When Irish AIs are smiling: could Ireland’s legislative approach be a model for resolving AI authorship for EU member states?

Barry Scannell · Journal of Intellectual Property Law & Practice · 2022

Barry Scannell is a practising solicitor and consultant in Ireland’s top-ranked Technology and Intellectual Property Group in William Fry LLP. Barry is a legal subject matter expert and thought leader on AI and frontier technologies and is a PhD candidate and scholarship recipient in University College Cork, researching artificial intelligence and copyright in the College of Business & Law. This article considers the issue of AI authorship in the EU, identifies how this issue is problematic, and sets out to ascertain how much human involvement is required under EU law for a work to qualify for copyright protection. In discussing this issue, an analysis has been carried out on the literature on what constitutes an ‘AI-generated work’, due to the fact that there is a broad spectrum of what could be considered as such, with varying levels of human involvement. An examination is undertaken of how certain EU Member States have approached authorship in their copyright legislation and carries out a doctrinal review of EU legislation and CJEU case law for the EU approach to authorship, identifying human authorship requirements. A solution to the AI authorship question is proposed by suggesting that Irish legislation, which confers authorship of computer-generated works on the person who made the ‘necessary arrangements’ for the generation of those works, could be the basis of a model which EU Member States might follow, despite commentary suggesting that the Irish legislation is not compatible with the EU copyright acquis. The matter of how the EU addresses the issue of AI authorship requires an analysis of EU Law and of the requirement for an author to be human. If the human author requirement persists in EU law, works created utilizing AI may fall into the public domain. An example of what current AI is capable of is the Dall-E system from OpenAI. In their paper on the development of the technology, Ramesh et al note how ‘[w]hen given the caption “a tapir made of accordion…” … The model appears to draw a tapir with an accordion for a body, or an accordion whose keyboard or bass are in the shape of a tapir’s trunk or legs.’ The authors go on to surmise that this ‘suggests that it has developed a rudimentary ability to compose unusual concepts at high levels of abstraction.’1 The ‘AI-Authorship issue’ (discussed below) as applied to this example who is the author is there an for the of a tapir with an accordion for a law requires a human author for a work to copyright protection. In this a of an to on of the and of the the of the of the be a human for a of tapir made of is for the to have an author copyright protection. 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