The question of non-human authors in copyright has been deliberated by many.
Most recently, a United States Court has considered whether copyright vests in a macaque monkey called Naruto who took the infamous “Monkey Selfie” on the Indonesian island of Sulawesi. As at the time of writing this article, Naruto (as represented by the People for the Ethical Treatment of Animals (PETA)) has lodged an appeal. A final decision is yet to be rendered and is imminent.
Novelty cases such as Naruto’s highlight a growing concern with the intellectual property community as to the definition of what constitutes an author of an original work under copyright legislation throughout the globe. In Australia, the Copyright Act 1968 (Cth) (the Act) only contemplates original works that have been authored by a person. Specifically, copyright in Australia subsists in unpublished literary, dramatic, musical or artistic work if the author was a ‘qualified person’. A ‘qualified person’ for the purposes of the Act is defined as an Australian citizen, or a person that resides within Australia, at the time the original work is created.
Let us consider, for example, a mobile phone application that utilises artificial intelligence to “self-learn” and provides the end-user with a customised and individual experience. A company that develops an application with these characteristics may create artificially intelligent code that effectively re-writes itself – again and again – as the application learns to adapt, transform and service the end-user. The output of these applications would be machine-generated, and not specifically developed by a ‘qualified person’ as considered within the Act. Applications such as these not only currently exist, but are slowly becoming the industry norm.
Copyright protection, traditionally, arises upon the authorship of source code by software developers regardless of the specific development language of that source code. The fundamental policy behind copyright legislation is to protect an artistic or original expression and whilst computer programming language is not commonly understood as being an artistic endeavour as other traditional industries such as fine arts, copyright protection is fundamental to the information technology industry.
This poses an interesting debate where there may be, sometime in the future, infringement of source code that was not authored by a human. The logical conclusion many industry stakeholders would make is that the developer, or individual, that authored the source code that created the outputted material would own any resulting copyright in that material. This is not as simple as it appears.
The courts in Australia considered these issues as early as 1999 in Coogi Australia Pty Ltd v Hypersport International Pty Ltd & Ors  FCA 1059 (the Coogi Case). The Court determined that computer generated output, being jumpers and stitch work, were not materials in which copyright subsisted as the company creating the jumpers utilised computer algorithms (not humans) to randomise the stitch work.
Similarly, in 2012, the Federal Court considered in Acohs Pty Ltd v Ucorp Pty Ltd  FCAFC 16 whether source code consisting of thousands of material safety data sheets that had been outputted via a computer algorithm was capable of copyright protection considering the original input of data was machine generated and not the subject of input or work by a human. In this particular instance, the Court held that copyright did not subsist in the source code as it has not been solely authored by a human.
In our present-day society where artificially intelligent products such as Google Home, smart cars and drones are becoming more prevalent, it will be interesting to see whether the judiciary is able to interpret innovation in the technology sphere whilst providing adequate and effective protections for industry stakeholders.
In conclusion, watch this space.
This article was written by Luke Dale, Partner and Tom Webster, Associate.
Since this article was published and despite the US Court ruling that while ‘Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act’, the parties have settled the dispute outside of Court.