Artificial Intelligence (AI) and Intellectual Property (IP) fundamentals

Introduction

In the broadest terms, the issue is that IP has from its earliest forms, been associated with a reward and incentive for creative human effort. With AI, the invention, literary or artistic work or design may not be the result of direct human creative effort but may be the result of minimal or even no human creative intervention.

Overview of some Rationales for IP

One of the common rationales for the IP statutory monopolies is essentially based on a trade-off or “contract” between the creative person/s and the government. The creatives will publicly disclose the IP in exchange for a period within which they may exclusively commercialise the IP through a statutory monopoly. This has been referred to as a “negative” right because the creative person already has the right to publish works and exploit inventions.[1]

This “contractual” explanation is one of several theories justifying the existence of IP rights. Other theories include:

• It is the natural right of each person who puts intellectual effort into creating something, to own and control what has been created through his or her labour: “whatsoever a man soweth, that shall he also reap” (Galatians 6:7).[2]

• The dissemination and re-use of information and ideas. As well as providing incentives for the creation of new, additional ideas and information, an effective IP system must facilitate the sharing of the ideas and information to enable other innovators to build upon it by creating further innovations.[3]

• The advancement of public welfare through systems which encourage the expenditure of time and effort in research and development with a view to recovering those expenses and obtaining a profit.

• IP systems facilitate the transfer of technology through foreign direct investment, joint ventures and licensing.[4]

Background History of each IP regime

Patents  

The current patent system has evolved from systems that emerged in Britain and Italy in the 15th century. However, the concept of granting exclusive rights to those who developed new products appears to have existed much earlier.  In Ancient Greece, as long ago as 500 BCE, chefs in the then Greek colony of Sybaris in southern Italy, were granted a monopoly for one year to profit from their unique culinary creations.[5]

In Venice, patents were systematically granted from around 1450 – mostly for glass-making – under a decree which required new and inventive devices to be communicated to the Republic in order to be afforded legal protection. Under the Venetian patent statuteof 1474 “men of great genius, apt to invent and discover ingenious devices” were encouraged and rewarded by the grant of a monopoly for 10 years over any “new and ingenious device” which they invented and disclosed. 

In Britain, the Crown began granting privileges to manufacturers and traders for the making or importing of particular goods, issuing official documents known as Letters Patents – open letters “addressed by the King to all his subjects at large” and marked with the King’s Great Seal – in the exercise of the royal prerogative.[6] The earliest known English patents appear to have been granted in the 1440s.  In 1440 John of Shiedame was granted a patent to introduce a method of making salt[7] and in 1449 Henry VI granted a patent to John of Utynam (a Flemish man), conferring a 20-year monopoly for a method of making stained glass which was not previously known in England and was used for the windows of Eton College.[8]

Elizabeth I and James I issued patents for commodities such as starch, salt, dice, cards, vinegar, currants, iron, saltpetre and lead. Abuse of the granting of monopolies, especially by Elizabeth I, led to the Case of Monopolies; Darcy v Allin [1572] EngR 398, which held certain monopolies to be void.  Darcy, a groom in the Queen’s Privy Chamber, had been granted a monopoly for making and selling playing cards for 21 years, which was held by the Court to be bad as it was “a monopoly against the common law”.

Ongoing concern about the abuse of monopolies and the grant of trading monopolies as instruments of royal patronage led to a constitutional struggle between monarchs (Elizabeth I and James I) and parliament which was not resolved until parliament enacted the Statute of Monopolies in 1623.

The Statute of Monopolies 1623 banned all monopolies and declared them to be void. Having declared a general prohibition of monopolies, s 6 of the Statute established an exception for patents for inventions for up to 14 years granted for “the sole working or making of any manner of new manufacture within this realm, to the true and first inventor and inventors of such manufactures” provided they are “not contrary to the Law or mischievous to the State, … or generally inconvenient”.

This statute is regarded as the foundation of the patent system in Britain, the United States and Australia.[9] Words and concepts from the Statute of Monopolies 1623 (UK) are still found in the Australian patent legislation in force in the 21st century.

Initially Australian States had patent legislation based on the UK legislation. The first patents legislation enacted by the Commonwealth parliament was the Patents Act 1903 (Cth), pursuant to the concurrent power under s 51(xviii) of the Commonwealth Constitution to legislate in relation to “[c]opyrights, patents of inventions and designs, and trade marks.”

Copyright

Copyright emerged in Europe in the late 15th century, in the years following the invention of the printing press by Johannes Gutenberg in Germany around 1440 and the establishment of the first printing press in England by William Caxton in 1476. In its earliest form, copyright existed as monopoly rights over the printing, publishing and selling of books – a copyright – which was granted by the monarch to members of the Stationers’ Company, a London guild of bookbinders, printers and booksellers.

The so-called “Stationers’ copyright” was brought to an end in 1710 when Parliament enacted the Statute of Anne – An Act for the Encouragement of Learning and for Securing the Property to Copies of Books to the Rightful Owners Thereof,[10] which is regarded as the cornerstone of modern copyright laws and has influenced the development of copyright laws worldwide. The Statute of Anne introduced statutory recognition of authors’ rights in their writings and gave them the right to control the printing, publishing and selling of books and “other writings” for a term of 14 years (which could be renewed by living authors for a further 14 years). Parliament’s intention that copyright would foster the spread of knowledge is apparent in the

In IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, French CJ, Crennan and Kiefel JJ at [25] observed:

“In both its title and opening recitals, the Statute of Anne of 1709 echoed explicitly the emphasis on the practical or utilitarian importance that certain seventeenth century philosophers attached to knowledge and its encouragement in the scheme of human progress: For example, Sir Francis Bacon (1561-1626) and John Locke (1632-1704)]. The “social contract” envisaged by the Statute of Anne, and still underlying the present Act, was that an author could obtain a monopoly, limited in time, in return for making a work available to the reading public.”

