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The Singapore Law Gazette

AI and Copyright: The Death of Author?

Is the postmodern condition of the death of the author in literary criticism fast becoming a reality in copyright law? Not yet. The limitless potential of artificial intelligence (AI) to analyse information, execute complex tasks, create and invent, has yet to be fully comprehended or harnessed. Unfortunately, the new Copyright Act 2021 does not directly address AI authorship. This commentary postulates that in the exceptional circumstances that AI arguably creates a work as a result of independent and autonomous deep learning, recognition of “authorship” must nonetheless be satisfied by the location of a nexus to a human individual.

Today, rapid advancements in AI capabilities to create literary, dramatic, musical and artistic (LDMA) works continue to redefine the human role in the creative process. Most of these works generated by computers rely heavily on the underlying algorithm and creative input of the programmers. The computers are akin to paintbrushes or chisels – they are tools used in the creation of the artworks. While technology may have significantly influenced our understanding of authorial production, the canons of copyright law have not changed; the paradigm of romantic authorship continues to hold sway in virtually all jurisdictions. The LDMA work must originate from a human author as a result of his or her skill, judgment and labour. In their article on AI authorship, Jane Ginsburg and Luke Ali Budiardjo, perhaps not unintentionally, employed a romantic term – the “amanuensis” – to describe one who acts as an agent by faithfully carrying out the subordinate task assigned by the principal as distinct from the author in copyright law, and therefore to whom the attribution of authorship should not be accorded.1Jane C. Ginsburg & Luke Ali Budiardjo, Authors and Machines, 34 Berkeley Tech. L.J. 344, 355, 360 (2018) (“Attribution of authorship effectively follows general rules of agency: ‘the physical acts of the agent are attributed wholly to the author’ under whose control and direction the amanuensis acts.”). See also, Elizabeth Adeney, Authorship and Fixation in Copyright Law: A Comparative Comment, 35 Melbourne U. L. Rev. 677, 682 (2011) (“when another person acts as an amanuensis to the author, the author will achieve copyright protection for the words recorded,” and that “(t)he physical acts of the agent or scribe are attributed wholly to the author who has supplied the words to be recorded”).

The Singapore Academy of Law’s Law Reform Committee recognises that given AI’s increasing capabilities, AI-generated works are inevitable. Thus, it recognised the need for statutory reform on copyright protection for computer-generated works and, in particular, contemplated adopting section 9(3) of the UK’s CDPA.2Law Reform Committee, Singapore Academy of Law, Rethinking Database Rights and Data Ownership in an AI World, (2.76) (2020). While provisions similar to section 9(3) also appear in India,3Copyright Act 1957, No. 14, Acts of Parliament 1957, s. 2(d)(v) Ireland,4Copyright and Related Rights Act (Act No. 28/2010) s. 21(f). New Zealand5Copyright Act 1994, s. 5(2)(a). and Hong Kong6Copyright Ordinance 1997, Cap 528, Acts of Parliament 1994, s. 11(3). (with the “author” of the computer-generated work considered to be the person who completed “the arrangements necessary for the creation of the work”), Singapore’s latest copyright review declined to consider this matter.7Ministry of Law and Intellectual Property Office of Singapore, Singapore Copyright Review Report (Jan. 17 2019), https://www.mlaw.gov.sg/files/news/public-consultations/2021/copyrightbill/Annex_A-Copyright_Report2019.pdf. The preference for the Singapore government is to leave it to the courts to determine when a work generated by AI or computers would be an “authorial work” in the new Copyright Act 2021.8Copyright Act 2021 (No. 22 of 2021) s. 9. The Act, however, offers no further assistance to the courts on how they may properly evaluate such works. As a result, the Singapore courts would have to look to the scant case law in comparable Commonwealth common law jurisdictions.

