There has been a lot of excitement in the news this week about a recent US judgement about the the ownership of artwork created by artificial intelligence. But is it the first sign of divergence between the USA and UK perspectives on Artificial Intelligence?

As previously covered in this article, we now have a US District Court ruling that says - in the USA - there needs to be some element of "human involvement" and "ultimate creative control" for copyright to vest in a new work of art. It also held that an artificial intelligence is not capable of being an 'author' of copyright or of owning copyright itself. It's so exciting that even the Hollywood Reporter is running the story.

But, despite all the buzz, it's worth remembering that America isn't the world and that we don't all follow the same law; even if we speak roughly the same language. So what's the position in the United Kingdom (well, England and Wales, at least)?

Fascinatingly, the UK is in many ways well ahead of the curve when it comes to thinking about Artificial Intelligence in the context of intellectual property. In fact, we have one of the few legal systems in the world that features specific law designed to regulate the ownership of works generated by computers, which was written with AI very specifically in mind.

You might find it hard to believe, but way back in 1987 the then Secretary of State for Trade and Industry (in the form of Lord Young of Graffham) rose to his feet in the House of Lords and asked his fellow peers to approve the law that we now know and love as the Copyright, Designs and Patents Act 1988 (the "CDPA") on the basis that it was 'far-sighted' enough to think about the implications of AI. As part of persuading the Upper House he reassured them that "the Bill makes provision to ascribe authorship in cases of so-called computer generated works. We believe this to be the first copyright legislation anywhere in the world which attempts to deal specifically with the advent of artificial intelligence". Those thoughts were echoed by the Earl of Stockton (I am not making this up) who congratulated the government of the day on the drafting of the bill and said that he felt that it "will allow investment in artificial intelligence systems, in the future, to be made with confidence". It was all so riveting that Hansard records that the House of Lords stayed in the chamber until 7.40pm on a cold November night debating it all.

Visionary and forward thinking stuff (this was just two years after the original Terminator film was released). But what does that law actually say?

Well, in Section 9(3) of the CDPA it says: "In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken".

Which, to boil that down into plain English, means that there's nothing in UK Law that specifically requires the kind of 'human involvement' or 'ultimate creative control' that the US Courts have just held needs to exist for a work to attract copyright protection in the USA.

Rather, on this side of the Atlantic, the position is subtly different with there being nothing in the statute (which was explicitly designed with AI in mind) that requires human input into the act of creation itself. Instead we have a regime which both anticipates that copyright will vest in computer-generated works and which then serves to grant ownership of that copyright to the person who arranged the computer system to create them. There's an open question to be asked about who should be regarded as having made those 'arrangements' in the context of AI systems (the end-user who submits prompts, or the creator who originally built the system) but relatively little scope to argue that no copyright arises at all.

The UK is, in other words, a jurisdiction which suddenly starts to look slightly more AI-friendly than the USA. With an apparently greater willingness to find copyright in AI generated works, and a legal regime that makes it easier for AI operators to be granted ownership of those works as they arise.

That might sound academic but it's the difference between being able to monetise works by using your rights as a copyright owner to protect them from being copied, redistributed and modified and, well, not having any right to restrict those acts at all.

In other words if you are an organisation that sees AI generated imagery, video or audio content as a key part of your future growth strategy, those two directions of travel should probably be something that factors into your thinking about IP portfolio management. The UK's apparent willingness to find - and allow the protection of - copyright in AI works suddenly starts to really justify it as a place to base developers of and investment in AI, so as to enable you to bring those works under the umbrella of UK intellectual property law coverage and allow you to build a commercialisation strategy around them.

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