Over the ensuing centuries the scope of copyright has been progressively expanded to encompass new forms of creative material, such as musical works, engravings, prints, sculptures, lectures and dramatic works. The term of copyright has been lengthened, from 14 years in the Statute of Anne 1709 to 70 years beyond the life of the author, for many kinds of copyright material.[11]

Trade marks

Trade mark registration is governed by the Trade Marks Act 1995 (Cth) and the Trade Marks Regulations 1995 (Cth), giving effect to Australia’s obligations under Arts 15–21 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) [12] and the Trade Mark Law Treaty 1994 (TLT).[13] 

Statutory protection for trade marks in Australia has its origins in 19th colonial and British legislation and the evolution of the trade marks system has seen a progressive widening of the  categories of registrable marks.[14]

After Federation the colonial laws were replaced by the Trade Marks 1905 (Cth), enacted by the new Commonwealth parliament, which came into effect on 2 July 1906. It was largely modelled on the Trade Marks Act 1905(UK) and provided for registration of trade marks for goods but not services.

In trade marks, composite marks comprise of a word/s and a device. The device is usually an artistic work which may attract copyright. There is no obstacle to an AI device prompting a word mark or a word/device as a composite mark, because the rights to use largely flow from first use not creation of the mark. However, the copyright aspect of the trade mark will be compromised in the case of pure AI authorship.

To attempt to enforce rights of an element in a composite mark (either the word or the device) against a potential respondent, where either the word/s OR the device have been used by an unauthorised party in trade, is generally not permitted. This is an attempt to disentangle the elements of the trade mark and rely only on part of it for infringement.[15]

Designs

The design system, originated in the late 18th century with the growth of the textiles industry in Great Britain during the First Industrial Revolution.[16] It is now being challenged by a range of disruptive technologies which are rapidly merging the physical, digital and biological worlds in unprecedented ways. Fourth Industrial Revolution[17] technologies such as artificial intelligence (AI), virtual and augmented reality, and three-dimensional printing (3DP) and additive manufacturing are already impacting on the systems that have developed for the protection of designs.

The “revolutions”

It is said that the first industrial revolution spanned from about 1760 to around 1840 marked by the construction of railroads and the invention of the steam engine. The second industrial revolution, which started in the late 19th century and into the early 20th century, made mass production possible, enabled by the advent of electricity and the assembly line. The third industrial revolution began in the 1960s. It is usually called the computer or digital revolution because it was characterised by the development of semiconductors, mainframe computing (1960s), personal computing (1970s and 80s) and the internet (1990s).[18]

It is also said in relation to the distinction of the fourth industrial revolution, that it is not only about smart and connected machines and systems. Its scope is much wider and occurs simultaneously through waves of further breakthroughs in areas ranging from gene sequencing to nanotechnology, from renewables to quantum computing. It is the fusion of these technologies and their interaction across the physical, digital and biological domains that make the fourth industrial revolution fundamentally different from previous revolutions.[19]

The core issue AI raises with IP

The history of the IP areas when considered with the various rationales for IP, lead in the author’s respectful opinion, to the conclusion that individuals are the intended recipients of the IP rights. Individuals are encouraged to undertake creative tasks with the possibility of recognition and possible financial benefit through a statutory period of exclusive opportunity during which the public benefits by the enjoyment of those creative efforts and the common pool of knowledge allows for further advances to the benefit of society.

As the emphasis is and has been to provide the IP rights to individuals after certain criteria are met, the pure creation of works, inventions and designs by non-humans stands in direct conflict with these rationales and the grant of IP rights.

The use of the AI programme or computer as a “tool” is a question in itself. This will depend on the creative input made by a human in order to argue for copyright protection and against the case that there was no human contribution to the creation of the work.

Consider, if someone asked the AI device to create an artistic work involving a Stone bridge with a single person standing in the middle of the bridge and the person having a melancholy expression in a misty evening atmosphere with a full moon, then I’m in a position to argue that the AI device is a tool and that I have made a creative contribution to the end result, the artistic work, entitling me to authorship and ownership.

However, if I ask the AI device to create an artistic work that makes me happy and tell it things that make me happy such as animals, then I am running the risk that my human creative contribution is minuscule. In this case the AI device is not being used so much as a tool as it takes on the characteristics of a creative “author”.

In this case it will do me no good in copyright to select one of the AI’s offerings and say I chose the one that I liked the most, because I did not have a creative input into the work’s material form.

The human element of contribution or discernment appears again as something which should be consciously preserved. “AI agents” are autonomous software that use AI to understand goals, make decisions and complete tasks for users. An AI agent usually receives a goal or instructions in natural language. Hence their role in marketing businesses.

One of the moral rights under the Copyright Act is the right of attribution.[20] A failure to provide some human creative input may lead to a copyright infringement action being undermined and a moral rights infringement claim also likely to fail, as the attribution is to the author and a human is not the author.