I believe that the “core concept” of authorship in copyright law is the “creativity in conceiving the work and controlling its execution.”9Jane C. Ginsburg, The Concept of Authorship in Comparative Copyright Law, 52 DePaul L. Rev. 1063, 1067, 1072 (2003). AI learning, no matter how sophisticated and advanced, only simulates and mimics human mental processes, even though it may surpass them. This universal notion of human creativity is borne out in many different jurisdictions around the world and is most prominently observed in judgments on authorship and copyright subsistence in compilation works.10See, e.g., Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991); IceTV Pty Ltd v. Nine Network Australia Pty Ltd (2009) 239 CLR 458, (22), (24)-(26), (33), (95)-(99); Telstra Corporation Ltd v. Phone Directories Company Pty Ltd (2010) FCAFC 149, (72), (101), (104), (118)-(119), (130), (134), (137), (179); Global Yellow Pages Ltd v. Promedia Directories Pty Ltd, (2017) 2 SLR 185, (24), (28); David Tan, Copyright in Compilations: Embarking on a Renewed Quest for the Human Author and the Creative Spark, 18 Media & Arts L. Rev. 151 (2013). Granting copyright protection to only AI-aided works incentivises to the extent necessary to encourage creativity, without disproportionately preventing reasonable access to works by the public.11See, e.g., Official Reports, Parliament of Singapore, Parliamentary Debates (Hansard), vol. 78, column 1070 (Nov. 16, 2004). However, providing copyright protection for autonomous AI-generated works would grant a monopoly to individuals and corporates who did not provide the requisite creativity that is connected to the creation of the final products. This is “disproportionate and excessive,”12Courtney White & Rita Matulionyte, Artificial Intelligence Painting the Bigger Picture For Copyright Ownership, 30 Aust. Intell. Prop. J. 224, 238 (2020); Daniel J. Gervais, The Machine as Author, 105 Iowa L. Rev. 2053, 2061 (2020). and may cause “copyright stockpiling.”13Robert Yu, The Machine Author: What Level of Copyright Protection Is Appropriate for Fully Independent Computer-Generated Works?, 165 U. Pa. L. Rev. 1245, 1261-1263 (2017).

The Human Authorship Requirement

I would like to first make some observations on the prevailing legislation and case law that govern the recognition of copyright in works. The UK’s Copyright, Designs and Patents Act 1988 (CDPA), Australia’s Copyright Act 1968 and Singapore’s Copyright Act 2006 divide copyright subject matter into two categories – original authors’ works and “subject-matter other than works.”14The key reason for distinguishing original LDMA works from “subject-matter other than works” is because only LDMA works require originality in the sense of originating from a human author. In the earlier Singapore Copyright Act 2006, a “qualified person” for LDMA works is restricted to natural persons (s. 27(4)) while “qualified person” for “subject-matter other than works” includes “a body corporate incorporated under any written law in Singapore” (s. 81(1)(b)); Copyright Act, Cap. 6, (rev. ed., 2006). In Singapore’s revamped Copyright Act 2021, the LDMA works are known as “authorial works”15Copyright Act 2021, s. 9. within the broad definition of “works” which comprise LDMA works and what used to be “subject-matter other than works” (e.g. sound recording, film and broadcast).16Copyright Act 2021, s. 88.

The Commonwealth common law jurisdictions have consistently premised their copyright regimes on requiring human authorship. In Asia Pacific Publishing Pte Ltd v. Pioneers & Leaders (Publishers) Pte Ltd,17(2011) 4 SLR 381 (‘Asia Pacific Publishing’) the Singapore Court of Appeal (CA) cited the UK’s Copyright Act 1911 and CDPA as examples of copyright legislation implying human authorship, since they afforded copyright protection to authors for their lifetime plus 50 years. While section 9(3) of the CDPA appears to afford copyright protection to computer-generated LDMA works even in the absence of a human author,18Copyright, Designs and Patents Act 1988, c. 48. Section 178 defines “computer-generated” as work that is “generated by computer in circumstances such that there is no human author of the work”. it has been interpreted by courts to require the identification of a “causal link” between the computer-generated work and a human author.19Jacob Turner, Robot Rules Regulating Artificial Intelligence 125 (2019). The English High Court affirmed the human authorship requirement in Nova Productions Ltd v. Mazooma Games Ltd when it applied the computer-generated work sections of the CDPA to the computer-generated composite frames, and identified the human programmer in that case as the author of these artistic works.20Nova Productions Ltd. v. Mazooma Games Ltd. (2006) EWHC 24 (Ch), (12)-(18), (108). Section 32(4) of the Australian Copyright Act 1968 clarifies that qualified persons refer to natural persons in respect of copyright subsistence in an original LDMA work.21Copyright Act 1968, s. 32(4) (“qualified person means an Australian citizen or a person resident in Australia”). Complementing the statutory approach, Australian case law, such as in Telstra Corporation Ltd v. Phone Directories Company Pty Ltd and more recently in Acohs Pty Ltd v. Ucorp Pty Ltd, requires that the “author” be an “actual person” and a “human author.”22Telstra Corporation Ltd v. Phone Directories Company Pty Ltd (2010) FCAFC 149, (100), (134); Acohs Pty Ltd v. Ucorp Pty Ltd (2012) 201 FCR 173, (57).

