I. Introduction

A - Scope:

The World Intellectual Property Organization (WIPO) defines AI as ‘a discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence, with limited or no human intervention.’ Copyright must subsist in expression written by AI in order for the Copyright Act 1968 (Cth) (‘the Act’) to ‘protect’ that expression. A majority of the issues concerning copyright protection for AI pertain to this threshold issue. The scope of this paper is accordingly confined to subsistence of copyright and excludes any substantial reference to other aspects like infringement and defences. The main requirement for subsistence that this paper is concerned with is originality. It is also important to note the discussion is focused on Part III ‘works’ at the exclusion of Part IV ‘subject matter’. The following section provides an overview of the seminal Australian cases that are most applicable to the topic. Part III of the paper proceeds to discuss why protection should be afforded to AI-created works and Part IV suggests how such protection can be granted.

B - Nomenclature:

The Issues Paper maker further reference to the terms ‘AI-generated’ and ‘AI-assisted’ outputs. In this context, ‘output’ can be used interchangeably with ‘expression’. ‘AI-generated’ refers to ‘the generation of an output by AI without human intervention’. On the other hand, ‘AI-assisted’ refers to output ‘that [is] generated with material human intervention and/or direction.’ The difference between these two terms will bear importance later. For present purposes, it is sufficient to note the distinction lies in the degree of human intervention in the creation of the output. ‘AI-created’ is used as an umbrella term to encapsulate both categories of assisted and generated works. Similarly, ‘developer’ should be taken to mean the person(s) who writes the source code that predicates an AI.

II. The [D]evolution of Originality

A - ‘Skill and Labour’ in Desktop Marketing

The main issue was whether compilations of factual information – Telstra’s White Pages and Yellow Pages telephone directories – were sufficiently original for copyright to subsist in them. The first instance decision that the compilations were original was upheld because the compiler ‘exercised skill, judgment or knowledge’, undertook ‘substantial labour or incurred substantial expense’ and that labour and expense exceeded ‘a minimum threshold’.

B - ‘Independent Intellectual Effort’ in IceTV

IceTV cast doubt on the propositions enunciated in Desktop Marketing. The case concerned television program schedules created by Nine and allegations that IceTV had reproduced a substantial part of them. The Court cautioned that an overemphasis on the kind of skill and labour expended by an author ‘can lead to error’ as it detracts from the requirement of the Act that ‘the work originates with an author or joint authors from some independent intellectual effort’ (‘IIE’). Applying this standard of originality, because the authors had little choice in the particular expression of the schedules, IceTV did not substantially reproduce them as there was no subsistence.