The position in Australia of a non-human author, inventor or designer

Copyright

Under Australian copyright law, an artificial intelligence device cannot be considered an author. The Copyright Act 1968 (Cth) requires that copyright subsists in original literary, dramatic, musical, or artistic works only if those works originate from a “qualified person,” defined as an Australian citizen or a person resident in Australia, and authorship is understood to mean human authorship.

Similarly, in relation to ownership of the copyright, the first position is that the author is the owner of the copyright subsisting in a work.[21] The definition of “author” means “in relation to a photograph, the person who took the photograph.”[22] Further evidence of an intended human author appears when a work is made by the author in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Part.[23] The terms of ownership of a work as set out in the relevant provision above, may be modified by agreement – this anticipates an agreement between humans.

In Phone Directories,[24] Keane CJ identified the critical issue regarding the authorship of the phone directories and subsistence of copyright on the contribution to the compilation of individuals. His Honour concluded the following:

“The reasons of the High Court in IceTV authoritatively establish that the focus of attention in relation to the subsistence of copyright is not upon a general concern to prevent misappropriation of skill and labour but upon the protection of copyright in literary works which originate from individuals. In this case copyright was said to subsist in the directories as compilations, but the directories were not compiled by individuals.”

The difficulty in Phone Directories was that the process for production of the phone directories could not identify an individual or individuals who “exert[ed] sufficient effort of a literary nature or sufficient intellectual effort to constitute them as authors.”[25] 

Similarly, Yates J observed in Phone Directories at [133]:

“Originality lies at the heart of the subsistence of copyright in works because, as s 32 of the Act makes clear, copyright only subsists in works – in this case a literary work – where the work is “original”. As the Primary Judge correctly recognised, original works, for copyright purposes, emanate from authors: see the Full Court reasons at [21] and the long line of authority there referred to. The Primary Judge correctly identified the relevant chain of inquiry at [344] of her Honour’s reasons, as follows:

“Authorship and originality are correlatives. The question of whether copyright subsists is concerned with the particular form of expression of the work. You must identify authors, and those authors must direct their contribution (assessed as either an ‘independent intellectual effort’ of a “sufficient effort of a literary nature”) to the particular form of expression of the work. Start with the work. Find its authors. They must have done something, howsoever defined, that can be considered original…’”[26] (Emphasis added)

And further:

“Recognising that authorship denotes human authorship, two further presently-relevant concepts emerge. First, the test for originality is whether the work originated from the author in the sense that it was not copied by the author: Robinson v Sands & McDougall Pty Ltd [1916] HCA 51; (1916) 22 CLR 124 at 132-133; Sands & McDougall Pty Ltd v Robinson [1917] HCA 14; (1917) 23 CLR 49 at 52; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 291; Bookmakers’ Afternoon Greyhound Services Ltd v Wilf Gilbert (Staffordshire) Ltd [1994] FSR 723 at 731. As Lindgren J observed in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112; (2002) 119 FCR 491 at [92] the test must be applied to the thing to which the legislation attaches copyright protection. In this case this means the identified compilations represented in the published form of each regional directory as a WPD or a YPD: does each compilation originate from an author or authors? Secondly, the origination must involve human intellectual endeavour.”[27] (Emphasis added)

The applicant in Phone Directories put forward substantial evidence claiming authorship. Keane CJ referred at [31] to the Primary Judge’s conclusion at PJ[334-335], that the process was essentially automated:

“[A]lthough the Applicants tendered 91 affidavits from individuals who were said to be “authors” of one or more of the Works, the affidavits did not cover the range of people who would have made a contribution to the Works or cover the entire period the subject of the claim.  Moreover, some of the 91 individuals had a limited (or non-existent) role in contributing to the Sample Directories and of those who did contribute, the nature of the contribution was certainly not of a nature to be described as “independent intellectual effort” or “sufficient effort of a literary nature”. 

Moreover, these affidavits made clear that there are substantial parts of the directories that do not have human authors…are automated to the extent that human involvement is minor…or have authors who cannot be ascertained (for example, much of the rollover component of the directories…).

Patents

In Thaler v Commissioner of Patents,[28] Beach J determined a judicial review of the decision of the Deputy Commissioner of Patents. The Deputy Commissioner had decided that the terms of the Patents Act 1990 (Cth) and the Patents Regulations 1991 (Cth) were inconsistent with an AI device being treated as an inventor for the purpose of the Patents Act s 15: Stephen L. Thaler [2021] APO 5. Regulation 3.2C(2)(aa) of the Patents Regulations required that an applicant for a patent identify the inventor of the claimed invention. Dr Thaler inserted the name DABUS,[29] which was the name of the machine Dr Thaler claimed invented the invention identified in the patent application. Allegedly, DABUS made two separate inventions, namely a flashing light beacon for attracting enhanced attention in emergency situations and a fractal food container.