In Singapore, the CA in a 2017 decision in Global Yellow Pages Ltd v. Promedia Directories Pte Ltd affirmed its earlier comment in Asia Pacific Publishing Pte Ltd v. Pioneers & Leaders (Publishers) Pte Ltd regarding the “natural persons” requirement,23Asia Pacific Publishing (2011) 4 SLR 381, (82).(“without the identification of a human author from whom the work originates, there can be no ‘original work’ capable of copyright protection”.). where the same court held that for copyright to subsist in any literary work, the authorial creation must causally connect with the “engagement of the human intellect.”24Global Yellow Pages Ltd v. Promedia Directories Pte Ltd, (2017) 2 SLR 185, (24). The CA then proceeded to define human intellect as “the application of intellectual effort … or the exercise of mental labour,” which a non-human author is deemed to be unable to provide.25Id. Furthermore, the new Copyright Act 2021, although avoiding the introduction of a provision similar to section 9(3) of the CDPA, nonetheless contains a suite of statutory provisions when read together indicate that only a human individual may be an “author”: (i) the duration provisions (section 114) – where duration is pegged to the death of a person (i.e. 70 years after death unless in the case of anonymous/pseudonymous works); (ii) the “qualified individual” provision (section 77) – where copyright in an authorial work subsists only if the author is a qualified individual;26Copyright Act 2021, s. 77 (According to this provision, an individual is a qualified individual only if he or she is (a) a Singapore Citizen; or (b) a Singapore resident; or (c) an individual who, if he or she had been alive on 1 November 1957, would have qualified for Singapore citizenship under the repealed Singapore Citizenship Ordinance 1957). (iii) the connecting factors provisions (sections 109, 110) that articulate the conditions for copyright to subsist in unpublished and published authorial works; and (iv) the moral rights provisions (sections 370, 386, 387) – which refer to rights being personal in nature, and devolution of rights on death.

The CA in Asia Pacific Publishing also noted that civil law jurisdictions treated authors’ works as “emanations or extensions” of their personalities, based on the 19th-century European doctrine of droit moral. This was affirmed by the Court of Justice of the European Union (CJEU) on several occasions, especially in Infopaq International v. Danske Dagblades Forening.27Infopaq International A/S v. Danske Dagblades Forening, Case C-5/08, (2009) E.C.R. I-6569, (37) (The court held that copyright only applied to original works, and that originality must reflect the “author’s intellectual creation” which was generally interpreted as including the human element of an author’s personality). Thus, copyright protection should subsist in these LDMA works to protect their authors’ honour and reputations, which are inextricably connected to the works.28Asia Pacific Publishing, (2011) 4 SLR 381, (57)-(58). Similarly, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), most of which has been incorporated into the WIPO Copyright Treaty29WIPO Copyright Treaty, art. 1(4), Dec. 20, 1996, 2186 U.N.T.S. 121 (to which Singapore is a party). and the Agreement on Trade-Related Aspects of Intellectual Property Rights,30Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 9(1), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 3 (which is incorporated into Singapore’s World Trade Organisation commitments). was drafted with a focus on human authors’ rights in LDMA works.31See, e.g., Berne Convention for the Protection of Literary and Artistic Works, art. 2, 6(2), Sept. 9, 1886, 828 U.N.T.S 3. (Art. 2 refers to “author and his successors in title” and Art. 6(2) discusses the author’s rights after his death). See also, Berne Convention for the Protection of Literary and Artistic Works, art. 7, Sept. 9, 1886, as revised at Berlin on Nov. 13, 1908, 828 UNTS 221 (which emphasised the human-centric focus when it extended the term of protection to 50 years after the author’s death to cater to the higher life expectancies at that moment). Asian jurisdictions, like Japan, also require human authorship. The Copyright Law of Japan specifies that copyrightable works are “production[s] or works in which thoughts or sentiments are expressed creatively.”32Chosakukenhō (Copyright Law), Law No. 48 of 1970, art. 2, para. (1)(i). The expression of creativity is understood as arising from the author’s personality.

