“The upcoming Agents4Science conference raises interesting questions about the authorship and ownership of AI generated works, and the role played by copyright law in the protection and incentivization of human cultural endeavour.
Our current law, in both the US and Australia, does not recognise human authorship of AI-generated works, even when those works are the result of complex, highly specialised sets of human prompts, Should our law be adapted to extend to AI-generated works where those works (peer-reviewed scientific research papers are a great example) show a significant degree of human input and control?
Organisers of Agents4Science – mostly academics based at Stanford University (and still human, at least for now!) – have put out a call for papers featuring ‘AI-generated computational works that advance scientific discovery’. The conference is wholly online, and free to attend. Submitted papers need to be ‘primarily authored by AI systems’, which are ‘expected to lead the hypothesis generation, experimentation, and writing processes’. The AI must be listed as the sole first author of each paper. Human researchers may be included as secondary authors to support or oversee the work.
Let’s be clear: excluding human authors in this fashion excludes the very essence of copyright, as currently understood in Australia and the US. This is now settled law, but it was not always so. A spate of cases in the early 2000s focused on authorship and ownership of an earlier generation of machine-generated works, including telephone directories (Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112) and TV guides (IceTV v Nine Network Australia (2009) 239 CLR 458). Until the IceTV case reached the High Court in 2009, it was unclear in Australia whether or not human overseers could claim copyright in such works. The High Court unanimously and emphatically ruled that they could not.
In coming to this conclusion, the High Court emphasised two fundamental points about copyright: In order to attract protection:
1. the work must originate with an author (who must be human); and
2. the work must be the result of ‘independent intellectual effort’ and ‘sufficient effort of a literary/artistic nature’ to create the original expression which constitutes the work.
In 2010, in Primary Health Care Limited v Commissioner of Taxation [2010] FCA 419, the Federal Court of Appeal put this more eloquently. The Court held that to attract copyright, a human-generated work must show ‘a continuous narrative showing independent intellectual effort expended in expression’. This works very well as a litmus test across every field of human cultural endeavour. Had AI never been invented, copyright law based on this principle would probably have muddled along quite nicely.
AI upsets the applecart, completely, because copyright as currently defined in Australia and the US, cannot currently subsist in any of the products that it generates. This is a big problem, because AI is arguably the single most powerful new tool for cultural creativity since the printing press. In its long history (dating back to the Statute of Anne in 1710) copyright law has adapted to many new technologies without sacrificing its ‘inner core’ of human originality and authorship. Forty years ago there were adaptations in response to the computer age; there is now a strong argument to suggest that copyright should adapt again, to vest copyright in certain classes of AI-generated works that result from complex and original human prompts, and which exhibit clear signs of significant overall human control.
Fortunately, we don’t have to look far to see what this adapted copyright law might look like: the UK has already introduced it. Section 9(3) of the Copyright, Designs and Patents Act 1988 (UK) states that in the case of a work that that is computer-generated, the author, for copyright purposes, ‘shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken’ (emphasis added).
This means that, in the UK, if you are a human working with AI, and you put in original prompts, choose the scope of your work, and make edits to various drafts along the way, you will be taken to be the author of the final AI output for copyright purposes – subject of course to the terms and conditions of the LLM you happen to be using; for example ChatGPT does generally allow users to own the outputs that result from their prompts.
What would this mean for the authors of the papers to be presented at Agents4Science? It would make a world of difference. It would mean that the investment of time, effort, and original thought which goes in to creating each AI generated scientific paper would be rewarded with ownership, and all of the protections that this entails. Absent this, and these carefully curated works will become faceless, cogs in the machine, and the sparks of human ingenuity and originality inherent in the creation of each such work will go unrecognised.
Currently, contributors to Agents4Science will not mind this: the conference is an experiment, and there is a value always in being involved in something new. But this will pass. Scientists will soon find, as musicians and artists and writers have already found, that without proper recognition of the distinctly human vision inherent in the architecture of their works, they will be left high and dry. The AI tide will move on without them, leaving ‘all the voyage of their life bound in shallows and in miseries’.”
