AI and Copyright

AI and Copyright

The world of intellectual property is grappling with a new frontier: artificial intelligence (AI)-generated art.  A recent case in China sheds light on how courts are approaching the question of copyright protection for these creations.  But how would this play out in New Zealand?

The Reported Chinese Case: Li v. Liu (AI-Generated Image)

While the specific decision does not seem to be publicly available, reports online indicate that a plaintiff Li sued a blogger Liu over the latter’s use of an image posted online by Li.  Li had used Stable Diffusion, a text-to-image AI platform, to create the image.  The Beijing Internet Court held that Li’s creative input through prompts, parameter adjustments, and overall artistic direction, was sufficient to afford them copyright protection over the image.

The court's decision reportedly hinged on Li’s demonstration of originality through their creative choices.  Note however that there does not seem to have been any consideration of whether the use of a platform such as Stable Diffusion, which has been trained by using (copying) artists’ works without permission, constitutes infringement of those works or undermines the originality that is necessary for copyright protection.  Cases around the world are exploring that issue as artists and writers sue the various platforms, so we will watch with interest.

New Zealand Copyright Act 1994: A Different Landscape

New Zealand's copyright law doesn't explicitly address AI-generated works (as you would expect given it was passed in 1994 and had its last major update in 2008). However, section 5(2)(a) of the Act is particularly relevant in this context.  The section deals with the definition of "author" in relation to computer-generated works.  Let's break it down.

Section 5(2)(a) of the Copyright Act states that for "a literary, dramatic, musical, or artistic work that is computer-generated," the author is considered to be "the person by whom the arrangements necessary for the creation of the work are undertaken."

This section offers a potential pathway for copyright protection of AI art in New Zealand.  Here's how it might apply:

Author" of an AI work: If the court interprets "the person by whom the arrangements necessary for the creation of the work are undertaken" broadly, the person who uses Stable Diffusion could be considered the author.  Their selection of prompts, parameter adjustments, and overall creative direction would be seen as the "arrangements" that led to the final image.

Originality: However, section 5(2)(a) doesn't address the crucial element of originality. Even if the plaintiff is considered the author, the work itself must still be original to be copyrightable under the section 14 of the Act. Here, the level and nature of the plaintiff's creative input using a platform such as Stable Diffusion would be crucial.  Did their choices result in an original artistic expression that goes beyond the mere output capabilities of the AI platform?  Also, as noted above, the questions of whether outputs from such platforms are “copies” of the underlying training materials and whether their use constitutes infringement will be central, given the specific references to those issues in section 14(2).

The copyright implications of AI art are fascinating.  In our view, the Chinese decision referred to above gives useful guidance as to the dividing line between unprotectable copying and copyright protection.  Each case will no doubt turn on how much creativity and originality is applied.

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