In the United States, while the Ninth Circuit Court of Appeals in Naruto v. Slater, which involved copyright in selfie photographs taken by a monkey, did not rule on the authorship issue, the court held that animals lacked statutory standing to sue under the Copyright Act.33Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018). In a separate opinion, Circuit Judge Smith commented that even allowing next-friend standing would be against public policy and Supreme Court precedent: “Institutional actors could simply claim some form of relationship to the animal or object to obtain standing and use it to advance their own institutional goals with no means to curtail those actions. We have no idea whether animals or objects wish to own copyrights or open bank accounts to hold their royalties from sales of pictures.” 34Id. at 432 (emphasis added).

Indeed, these are strong policy reasons to prevent institutional actors who own the AI (object) from abusing the standing rules. But this can create an awkward fissure if the AI can be recognised as the author of a work, but is unable to have another individual or institution bring an action on its behalf for infringement. While US case law, unlike in the UK, Australia and Singapore, does not clearly state the requirement of a human author for copyright to subsist, the US Copyright Office, taking guidance from past cases like Feist Publications, Inc., v. Rural Telephone Service Co.,35Feist Publications, 499 U.S. 340, 345 (1991). only registers original works of authorship created by humans. Crucially, the Copyright Office clarifies that works “produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author” will not be registerable.36U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §§ 300, 313.2 (3d ed. 2021). The rejection of an application by Stephen Thaler to register a two-dimensional AI-generated work titled “A Recent Entrance to Paradise” is currently being challenged. The plaintiff Thaler had identified the author of the work as the “Creativity Machine” and noted that it was “Created autonomously by the machine”. The US Copyright Office refused to register the claim based on lack of human authorship on August 12, 2019. See Thaler v. Perlmutter, Case 1:22-cv-01564 (filed June 3, 2022, D.D.C.). Based on the US Supreme Court’s 2019 unanimous decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, a copyright claimant must comply with the requirements of 17 U. S. C. §411(a) and may commence an infringement suit only when the Copyright Office registers a copyright.37Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019). Hence, if the Copyright Office refuses to register a copyright for works created by AI, then the enforcement of copyright becomes impossible, and the question of autonomous AI authorship is moot.

In summary, the human authorship requirement should not be abandoned even in the face of technological developments, as the collective wisdom of case law across numerous jurisdictions clearly demand the identification of a human author. As Ng-Loy Wee Loon succinctly observes: “a failure or inability to pinpoint the identity of the creator of the work is fatal to a claim that the work is original. It is equally fatal if the outcome of the identification process points to a non-human as the creator of the work.”38Ng-Loy Wee Loon & David Tan, Intellectual Property in Law and Technology in Singapore 399, 403 (Simon Chesterman et. al. eds., 2021).

The Requisite Standard of Originality/Creativity

One must be careful not to equate “value” with “creativity” in copyright law. It has been pointed out by Mark Runco and Garrett Jaeger that “originality is vital for creativity but it is not sufficient.”39Mark A. Runco & Garrett J. Jaeger, The Standard Definition of Creativity, 24 Creativity Res. J. 92, 92 (2012). The CJEU in Cofemel-Sociedade de Vestuário SA v. G-Star Raw CV emphatically held that “the fact remains that the circumstance that a design may generate an aesthetic effect does not, in itself, make it possible to determine whether that design constitutes an intellectual creation reflecting the freedom of choice and personality of its author.”40Cofemel-Sociedade de Vestuário SA v. G-Star Raw CV, Case C-683/17, EU:C:2019:721, (Sept. 12, 2019), (54). Specifically, “it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choice.”41Id. at (30). To acquire copyright in a work, European courts today require that the author must be able to express his or her creative abilities in the production of the work by making free and creative choices.42Eva-Maria Painer v. Standard Verlags GmbH, Case C-145/10, (2011) ECR I‑12533, (87)-(89), (94). Gabriele Spina Alí phrases this requirement as discerning a “trace of the user’s personal mark in the output” in relation to works generated by computers.43Gabriele Spina Alí, “The Times They Are AI-Changin’: Copyright and Computer-Generated Works” (2019) 27 AIDA 367 at (6.3.3). This requirement of human creativity in authorship is inextricably intertwined with originality. Jyh-An Lee notes that originality “reflects the author’s creativity in the copyright work”.44Jyh-An Lee, “Computer-generated Works under the CDPA 1988” in Jyh-An Lee et al (eds), Artificial Intelligence & Intellectual Property (Oxford University Press, 2021) 171, at 184. Unlike humans, machines are unable to fulfil the sine qua non of authorship – “creativity”.

