Artificial Intelligence (“AI”) has improved as a result of technological advancement and has thus gained widespread momentum, seeping into our everyday lives. As such, it is unsurprising that AI has converged with the arts, with AI generated art being the latest fascination of the art world as seen in the high demand on NFT sites like OpenSea and the art market in general. But have you ever wondered, “Can AI-created art be accorded copyright protection?”
Under Malaysian copyright law, copyright is owned by people who create the work, i.e. it belongs to the author. S3 of the Copyright Act (“CA”) defines an author in relation to artistic works other than photographs as the artist. Also, with reference to s10 CA, copyright shall subsist in every work eligible for copyright of which the author (or in the case of a work of joint authorship, any of the authors) is, at the time when the work is made, a qualified person.
For context, s3 CA defines ‘qualified person’ as, in relation to an individual, a person who is a citizen of, or a permanent resident in, Malaysia; and in relation to a body corporate, a body corporate established in Malaysia and constituted or vested with legal personality under the laws of Malaysia.
As such, based on these sections, we can see that AI-created works cannot be accorded copyright protection since it is not considered a qualified person (i.e. not a natural person or a body corporate) and thus cannot be considered an author.
While this remains untested in the Malaysian courts, we can refer to the American case of Naruto v. Slater for guidance. In this case, a monkey named Naruto took selfies of itself on Slater’s unattended camera. Slater later published the monkey’s selfies and he was identified as one of the copyright owners of said selfie. However, People for the Ethical Treatment of Animals (“PETA”) filed a complaint for copyright infringement against Slater and two others on behalf of Naruto. The court decided that Naruto was a monkey and was thus not human. As such, it lacked statutory standing under the Copyright Act. In short, an animal which is non-human does not have access to copyrighting.
Besides, the US Copyright Office (“USCO”) has rejected copyright applications on AI-generated art. For example, the USCO has refused Stephen Thaler’s attempts to copyright a piece of art that was created by an artificial intelligence system titled “A Recent Entrance to Paradise” because according to the USCO, current copyright law only offers protections to “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind”.
In short, based on Malaysian legislation and foreign cases, AI-created art cannot be accorded copyright protection since an AI is not a human being or a body corporate. It is thus not an author. However, as technology progresses, the law might change to accommodate AI and other non-human generated works.