In particular, the Primary Judge accepted that s 15(1)(a) provided that a patent may be granted to a person who is the inventor and that DABUS was excluded from eligibility for grant on this basis, because it is not a person. However, the Primary Judge considered that s 15(1)(b) did not require the existence of an inventor at all, but rather that the applicant was entitled to have the patent assigned to him in the event that there was a grant. This was because the term “inventor” was an agent noun.[30] Accordingly, the Primary Judge considered that s 15(1)(b) could also apply where an invention was made by an artificial intelligence system, rather than by a human inventor.[31]

The Full Court of the Federal Court of Australia determined however in a unanimous decision of the five-judge constituted bench (including the Chief Justice), that an artificial intelligence machine cannot be an “inventor” within the meaning ascribed to that term in the Patents Act and Patents Regulations.[32] Taking a wider perspective than the Primary Judge, the Full Court considered that while statutory construction was a text-based activity, policy considerations informed such analysis.[33]. Their Honours considered the definition of “invention” by reference to s 6 of the Statute of Monopolies which provided an exception to the prohibition on monopolies in favour of the “true and first Inventor and Inventors of such Manufactures” as historically being a reward “for introducing into the kingdom an invention that was not previously known”.[34]

Their Honours of the Full Court referred to the Full Court’s decision in Stack v Davies Shephard Pty Ltd,[35]where their Honours there concluded at [21] that “[a] patent may only be granted to the inventor or somebody claiming through the inventor”, with which their Honours in this appeal agreed.[36]

In obiter, their Honours raised questions of the possibility of redefining the definition of “inventor” which was tied to “thought processes of the hypothetical uninventive skilled worker in the field” to accommodate AI.[37] The appeal was allowed, and the orders of the Primary Judge set aside. The High Court of Australia denied further appeal, and so the decision of the Full Federal Court of Australia is final.[38]

The question of the patentability of computer generated inventions has caused a division in the High Court in Aristocrat.[39] The controversy has been not around inventorship but whether the claimed invention was a ‘manner of manufacture’ within the meaning of s 6 of the Statute of Monopolies 1624[40] in relation to electronic gaming machines. 

That is not to say there have been patents granted where the inventor was identified as a human but the inventive contribution was AI. There would have to be some compelling evidence that the inventor was not entitled.

Designs

There appear, at the time of writing this article, that there are no Australian cases specifically involving a design registered under the Designs Act 2003 (or seeking registration) that was created by artificial intelligence. The regimes of the Designs Act and the Copyright Act do have “overlap provisions” relating to the conversion of a 2D plan/drawing to a 3D object. The policy consideration being not to allow copyright protection which is quite a long time to industrial designs, such as a chair.

Like the Copyright Act which identifies the “author” as the first position assumed, the prima facie position under the Designs Act is the human designer. In Led Technologies[41] the Primary Judge asked:

“Who then, in fact, is entitled to be entered as the registered owner of the Designs? Section 13(1) of the 2003 Designs Act lists the persons ‘entitled to be entered on the Register as the registered owner of a design that has not yet been registered. The list is: (a) the person who created the design (the designer).’”

On appeal,[42] one of the issues was whether the registration of the designs in suit should be revoked under the Designs Act s 93, because LED Technologies was not solely entitled to registration of the Designs because another person also had a co-entitlement. The entitlement issue extends to the registered owner being entitled but with another or others.[43] Similarly, there are grounds to revoke the design where the registered owner was not at all an entitled person.[44]

That is not to say there have been design registration has not been given where the designer was identified as a human, but the novel contribution was AI. There would have to be some compelling evidence that the designer was not entitled.

Some examples of the international treatment of the issue.

Patents

South Africa’s Companies and Intellectual Property Commission (CIPC) registered a patent for the DABUS AI system in 2021, naming the AI as the inventor, marking a world first. This happened because South Africa’s patent system primarily performs formal examination, not substantive examination, allowing the patent to be granted after meeting formalities, even though the AI system was not a natural person.

Dr. Thaler was designated as the owner of the patent in South Africa. This was a world first, however it is the process in South Africa which involves a lower level of scrutiny of applications, that is suggested to have allowed this registration.[45]  

On December 31, 2024, the China National Intellectual Property Administration (CNIPA) released the Guidelines for AI-related Invention Applications (Test Implementation), addressing several legal aspects, including inventor qualification/identification, for Artificial Intelligence related (AI-related) patent applications.

China does not recognise non-human inventors. The Guidelines state: Chapter 2 Determination of Inventor Identity: The inventor’s signature must be a natural person. The inventor should make a creative contribution to the substantive characteristics of the invention.[46]

Neither the UK, US nor EU patent Offices accepted the DABUS claimed invention.[47]

Copyright

In China the attribution of copyright protection to AI generated content is a “hot topic”. CNIPA issued the following statement earlier this year:

“Discussions on intellectual property protection in the field of artificial intelligence have become an inescapable topic across industries both at home and abroad. This not only reflects that the technological revolution is continuing globally, but also that the relevant challenges are intensifying.” [48]

In addition, it referred to a decision in China upholding copyright in an AI assisted artistic work and the jurisprudence for such a decision:

“However, as AI tools such as Deep-Seek have begun creating poetry, drafting reports, drawing pictures, editing videos and composing music, a legal conundrum has emerged regarding the copyright ownership for AI-generated content. The question remains: Does the copyright belong to the users, the technology developer, or the data provider?

In short, whether an image or novel generated by AI can be copyrighted mainly depends on whether the content is filled with creativity or originality, which needs to be analyzed case by case.

In November 2023, Beijing Internet Court identified a picture, generated by the text-to-image software Stable Diffusion, as an artwork under copyright protection because of the originality and intellectual input of its human creator. It was the first verdict of its kind in China.

The court said that the ruling was made based on the way that the AI user continuously added prompts and repeatedly adjusted the parameters to come up with a picture that reflected his aesthetic choice and personalized judgement.

The court further explained that assigning generative AI content a legal status under certain circumstances in this case aims to encourage people to innovate with the new technology and advance the development of this emerging industry.