I agree with Anna Shtefan that “the rejection of creativity as the basis of copyright would be unacceptable”.45Anna Shtefan, “Creativity and artificial intelligence: a view from the perspective of copyright” (2021) 16 Journal of Intellectual Property Law & Practice 720, 724. It is worth exploring Shtefan’s detailed description of “creativity” which essentially gives substance to the familiar notion of an “intellectual creation” found in many copyright statutes. She explains the creative process that happens in the mind of an author who ultimately produces a work as follows:

“The creative process takes place in the subconscious mind, which generates various images, feelings, emotions, and transmits them to consciousness. Consciousness perceives these images and makes decisions about how they can be embodied in any form. Conscious comprehension of the impulses and enlightenments in the subconscious mind is necessary for persons to express their ideas in an objective form using some tools … Consciousness performs an auxiliary function selecting the form of expression for the results of creativity and controlling the process of modelling it.”46Id. at 725.

In the language of originality, it is the presence of the author’s own choice or volitional path in the creation of a work – as a result of the conscious mind (entailing rules of logic) and subconscious mind (involving fantasy, imagination, intuition and premonition) working together – that makes a work “original”.47Id.

In Singapore, the CA in Asia Pacific Publishing48Asia Pacific Publishing, (2011) 4 SLR 381, (18). and, more recently, Global Yellow Pages endorsed the “creativity” approach over the “sweat of the brow” approach, when ascertaining the originality of a work – in that case, a compilation work. The latter approach examines the author’s “labour and industry” as well as effort during the preparatory stage, while the former approach focuses on work being “causally connected with the engagement of the human intellect [emphasis added]” when developing the expression of the work.49Global Yellow Pages, (2017) 2 SLR 185, (23)-(24) (emphasis added). The focus of the CA is on the “intellectual creation” which the court explains as follows:

“By the human intellect, we mean the application of intellectual effort, creativity, or the exercise of mental labour, skill or judgment. Effort (even intellectual) that is applied not towards the authorial creation but towards other ends such as the verification of facts will not be relevant in this context even if such verified facts might be the eventual subject of the authorial creation.”50Global Yellow Pages Ltd, (2017) 2 SLR 185, (24).

While the judicial comments pertain to a compilation work, they would be equally relevant to scenarios where one has to determine whether the AI was acting as an amanuensis or in an autonomous capacity.

So, What Now?

There is currently a dearth of case law on how to distinguish between human-authored works that are assisted or augmented by AI, and works that are independently and autonomously generated by AI. English decisions like Nova Productions in the interpretation of sections 9(3) and 178 of the CDPA are not instructive as the human author was clearly identified there and not an issue.51Nova Productions, (2006) EWHC 24 (Ch) (105) (“In so far as each composite frame is a computer-generated work then the arrangements necessary for the creation of the work were undertaken by Mr Jones because he devised the appearance of the various elements of the game and the rules and logic by which each frame is generated and he wrote the relevant computer programme”). However, what is clear today is that when the human input lacks a “sufficient causal nexus with the final work”,52Global Yellow Pages, (2017) 2 SLR 185, (24). then the human author, from whom a work originates, cannot be identified.53Asia Pacific Publishing, (2011) 4 SLR 381, (82) (where the court held that “without the identification of a human author from whom the work originates, there can be no ‘original work’ capable of copyright protection.”). As a result, what we have is an authorless work – no matter how aesthetic, useful or valuable. This was pointed out by the the Supreme Court of South Africa in Payen Components S.A. Ltd v. Bovic CC and Others: “There may be cases where the real work has been done by the computer, the human contribution being too trivial or not sufficiently related to the work that has emerged. Suppose a computer linked directly to a large number of meteorological instruments and programmed automatically to print out a weather chart on demand. It seems factually wrong to contend that the deviser of the program is the ‘author’ of the chart. He may have died many years ago, the program may have been bought in from an independent software house, yet every day quite different charts are printed out. … It is perhaps even more artificial to argue that the operator of the computer is the author: the only skill and labour he had employed is ensuring that the flow of programs and data to the machine is maintained.”54Payen Components S.A. Ltd v. Bovic CC and Others, (1995) ZASCA 57 (15) (citing Laddie, Prescott and Vitoria: The Modern Law of Copyright (2nd ed) (1995)).

