April 8, 2018

Robots and Copyright: who owns a photo taken by AI?

Use of AI raises interesting questions around the ownership of copyright. Google has launched a new product to the American market, the Google Clip, that uses AI and machine learning to automatically capture photos of what it deems to be "interesting moments". The product is yet to launch in New Zealand but if and when it does, we will be faced with these questions: is there copyright in a photo not taken by a human, and, who owns it?

In Australia, the answers appear to be: there isn't and no one. Under Australian law, the author of an artistic work is "the person who took the photograph". The Clip is a machine, not a person, so is not the author (under Australian law). The owner of the Clip did not "take" the photograph, so is not the author. Since there is no author, the photo doesn't qualify for protection of copyright and there is no "owner".

New Zealand's copyright laws have already been updated to try to accommodate some new technology, including AI. Under New Zealand law, the photo would qualify for copyright protection, because the author does not have to be a "person who took the photograph" like in Australia. The Copyright Act 1994 provides that the author of a photograph that is computer generated is "the person by whom the arrangements necessary for the creation of the work are undertaken". However, the answer to the question of who owns the copyright is still not entirely clear. The person who "made the arrangements" could be the owner of the Clip as the owner of the machine, another person using the machine who did something to affect the photos being taken, or maybe the company that created the technology that took the photo.

The answer to this question will soon be needed once the likes of Google Clip reach our shores. Users who want to make use of photos created by a product like Clip should also carefully read the accompanying terms and conditions in case that affects copyright ownership.

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