But when a user asks AI to write a speech for a school’s opening ceremony, such generative content will be difficult to be defined as a work protected by law. This is because the instructions given by the user to AI are merely everyday, simple and common words and phrases, lacking originality.”[49]

The first approach to recognising computer generated content as a work was in the UK. In the Copyright, Designs and Patents Act 1988 (UK), the following provision was included:

9(3) In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

Section 9(3) only applied if the work was generated without any human originality. Its inclusion has been attributed to the lobbying by the British Computer Society (BCS) to address concerns that computer-generated works might lack human authorship and therefore fail to qualify for copyright protection under traditional rules.[50]

The BCS focused on computer-generated works made by corporations, such as telephone directories; graphical representations of statistical data; the financial pages of newspapers; tax payment strategies; seismic and geological maps that indicate potential sites for oil exploration; weather forecast maps; and enhanced satellite images.[51]

Parish observed that s 9(3) has rarely been used in practice, partly due to courts’ willingness to extend traditional copyright principles to highly automated works. The courts, not distancing themselves too far from the human author, consider that the computer as a tool is a robust and long-standing principle of copyright law.[52] In addition, the provision’s unclear wording and lack of scrutiny during its enactment have led to legal contradictions.[53]

The author’s conclusion is that the courts reflect the sentiment that a genuine computer-generated work without a human author does not justify protection and accordingly, the current government could repeal s 9(3) without causing too much damage.[54]

Consistent with Parish’s conclusions that the inclusion of s 9(3) was poorly drafted[55] and the product of BCS’ lobbying, the UK Intellectual Property Office in December 2024 sought consultation on views on copyright and AI issues (IPO consultation). The grave concern is that:

(a) the application of UK copyright law to the training of AI models is disputed.

(b) rights holders are finding it difficult to control the use of their works in training AI models and seek to be remunerated for its use.

(c) AI developers are similarly finding it difficult to navigate copyright law in the UK, and this legal uncertainty is undermining investment in and adoption of AI technology.[56]

The IPO consultation refers to the criticisms of s 9(3). Firstly, the provision has a contradiction which leads to uncertainty. This is because the provision applies only to literary, dramatic, musical, and artistic works which are original. The modern legal test for originality is that a work must be an “author’s own intellectual creation” which is the expression of their creative choices and reflects their “personal touch”. This is a test linked to human qualities but s 9(3) only applies “without a human author”.[57]

Secondly, it is argued computer generated works as a separate category is not needed because it provides no incentive, it is unclear and morally only human-created works deserve copyright protection.

The IPO Consultation asks whether section 9(3) of the Copyright, Designs and Patents Act 1988 should be retained, amended or removed.[58] The UK government has been seeking comment on its plan to permit text and data mining (TDM) for commercial purposes (the current TDM exception in the Copyright, Designs and Patents Act 1988 only pertains to non-commercial research. On 31 July 2025, the UK Law Commission, issued a Discussion Paper titled “AI and the Law”. In the Discussion Paper the Commission explores the legal challenges posed by the rapid development and deployment of AI.[59]

The Discussion Paper notes the controversy with copyright rights holders:

“The issues with copyright and AI systems are perhaps the best known and discussed legal issues regarding AI. Given the scale of AI training and AI use, the threat of copyright infringement (in both training and application) is of particular concern to creative groups and creative workers, as evidenced by the recent campaign in the UK on copyright and AI. A Government consultation paper published in December 2024 on copyright and AI has been controversial because it proposes granting a broad data mining exception to copyright (allowing data mining on copyright protected works without rights holders’ permission), unless a copyright holder were expressly to reserve their rights.”[60]

The Discussion Paper also noted the activity of the EU as follows:

“In preparation for provisions regarding general purpose AI models applying from 2 August 2025, the EU has also published a General Purpose AI Code of Practice. Among other things the Code of Practice provides guidance to help industry comply with certain AI Act requirements and to manage system risks of general-purpose AI.”[61]

The official version of the Artificial Intelligence Act 2024 (EU) (the EU AI Act) was published on 13 June 2024.[62] A high level summary is available.[63] The majority of obligations fall on providers (developers) of high-risk AI systems being those that intend to place on the market or put into service high-risk AI systems in the EU, regardless of whether they are based in the EU or a third country.[64]

The EU AI Act also places obligations on users who are natural or legal persons that deploy an AI system in a professional capacity, not affected end-users. These users (deployers) of high-risk AI systems have some obligations, though less than providers (developers). This applies to users located in the EU, and third country users where the AI system’s output is used in the EU.[65] The EU AI Act sets out in Chapter III, Article 5 the prohibited types of AI systems, which include:

• deploying subliminal, manipulative, or deceptive techniques to distort behaviour and impair informed decision-making, causing significant harm.
• exploiting vulnerabilities related to age, disability, or socio-economic circumstances to distort behaviour, causing significant harm.
• social scoring, i.e., evaluating or classifying individuals or groups based on social behaviour or personal traits, causing detrimental or unfavourable treatment of those people.