In a longer article, I had proposed that the following inquiry may be useful for courts to consider when attempting to determine whether a human author who has a sufficient causal nexus with the final work can be identified: (a) Did the human author (as claimed) conceive and execute his or her creative plan? (b) Did the plan satisfy the level of creativity required?55Wee Liang Tan and David Tan, AI, Author, Amanuensis, 6(2) J. IP Stud. 1 (2022) (available at https://journalofipstudies.files.wordpress.com/2022/10/david-tan-1.pdf). The proposed framework can comfortably fit into the present approach in many jurisdictions in respect of protection for LDMA works.56There is also a specific four-step test recently proposed for the examination of whether AI-assisted output can qualify as a “work” protected under EU law: (i) production in literary, scientific or artistic domain; (ii) human intellectual effort; (iii) originality/creativity (creative choice); (iv) expression. See, P. Bernt Hugenholtz & João Pedro Quintais, Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?, 52 Int’l Rev. Intell. Prop. & Comp. L. 1190 (2021). It is in line with the majority view in academic and judicial discussions that the author of a work generated by a computer should be the programmer who wrote the algorithm(s) that generated the work,57See e.g., Jyh-An Lee, “Computer-generated Works under the CDPA 1988” in Jyh-An Lee, Reto Hilty and Kung-Chung Liu (eds), Artificial Intelligence & Intellectual Property (Oxford University Press, 2021) 171, 187; Peter K. Yu, Data Producer’s Right and the Protection of Machine-Generated Data, 93 Tulane L. Rev. 859, 904 (2019); Dickenson et. al., supra note 118, at 458-9; Bruce E. Boyden, Emergent Work, 39 Colum. J.L. & Arts 337, 384 (2016); Lin Weeks, Media Law and Copyright Implications of Automated Journalism, 4 N.Y.U. J. Intell. Prop. & Ent. L. 67, 92 (2014). but goes a step further in offering an analytical tool to evaluate relative contributions of different human individuals in the process of creating the final work. It obviates an antecedent distinction between works that are generated by AI and works that are not. It goes straight to the heart of what really matters in the canons of copyright law – authorship and originality/creativity.

The framework recognises the roles of the programmer of the algorithm, the data supplier who selects and inputs the relevant data, and the users of the AI system who may add a further creative contribution to the final output. It is also able to allow the court to systematically evaluate the relative weight and nexus of creative input of each human individual to the final work to properly discern whether sole or joint authorship ought to be recognised. I very much welcome the advent of unexpected and unusual AI art, but there is unfortunately no room for the AI author. Long live the romantic author!

