Ben Coogan and Sashank Krishnamoorthy

Artificial Intelligence – the Copyright Act cannot keep up

Ben Coogan and Sashank Krishnamoorthy

26 June 2018


The Copyright Act 1968 (Cth) (Act) is facing a challenge keeping up with the increasing prevalence and capabilities of Artificial Intelligence (AI). Recently, Google released their new AI powered digital camera called Google Clips.1 This device deviates from the traditional method of taking photos. It contains a built-in AI that autonomously snaps pictures of the richest moments of life (or otherwise whatever Google Clips considers important). AI has become widely accepted in a variety of industries and has become essential for companies in attempting to attain a competitive edge over their competitors.


Due to advancements in AI growing exponentially, the traditional concepts of authorship as prescribed in the Act are being tested. Disputes over authorship will only become more frequent with the emergence of more sophisticated forms of AI that have the ability to create original works (literary, dramatic, musical and artistic) without substantial human involvement.

This concept has already become reality, some examples of AI that have the potential to wholly create original works include:

  • In Japan, the Future University Hakodate submitted a short novel partly created by AI software entitled ‘The Day a Computer Writes a Novel’.2 The team of researchers deconstructed a novel into words and phrases and set up a template to guide the program. Subsequently the software came up with the actual text which comprised 20% of the overall novel. Despite the presence of considerable human involvement, it is only a matter of time before AI will be able to autonomously emulate literary works to human standards.
  • Facebook AI Research, Rutgers University and the College of Charleston developed an AI system capable of generating art.3 The researchers developed a computational system that generated artwork without the direct involvement of a human artist in the creation process. As a learning mechanism, the software was trained by utilising 81,449 paintings ranging from the 15th to 20th century. Human observers were engaged and requested to distinguish between artwork created by contemporary artists and art generated by the AI. The results of the study highlighted that observers were unable to differentiate between the two forms of artwork which were on display at reputed art fairs!

 Authorship in the Copyright Act

 Section 32 of the Act sets out that Copyright subsists in original literary, dramatic, musical or artistic works that are unpublished and of which the author was a qualified person. A qualified person is an Australian citizen or a person resident in Australia.4

The parameters of authorship have been subject to some guidance from the courts. The overarching consideration appears to revolve around the exertion of skill, labour and intellectual effort by a human author.5

The application of the existing principle is exemplified in Telstra Corporation Limited v Phone Directories Pty Ltd.6 The issue in this case was whether copyright subsisted in White Pages and Yellow Pages directories that were published by Telstra. Telstra contended that the directories were compiled by employees who exerted independent intellectual effort throughout the creation of the directories.

The Federal Court rejected this argument and held that there were several stages in the compilation procedure which was purely a computerised process as opposed to effort being applied by individuals. Accordingly, Gordon J noted that

‘there are substantial parts of the directories that do not have human authors….are automated to the extent that human involvement is minor….or the authors cannot be ascertained’.7

 Applying these traditional principles in the context of computer generated works exposes the arguably outdated nature of the existing framework and is a precarious precedent with the emergence of AI having the capability to create works without human intervention.

 The way moving forward

 Other jurisdictions such as the United Kingdom and New Zealand have amended their Copyright legislation to keep up with the changing landscape of artificial intelligence. The author for computer generated works in those countries is considered to be the person ‘by whom the arrangement necessary for the creation of the work are undertaken’.8

In March 2018, the Department of Communications and the Arts published a paper entitled “Copyright Modernisation Consultation” (marking 50 years since the Copyright Act was enacted) concerning the modernisation of the Copyright Act. Interestingly, the consultation paper does not contain any direct references to computer generated works and authorship. However, it is only a matter of time before Parliament will need to update the Act to modernise the law surrounding computer generated works and authorship.

Watch this AI space!



1 Dave Paresh, ‘Google’s Clips camera is latest effort to bring AI into home gadgets’ (28 February 2018) Thomson Reuters <>.

2 David Nield, ‘A Novel Written by AI Passes the First Round in a Japanese Literary Competition’ (24 March 2016) Science Alert <>.

3 Ahmed Elgammal et al, ‘CAN: Creative Adversarial Networks Generating “Art” by Learning About Styles and Deviating from Style Norms’ (2017), Rutgers University, Facebook AI Research and College of Charleson.

4 Copyright Act 1968 (Cth) s 32(4).

5 Alexandra George, “Reforming Australia’s Copyright Law: An Opportunity to Address the Issues of Authorship and Originality” (2014) 37(3) University of New South Wales Law Journal 939.

6 Telstra Corporation Limited v Phone Directories Co Pty Ltd (2010) 264 ALR 617.

7 Ibid 335.

8 Copyright Act 1994 (NZ) s5(2)(b); Copyright, Designs and Patents Act 1988 (UK) c 1, s 9(3).