The European Union’s Artificial Intelligence Act (Regulation (EU) 2024/1689)[66] (the EU AI Regulation, establishes harmonised rules for the development, marketing, and use of AI systems within the EU. The purpose of the EU AI Regulation is stated as being:

“… to improve the functioning of the internal market by laying down a uniform legal framework in particular for the development, the placing on the market, the putting into service and the use of artificial intelligence systems (AI systems) in the Union, in accordance with Union values, to promote the uptake of human centric and trustworthy artificial intelligence (AI) while ensuring a high level of protection of health, safety, fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union (the ‘Charter’) …”

As stated above, certain AI practices are banned, such as manipulative techniques, social scoring, and unauthorized biometric identification in public spaces. The EU AI Act also refers and requires compliance with the “Copyright Directive”.[67] The Directive aims include:

• seeking to harmonise copyright rules by establishing uniform rules for copyright exceptions, limitations, and licensing practices to ensure a well-functioning digital marketplace.[68]
• introducing mandatory exceptions for research organizations and cultural heritage institutions to perform Text and Data Mining (TDM)[69]on content they have lawful access to, promoting innovation and research.[70]
• requiring platforms like YouTube to obtain licenses for user-uploaded copyrighted content and introduces liability mechanisms for unauthorized content.[71]
• granting press publishers rights over the online use of their publications by information society services, excluding private or non-commercial uses and hyperlinking.[72]
• ensuring appropriate and proportionate remuneration for creators, transparency in revenue reporting, and mechanisms for contract adjustments and revocation in cases of non-exploitation.[73]

There is a view that the current copyright models are not equipped to handle the AI wave. Here are some international proposals.

• AI developers must obtain licenses to use copyrighted material for training AI models, potentially with a statutory license fee or a levy on AI developers to compensate creators for market and income losses.[74]
• Allow copyright holders to opt out of having their works used for AI training, similar to the TDM exceptions in some countries, but with more standardised and machine-readable technical formats for clearer implementation.[75]
• Encourage the development of voluntary “data scraping codes of conduct” to establish clear guidelines for AI data aggregators and users.[76] 
• In relation to AI generated works and authorship:
  • To re-evaluate human authorship requirements in copyright law to acknowledge human contributions to AI-assisted works and determine when AI-generated content meets the criteria for copyright protection.[77] 
  • Consider joint authorship models that recognize both human creators and the collaborative nature of AI-generated content.[78] 
  • Focus on originality and emphasise the human contribution and “independent intellectual effort” in the creation of works, rather than AI generation, as a crucial factor for copyright protection.[79] 

It is this last point of view that the author considers resonates more accurately with the rationale for IP rights. In the spectrum of human contributions to IP attracting rights, it is possible for minimal human input to have fully AI produced results. However, the human input in either defining the parameters leading to those results or the human element must align with the requirements of the statutory regime for entitlement to that IP right.

[1] JT International SA v Commonwealth of Australia [2012] HCA 43 [36] per French CJ. Anne Fitzgerald, Dimitrios Eliades and Rami Olwan, Intellectual Property – Principles and Practice (Thomson Reuters, Lawbook Co., 1st ed, 2022) 36-45; Anne Fitzgerald and Brian Fitzgerald, Intellectual Property – in principle (Thomson, Lawbook Co., 1st ed, 2004) [8.90] page 728.

[2] Such an entitlement is recognised in Art 27(2) of the Universal Declaration of Human Rights which states: “Everyone has the right to the protection of themoral and material interests resulting from any scientific, literary or artisticproduction of which he is the author.”

[3] Australian Government, Productivity Commission “Intellectual Property Arrangements: Productivity Commission Inquiry Report – No. 78”, 23 September 2016, pp 61 and 63 – at: <https://www.pc.gov.au/inquiries/completed/intellectual-property/report/intellectual-property.pdf>.

[4] Anne Fitzgerald, Dimitrios Eliades and Rami Olwan, Intellectual Property – Principles and Practice (Thomson Reuters, Lawbook Co., 1st ed, 2022) 36-45; Anne Fitzgerald and Brian Fitzgerald, Intellectual Property – in principle (Thomson, Lawbook Co., 1st ed, 2004), 10-12.

[5] Anne Fitzgerald, Dimitrios Eliades and Rami Olwan, Intellectual Property – Principles and Practice (Thomson Reuters, Lawbook Co., 1st ed, 2022) 484; <https://plato.stanford.edu/entries/intellectual-property/>.

[6]“Letters Patent” (from the Latin “literae patentes” meaning “letters that lie open”) were so called because the seal hung from the foot of the document.  They were addressed “To all to whom these presents shall come” and could be read without breaking the seal, as opposed to “letters close”, which were addressed to a particular person who had to break the seal to read them. See Gageler J in Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41, referring to Blackstone, “Commentaries on the Laws of England” (1766), bk 2, ch 21 at 346.

[7] See Bristol-Myers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316, Finkelstein J at [101]-[110] for discussion of the early history of the patent system in England.

[8] United Kingdom Government, Intellectual Property Office, “Artificial Intelligence and Intellectual Property: Call for views – Patents”, 7 September 2020 – at < https://www.gov.uk/government/consultations/artificial-intelligence-and-intellectual-property-call-for-views/artificial-intelligence-call-for-views-patents>

[9] Christine MacLeod “Inventing the industrial revolution: The English patent system, 1660 – 1800”, Cambridge University Press, 1988.

[10] 8 Anne c 19.

[11] The term of 50 years from the life of the author was extended to 70 years as part of the Australia United States Free Trade Agreement (AUSFTA). See AUSFTA Chapter 17 – Intellectual Property Rights  Article 17.4subclause 4(a):  <https://www.dfat.gov.au/about-us/publications/trade-investment/australia-united-states-free-trade-agreement/Pages/chapter-seventeen-intellectual-property-rights>.