Endnotes

Endnotes
1 Jane C. Ginsburg & Luke Ali Budiardjo, Authors and Machines, 34 Berkeley Tech. L.J. 344, 355, 360 (2018) (“Attribution of authorship effectively follows general rules of agency: ‘the physical acts of the agent are attributed wholly to the author’ under whose control and direction the amanuensis acts.”). See also, Elizabeth Adeney, Authorship and Fixation in Copyright Law: A Comparative Comment, 35 Melbourne U. L. Rev. 677, 682 (2011) (“when another person acts as an amanuensis to the author, the author will achieve copyright protection for the words recorded,” and that “(t)he physical acts of the agent or scribe are attributed wholly to the author who has supplied the words to be recorded”).
2 Law Reform Committee, Singapore Academy of Law, Rethinking Database Rights and Data Ownership in an AI World, (2.76) (2020).
3 Copyright Act 1957, No. 14, Acts of Parliament 1957, s. 2(d)(v)
4 Copyright and Related Rights Act (Act No. 28/2010) s. 21(f).
5 Copyright Act 1994, s. 5(2)(a).
6 Copyright Ordinance 1997, Cap 528, Acts of Parliament 1994, s. 11(3).
7 Ministry of Law and Intellectual Property Office of Singapore, Singapore Copyright Review Report (Jan. 17 2019), https://www.mlaw.gov.sg/files/news/public-consultations/2021/copyrightbill/Annex_A-Copyright_Report2019.pdf.
8 Copyright Act 2021 (No. 22 of 2021) s. 9.
9 Jane C. Ginsburg, The Concept of Authorship in Comparative Copyright Law, 52 DePaul L. Rev. 1063, 1067, 1072 (2003).
10 See, e.g., Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991); IceTV Pty Ltd v. Nine Network Australia Pty Ltd (2009) 239 CLR 458, (22), (24)-(26), (33), (95)-(99); Telstra Corporation Ltd v. Phone Directories Company Pty Ltd (2010) FCAFC 149, (72), (101), (104), (118)-(119), (130), (134), (137), (179); Global Yellow Pages Ltd v. Promedia Directories Pty Ltd, (2017) 2 SLR 185, (24), (28); David Tan, Copyright in Compilations: Embarking on a Renewed Quest for the Human Author and the Creative Spark, 18 Media & Arts L. Rev. 151 (2013).
11 See, e.g., Official Reports, Parliament of Singapore, Parliamentary Debates (Hansard), vol. 78, column 1070 (Nov. 16, 2004).
12 Courtney White & Rita Matulionyte, Artificial Intelligence Painting the Bigger Picture For Copyright Ownership, 30 Aust. Intell. Prop. J. 224, 238 (2020); Daniel J. Gervais, The Machine as Author, 105 Iowa L. Rev. 2053, 2061 (2020).
13 Robert Yu, The Machine Author: What Level of Copyright Protection Is Appropriate for Fully Independent Computer-Generated Works?, 165 U. Pa. L. Rev. 1245, 1261-1263 (2017).
14 The key reason for distinguishing original LDMA works from “subject-matter other than works” is because only LDMA works require originality in the sense of originating from a human author. In the earlier Singapore Copyright Act 2006, a “qualified person” for LDMA works is restricted to natural persons (s. 27(4)) while “qualified person” for “subject-matter other than works” includes “a body corporate incorporated under any written law in Singapore” (s. 81(1)(b)); Copyright Act, Cap. 6, (rev. ed., 2006).
15 Copyright Act 2021, s. 9.
16 Copyright Act 2021, s. 88.
17 (2011) 4 SLR 381 (‘Asia Pacific Publishing’)
18 Copyright, Designs and Patents Act 1988, c. 48. Section 178 defines “computer-generated” as work that is “generated by computer in circumstances such that there is no human author of the work”.
19 Jacob Turner, Robot Rules Regulating Artificial Intelligence 125 (2019).
20 Nova Productions Ltd. v. Mazooma Games Ltd. (2006) EWHC 24 (Ch), (12)-(18), (108).
21 Copyright Act 1968, s. 32(4) (“qualified person means an Australian citizen or a person resident in Australia”).
22 Telstra Corporation Ltd v. Phone Directories Company Pty Ltd (2010) FCAFC 149, (100), (134); Acohs Pty Ltd v. Ucorp Pty Ltd (2012) 201 FCR 173, (57).
23 Asia Pacific Publishing (2011) 4 SLR 381, (82).(“without the identification of a human author from whom the work originates, there can be no ‘original work’ capable of copyright protection”.).
24 Global Yellow Pages Ltd v. Promedia Directories Pte Ltd, (2017) 2 SLR 185, (24).
25 Id.
26 Copyright Act 2021, s. 77 (According to this provision, an individual is a qualified individual only if he or she is (a) a Singapore Citizen; or (b) a Singapore resident; or (c) an individual who, if he or she had been alive on 1 November 1957, would have qualified for Singapore citizenship under the repealed Singapore Citizenship Ordinance 1957).
27 Infopaq International A/S v. Danske Dagblades Forening, Case C-5/08, (2009) E.C.R. I-6569, (37) (The court held that copyright only applied to original works, and that originality must reflect the “author’s intellectual creation” which was generally interpreted as including the human element of an author’s personality).
28 Asia Pacific Publishing, (2011) 4 SLR 381, (57)-(58).
29 WIPO Copyright Treaty, art. 1(4), Dec. 20, 1996, 2186 U.N.T.S. 121 (to which Singapore is a party).
30 Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 9(1), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 3 (which is incorporated into Singapore’s World Trade Organisation commitments).
