felicidad C. Robles, et al.8 the Philippine Supreme Court discussed copyright infringement concerning educational books. Although it delves deeply into “substantial reproduction,” it inherently addresses the necessity of an “original work” for copyright protection to exist. In this case, the court’s examination of whether portions of a book were “lifted, copied, plagiarized” directly involves the concept of whether the material was genuinely the author’s original creation. While the case also discusses whether or not the copied portions were from common sources, and therefore not subject to copyright, this discussion also touches on the concept of what makes something original. If the work is simply a copy of a common source, then it lacks originality. In the U.S., its Supreme Court, in Feist Publications, Inc. v. Rural Telephone Service Co. (1991)9, ruled that originality requires minimal creativity and independent human authorship. Since AI lacks human intent, fully AI-generated works may not qualify. Needless to state, without clear copyright protection, AI-generated works face ownership and licensing challenges.
The Legal and Ethical Crossroads of AI-Generated Art
All told, there is no doubt that the rapid rise of artificial intelligence in the creative sphere has put us into an inevitable legal and ethical crossroads that copyright law is illequipped to navigate. As AI-generated art becomes more sophisticated, more advanced, more “human-like”, it raises profound questions about authorship, ownership, and the definition of creativity itself.
Copyright laws, designed to protect human intellectual labor, currently struggle to accommodate AI-assisted works. In jurisdictions like the Philippines, the Intellectual Property Code (IPC) grants copyright protection exclusively to natural persons, leaving fully autonomous AI creations in legal limbo. This legal uncertainty presents pressing challenges that demand immediate attention. Without clear regulations, AI-generated content may be freely exploited, potentially undermining human artists and content creators. Moreover, the ease with which AI replicates artistic styles raises ethical concerns about plagiarism and the unauthorized use of existing copyrighted works in AI training datasets.
As AI continues to push the boundaries of creative expression, the future of art and copyright depends on proactive legal adaptation. To navigate this uncharted territory, legislative reforms must be taken. Copyright laws must be amended to define AI-assisted authorship and establish clear protections. So also, Ethical AI use Regulations incorporating safeguards against deepfakes, plagiarism, and unauthorized AI reproductions must be immediately formulated and adopted. In the same vein, Fair Ownership Standards ensuring that human artists are credited and compensated when their works are used in AI training datasets must be given attention. Public Awareness and Advocacy must also be given premium, and that legal professionals, artists, and policymakers should mandatorily be educated about AI’s impact on intellectual property rights.
Lastly, but most importantly, in view of the varying principles regarding the treatment of AI art, there must be a strong international cooperation in order to develop harmonized global standards for AI-generated works to prevent jurisdictional inconsistencies.
The future of creativity will not be defined by AI alone, but by how societies choose to regulate, protect, and adapt to its influence. Will copyright law evolve to accommodate machine-generated content, or will human creativity remain the sole pillar of artistic authorship? Will the concept of “originality” and the concomitant ownership of original works be forever altered to address the fast-rising trend of utilizing AI tools. The answer lies in the urgent need to rethink the intersection of technology, law, and artistic integrity in the digital age.
1 https://www.nytimes.com/2022/09/02/technology/ai-artificial-intelligence-artists.html
2 https://mediaengagement.org/research/the-ethics-of-ai-art/
3 Republic Act No. 8293
4 Articles 484 to 501
5 Section 213, IPC
6 Dzuong, Jocelyn. “Uncertain Boundaries: Multidisciplinary Approaches to Copyright Issues in Generative AI.” March 31, 2024 https://arxiv.org/abs/2404.08221v1.
7 No. 22-CV-384-1564-BAH
8 G.R. No. 131522, July 19, 1999
9 499 US 340 (1991)
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. The discussion on copyright law and AI-generated works is general in nature and may not apply to specific legal situations. For legal advice tailored to your circumstances, consult a qualified attorney.
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Author/s: Art Diaz