[12] The Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) is Annex 1C to the Marrakesh Agreement establishing the World Trade Organization, concluded at Marrakesh, Morocco on 15 April 1994, at <https://www.wto.org/english/docs_e/legal_e/legal_e.htm>

[13] Trademark Law Treaty; adopted 27 October 1994, entered into force 1 August 1996 – see

<https://wipolex.wipo.int/en/text/294358>. 

[14] See Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273, French J at [36].

[15] Urban Alley Brewery Pty Ltd v La Sirène Pty Ltd [2020] FCAFC 186, Full Federal Court (Middleton, Yates and Lee JJ) at [106].  A composite mark cannot generally be disentangled in order to base an infringement on part of the trade mark, such as the words alone: Crazy Ron’s Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196, Moore, Sackville and Emmett JJ at [102].

[16] The first designs legislation was the Designing and Printing of Linens, Cotton, Calicoes and Muslins Act 1787 (27 George III c.38) which conferred a copyright-like protection on new and original patterns printed on textiles such as linens, cottons, calicos and muslins.

[17] See in particular, Klaus Schwab, “The Fourth Industrial Revolution”, Penguin Radom House, 2016; and Klaus Schwab and Nicholas Davis, “Shaping the Future of the Fourth Industrial Revolution: A Guide to Building a Better World”, Penguin Random House, 2018.  See also World Economic Forum, “Fourth Industrial Revolution” at <https://www.weforum.org/focus/fourth-industrial-revolution>.

[18] Klaus Schwab, “The Fourth Industrial Revolution”, Penguin Radom House, 2016, 11-12:

<https://law.unimelb.edu.au/__data/assets/pdf_file/0005/3385454/Schwab-The_Fourth_Industrial_Revolution_Klaus_S.pdf>; Similar views of the Fourth Industrial Revolution are expressed at <https://www.weforum.org/focus/fourth-industrial-revolution/>; <https://ied.eu/project-updates/the-4-industrial-revolutions/>.

[19] Klaus Schwab, “The Fourth Industrial Revolution”, Penguin Radom House, 2016, 11-12:

<https://law.unimelb.edu.au/__data/assets/pdf_file/0005/3385454/Schwab-The_Fourth_Industrial_Revolution_Klaus_S.pdf>.

[20] Copyright Act Part IX Division 2.

[21] Copyright Act s 35(2).

[22] Copyright Act s 10.

[23] Copyright Act s 35(6).

[24] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149 (Keane CJ, Perram and Yates JJ).

[25] Phone Directories [126] per Perram J.

[26] Phone Directories [133] per Yates J.

[27] Phone Directories [137] per Yates J.

[28] [2021] FCA 879.

[29] Named after the AI system “Device for the Autonomous Bootstrapping of Unified Science”

[30] World Intellectual property Organisation, Standing Committee on the Law of Patents, 35th Session, Geneva, 16-20 October 2023 “Artificial Intelligence (AI) and Inventorship” [122].

[31] Commissioner of Patents v Thaler [2022] FCAFC 62 (Allsop CJ, Nicholas, Yates, Moshinsky and Burley JJ, 13 April 2022) [53] and [54].

[32] Commissioner of Patents v Thaler [2022] FCAFC 62 (Thaler Full Court).

[33] Thaler Full Court [86].

[34] Thaler Full Court [89].

[35] [2001] FCA 501; 108 FCR 422 [21] (Whitlam, Sundberg and Dowsett JJ).

[36] [2001] FCA 501; 108 FCR 422 [107].

[37] Commissioner of Patents v Thaler [2022] FCAFC 62 [119].

[38] Transcript of the Special Leave Hearing, [2022] HCA Trans 199, [625].

[39] Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents[2022] HCA 29.

[40] Patents Act 1990 (Cth) s 18(1)(a).

[41] Led Technologies Pty Ltd v Elecspess Pty Ltd [2008] FCA 1941; (2008) 80 IPR 85 per Gordon J.

[42] Keller v LED Technologies Pty Ltd (2010) 185 FCR 449 (Emmett, Besanko and Jessup JJ).

[43] Designs Act s 93(3)(c).

[44] Designs Act s 93(3)(b).

[45] Inventa Intellectual property < https://inventa.com/ip-news-insights/opinion/artificial-intelligence-inventor-brief-exploration-south-african> : “Unlike some other patent offices, South Africa’s patent office does not undertake substantive examination of patent applications. Instead, it focuses on ensuring that applications comply with the necessary formalities.”; similarly Managing IP gives the same explanation:<https://www.managingip.com/article/2a5bqo2drurt0bxl7ab1q/dabus-south-africa-issues-first-ever-patent-with-ai-inventor>.

[46] Statement 25 April, 2025: <https://www.cnipa.gov.cn/art/2024/12/31/art_66_196988.html> translated.

[47] This is also the position as at 2023 of Brazil, Canada, Germany, New Zealand and the Republic of Korea: see WIPO Standing Committee on the Law of Patents, Thirty Fifth Session, Geneva, 16 October 2023 “Artificial Intelligence (AI) and Inventorship< www.wipo.int/edocs/mdocs/scp/en/scp_35/scp_35_7.pdf> at [120] to [157].

[48] < https://english.cnipa.gov.cn/art/2025/4/25/art_3090_199316.html>.

[49] < https://english.cnipa.gov.cn/art/2025/4/25/art_3090_199316.html>.