31 See, e.g., Berne Convention for the Protection of Literary and Artistic Works, art. 2, 6(2), Sept. 9, 1886, 828 U.N.T.S 3. (Art. 2 refers to “author and his successors in title” and Art. 6(2) discusses the author’s rights after his death). See also, Berne Convention for the Protection of Literary and Artistic Works, art. 7, Sept. 9, 1886, as revised at Berlin on Nov. 13, 1908, 828 UNTS 221 (which emphasised the human-centric focus when it extended the term of protection to 50 years after the author’s death to cater to the higher life expectancies at that moment).
32 Chosakukenhō (Copyright Law), Law No. 48 of 1970, art. 2, para. (1)(i).
33 Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).
34 Id. at 432 (emphasis added).
35 Feist Publications, 499 U.S. 340, 345 (1991).
36 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §§ 300, 313.2 (3d ed. 2021). The rejection of an application by Stephen Thaler to register a two-dimensional AI-generated work titled “A Recent Entrance to Paradise” is currently being challenged. The plaintiff Thaler had identified the author of the work as the “Creativity Machine” and noted that it was “Created autonomously by the machine”. The US Copyright Office refused to register the claim based on lack of human authorship on August 12, 2019. See Thaler v. Perlmutter, Case 1:22-cv-01564 (filed June 3, 2022, D.D.C.).
37 Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019).
38 Ng-Loy Wee Loon & David Tan, Intellectual Property in Law and Technology in Singapore 399, 403 (Simon Chesterman et. al. eds., 2021).
39 Mark A. Runco & Garrett J. Jaeger, The Standard Definition of Creativity, 24 Creativity Res. J. 92, 92 (2012).
40 Cofemel-Sociedade de Vestuário SA v. G-Star Raw CV, Case C-683/17, EU:C:2019:721, (Sept. 12, 2019), (54).
41 Id. at (30).
42 Eva-Maria Painer v. Standard Verlags GmbH, Case C-145/10, (2011) ECR I‑12533, (87)-(89), (94).
43 Gabriele Spina Alí, “The Times They Are AI-Changin’: Copyright and Computer-Generated Works” (2019) 27 AIDA 367 at (6.3.3).
44 Jyh-An Lee, “Computer-generated Works under the CDPA 1988” in Jyh-An Lee et al (eds), Artificial Intelligence & Intellectual Property (Oxford University Press, 2021) 171, at 184.
45 Anna Shtefan, “Creativity and artificial intelligence: a view from the perspective of copyright” (2021) 16 Journal of Intellectual Property Law & Practice 720, 724.
46 Id. at 725.
47 Id.
48 Asia Pacific Publishing, (2011) 4 SLR 381, (18).
49 Global Yellow Pages, (2017) 2 SLR 185, (23)-(24) (emphasis added).
50 Global Yellow Pages Ltd, (2017) 2 SLR 185, (24).
51 Nova Productions, (2006) EWHC 24 (Ch) (105) (“In so far as each composite frame is a computer-generated work then the arrangements necessary for the creation of the work were undertaken by Mr Jones because he devised the appearance of the various elements of the game and the rules and logic by which each frame is generated and he wrote the relevant computer programme”).
52 Global Yellow Pages, (2017) 2 SLR 185, (24).
53 Asia Pacific Publishing, (2011) 4 SLR 381, (82) (where the court held that “without the identification of a human author from whom the work originates, there can be no ‘original work’ capable of copyright protection.”).
54 Payen Components S.A. Ltd v. Bovic CC and Others, (1995) ZASCA 57 (15) (citing Laddie, Prescott and Vitoria: The Modern Law of Copyright (2nd ed) (1995)).
55 Wee Liang Tan and David Tan, AI, Author, Amanuensis, 6(2) J. IP Stud. 1 (2022) (available at https://journalofipstudies.files.wordpress.com/2022/10/david-tan-1.pdf).
56 There is also a specific four-step test recently proposed for the examination of whether AI-assisted output can qualify as a “work” protected under EU law: (i) production in literary, scientific or artistic domain; (ii) human intellectual effort; (iii) originality/creativity (creative choice); (iv) expression. See, P. Bernt Hugenholtz & João Pedro Quintais, Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?, 52 Int’l Rev. Intell. Prop. & Comp. L. 1190 (2021).
57 See e.g., Jyh-An Lee, “Computer-generated Works under the CDPA 1988” in Jyh-An Lee, Reto Hilty and Kung-Chung Liu (eds), Artificial Intelligence & Intellectual Property (Oxford University Press, 2021) 171, 187; Peter K. Yu, Data Producer’s Right and the Protection of Machine-Generated Data, 93 Tulane L. Rev. 859, 904 (2019); Dickenson et. al., supra note 118, at 458-9; Bruce E. Boyden, Emergent Work, 39 Colum. J.L. & Arts 337, 384 (2016); Lin Weeks, Media Law and Copyright Implications of Automated Journalism, 4 N.Y.U. J. Intell. Prop. & Ent. L. 67, 92 (2014).

Professor, NUS Law
Head (Intellectual Property), EW Barker Centre for Law & Business, NUS Law

Co-Director, Centre for Technology, Robotics, AI & the Law
E-mail: [email protected]

David Tan is Professor of Law at the National University of Singapore. He is also the Co-Director for the Centre for Technology, Robotics, AI & the Law (TRAIL) and Head (Intellectual Property) at the EW Barker Centre for Law & Business.