Who owns AI-created art?

Computer-generated works are defined as ones "generated by a computer in circumstances such that there is no human author of the work". Let’s park, for a moment, whether it’s realistic to think that true art can be created without the involvement of a human… if we imagine, for a moment that an artistic work can be computer generated then the Copyright, Designs and Patents Act 1988 states that "the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken".

However, how do we set out who undertook the necessary arrangements for the creation of an AI generated artistic work? Is it the person that organised or funded the project? That arranged for the coding to be done? That did the coding or that taught the coder? Or that chose the inputs and settings for the creation of work?

So, how can we break this down to understand copyright in a world of AI?

First we need to ask whether it is legitimate to ask whether a machine itself could ever be considered the author and/or own any legal rights, in the same way that humans and corporations can own rights and enforce them.

The Act only provides for 'persons' to be authors, not machines. The human artist will likely be an author of works which were the expression of his or her own intellectual creation (EU test) or skill, labour and judgment (traditional UK test). The machine itself cannot own any rights.

Under section 10, a 'work of joint authorship' means "a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors". Whilst AI and humans will increasingly work more closely together over time, it seems difficult to envisage the court ruling that the machine (which is not a legal entity) and the human were collaborating.

Second, who is the arranger? If the machine cannot own any rights and there are occasions when there isn’t a ‘joint’ artist to devolve rights to then the rights are owned by the arranger (as discussed above). The arranger is most likely to be at least the person (presumably the artist) who conceived of and organised the project (rather than the programmer and/or artist's assistants).

Finally, how long does it last? If concerning human authored artistic work, the term of copyright protection is generally 70 years after the death of the author: section 12(2). Where the work is computer generated with no human author, the term is 50 years: section 12(7). After 50 years, such a work would enter the public domain meaning it can be freely copied.

However, if copyright does not subsist (say because there is no human author and the AOIC originality test is not therefore satisfied), then there would be no copyright prohibition on people or machines copying and otherwise exploiting such works. Millions or even billions of AI generated works could then be available to copy for free.