[50] James Parish, “Time to Repeal Section 9(3) of the Copyright, Designs and Patents Act 1988: New insights from the lobbying and drafting history behind the infamous United Kingdom computer-generated works regime”, Kings College London, Intellectual Property Quarterly, 2025, 5.

[51] James Parish, “Time to Repeal Section 9(3) of the Copyright, Designs and Patents Act 1988: New insights from the lobbying and drafting history behind the infamous United Kingdom computer-generated works regime”, Kings College London, Intellectual Property Quarterly, 2025, 49.

[52] James Parish, “Time to Repeal Section 9(3) of the Copyright, Designs and Patents Act 1988: New insights from the lobbying and drafting history behind the infamous United Kingdom computer-generated works regime”, Kings College London, Intellectual Property Quarterly, 2025, 50.

[53] James Parish, “Time to Repeal Section 9(3) of the Copyright, Designs and Patents Act 1988: New insights from the lobbying and drafting history behind the infamous United Kingdom computer-generated works regime”, Kings College London, Intellectual Property Quarterly, 2025, 32.

[54] James Parish, “Time to Repeal Section 9(3) of the Copyright, Designs and Patents Act 1988: New insights from the lobbying and drafting history behind the infamous United Kingdom computer-generated works regime”, Kings College London, Intellectual Property Quarterly, 2025, 50.

[55] James Parish, “Time to Repeal Section 9(3) of the Copyright, Designs and Patents Act 1988: New insights from the lobbying and drafting history behind the infamous United Kingdom computer-generated works regime”, Kings College London, Intellectual Property Quarterly, 2025, 2.

[56] IPO Consultation, Ministerial forward: < https://www.gov.uk/government/consultations/copyright-and-artificial-intelligence/copyright-and-artificial-intelligence>.

[57] IPO Consultation: < https://www.gov.uk/government/consultations/copyright-and-artificial-intelligence/copyright-and-artificial-intelligence> [137].

[58] IPO Consultation D2 Policy options: < https://www.gov.uk/government/consultations/copyright-and-artificial-intelligence/copyright-and-artificial-intelligence> [139]-[155].

[59] Available at <Artificial Intelligence and the Law: a discussion paper – Law Commission> or < Microsoft Word – 2025-07-29 – Column AI Discussion Paper (v4)>.

[60] Discussion Paper at 20.

[61] Referring to the European Commission, General-Purpose AI Code of Practice (2025), https://digital-strategy.ec.europa.eu/en/policies/contents-code-gpai. The Code of Practice is split into three chapters: Transparency, Copyright, and Safety and Security.

[62] < https://artificialintelligenceact.eu/ai-act-explorer/>.

[63] < https://artificialintelligenceact.eu/high-level-summary/>.

[64] < https://artificialintelligenceact.eu/high-level-summary/>.

[65] < https://artificialintelligenceact.eu/high-level-summary/>.

[66] Issued in the Official Journal of the EU on 13 June 2024.

[67] DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC available at: <https://www.wipo.int/wipolex/en/legislation/details/18927>.

[68] Directive – Article 1 at L.130/112.

[69] TDM is the computational process of analysing large amounts of text or data to identify patterns, trends, and relationships; “Text and data mining is the process of copying existing electronic information, for instance, articles in scientific journals and other works, and analysing the data they contain for patterns, trends and other useful information”: < https://guides.library.uwa.edu.au/textmining>. 

[70] Directive – Item 14 at L.130/95

[71] Directive – Item 69 at L.130/108.

[72] Directive – Article 15 at L.130/118.

[73] Directive – Article 18 at L. 130/121.

[74] Journal of Innovation & Knowledge Volume 9, Issue 4, October–December 2024:

<https://www.sciencedirect.com/science/article/pii/S2444569X24001690#:~:text=The%20consideration%20of%20joint%20authorship,this%20new%20AI%2Ddriven%20context> Conclusion.

[75]<https://www.dentons.com/en/insights/articles/2025/january/2/the-uks-new-ai-copyright-consultation-a-path-to-clarity-or controversy#:~:text=The%20consultation%20also%20seeks%20views,%22do%20not%20train%22%20registries>.

[76] Intellectual Property issues in AI trained on Scraped Data, February 2025, No.33:

<Chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.oecd.org/content/dam/oecd/en/publications/reports/2025/02/intellectual-property-issues-in-artificial-intelligence-trained-on-scraped-data_a07f010b/d5241a23-en.pdf>.

[77] Arts Law Centre, “Artificial Intelligence (AI) and Copyright”, <https://www.artslaw.com.au/information-sheet/artificial-intelligence-ai-and-copyright/#:~:text=As%20a%20general%20rule%2C%20a,Law’s%20Information%20Sheet%20on%20Copyright.> undated.

[78] Journal of Innovation & Knowledge Volume 9, Issue 4, October–December 2024:

<https://www.sciencedirect.com/science/article/pii/S2444569X24001690#:~:text=The%20consideration%20of%20joint%20authorship,this%20new%20AI%2Ddriven%20context> Adapting Copyright and IP in the AI Era.

[79] Arts Law Centre, “Artificial Intelligence (AI) and Copyright”, <https://www.artslaw.com.au/information-sheet/artificial-intelligence-ai-and-copyright/#:~:text=As%20a%20general%20rule%2C%20a,Law’s%20Information%20Sheet%20on%20Copyright.> undated.