Who owns the Copyright in AI-generated work?｜Behind the Wig

Sebastian Hughes
Barrister

From its inception under the Statute of Anne enacted in England in 1710, copyright law has proved to be remarkably adaptable and resilient. Intended originally only to address “printed books”, the act confirmed that the “right to copy” and print books would automatically be given to the authors of books (initially, for a 14-year period). Copyright protection has since been extended to the authors of dramatic, musical and artistic works. It has also been extended to “subject matter other than works” (sound recordings, films, broadcasts, cable programmes and published editions). The duration of copyright protection has also increased over the years (life of the author plus 50 years in Hong Kong, even longer in other jurisdictions).

Copyright law has been able to evolve over time as different technologies have been created. But the concept of authorship has remained central. Hence, in the case of literary, dramatic, musical and artistic works, the author is defined as the person who creates it. In the case of computer-generated works, the author is taken to be the person “by whom the arrangements necessary for the creation of the work are undertaken”.

The interplay between the economic value of copyright and the need to protect individual human creative endeavour has also been present from the outset. Hence the “idea/expression dichotomy” which has developed as a central tenet of copyright law. The distinction is this. There is no copyright protection for an idea or a concept. It is the expression of an idea, through creative endeavour (metaphorically speaking, “blood, sweat and tears”) which gives rise to original creative works capable of copyright protection. And the more effort expended, the stronger the copyright protection afforded. Contrast, for example, a rough sketch with a finished piece of artwork; or a simple paragraph with a complete novel, poem or academic treatise.

Illustration created using AI tools.

The exponential rise in the use of AI has placed these issues firmly in the spotlight. First, AI-generated material cannot of itself give rise to any copyright, as copyright requires a human author. Secondly, prompts given by a (human) AI user are unlikely to give rise to copyright in the finished product compiled or created by AI. The prompts are likely to be treated, under copyright law, merely as ideas or concepts, whereas the expression of those ideas in a finished work capable of copyright protection is undertaken, not by the human user, but by AI.

What this means, on a day-to-day basis (and apart from the ethical and other issues which arise through failure to review AI-generated products and correct or remove hallucinations) is that, the more the person using AI reviews, corrects, refines, reorganises and rewords the end product, the more likely the finished product will be protectible as an original copyright work. We may well also see further amendments to copyright legislation to ensure that AI-generated work is properly addressed from a copyright authorship, ownership and indeed infringement perspective. The existing definition of authorship in the context of computer-generated works is unlikely to apply to works generated using AI.

Copyright law has always been able to adapt to and embrace new technology. It will do so with AI, but it will be interesting to see what steps the legislature and the courts take in the meantime to tackle this interesting issue.

Mr. Sebastian Hughes is a Council Member of the Hong Kong Bar Association and a Member of its Intellectual Property Committee and its Standing Committees on Mainland Affairs and on Welfare and Sports. He practises as a barrister and arbitrator. His practice focuses on intellectual property, commercial, cryptocurrency, white collar fraud, insolvency, company, insurance, employment, matrimonial finance, and costs/taxation matters.

Sebastian Hughes
Barrister

Photo: Hong Kong Bar Association

Behind the Wig is a weekly legal column written by practicing barristers specialising in criminal, civil, and commercial law.  Drawing on their legal expertise and practical experience, or sharing their observations and insights as barristers, they analyse social issues, encourage readers to interpret everyday matters through a legal mindset, and promote the spirit of the rule of law.　

The views expressed in this article are the author’s own and do not reflect TVB’s editorial stance.