Earlier this year, you may have seen the “monkey selfie” story in the news again, with the United States District Court ruling that a wild macaque cannot own copyright in the photos it took of itself using a camera left lying around. (The camera was owned by nature photographer David Slater.) See Order, Naruto, et al. v. David John Slater, et al., Case No. 15-cv-4324 (N.D. Cal., Jan. 28, 2016).
If there was no human involvement in the photograph, the outcome in Australia would almost certainly be the same. The Australian Copyright Act defines an “author” to be, in the case of a photograph, the person who took the photograph. If the author is not a person, it’s quite clear that copyright will not subsist.
While the monkeying around resulted in an amusing news story, the legal consequence is that the owner of the camera used by the macaque may not be able to profit from the monkey selfie photos. This raises the broader question of how to monetise or protect works not created by humans. What if the “author” of the work is not a monkey, but instead a droid, drone or other automated vehicle?
The Australian Copyright Act protects “original” works. In a copyright sense, “originality” is a concept that couples authorship (i.e., by a person) with some skill or effort on the part of that person to directly bring the work into existence. The existence of copyright is not concerned with artistic merit (the market will determine how much a work is worth), but the author must have used his or her personal effort or skill to bring the work into existence. In the case of a photo, for example, it requires the author to frame the subject matter and press the shutter. That is, it’s not “intellectual” property without the work having originated with the author. Ownership of copyright then flows from the identity of the author(s). The Act does not grant copyright ownership in Australia merely to the person (or corporation) whose camera was used, or who owned the drone with the camera on board. Therefore, works created automatically by a machine (or by a monkey) with no human input will not meet the test and will find themselves with no copyright owner.
Some cases which look at authorship of the work in question have started to flow through the Australian courts in recent years. One example is the Full Federal Court ruling in 2010 that the White Pages telephone directory, which contains an alphabetical list of telephone numbers, did not originate from an individual author (or team of authors), but was the result of the operation of an automated process of a computer system. Any individuals who may have been involved in the production of the directory did not have any part in compiling, selecting, arranging or presenting the data that was compiled to form the directory, which means that the work did not originate with them. Therefore, copyright was found not to subsist in the directory.
In another case, again the Full Federal Court found in 2011 that a process contained in source code to automatically generate documents from a central database of information did not make the authors of the source code the authors of the documents which the software automatically generated. That’s a bit like saying piloting the drone is not enough by itself to own copyright in the photos the on-board camera takes, but if the pilot also aims the camera at the subject matter and takes the photograph, it probably will be.
Where this might become a little difficult is where humans have some element of direction, but do not control the entire production process. In the case of the monkey selfie, what if the camera’s owner set up the camera, framed the shot, got the focus and other settings right, and only then the monkey came along and pressed the shutter? Assessing this will be a matter of degree as to whether the human is an author of the work.
A broader practical question will be how to distinguish between automated works, and those which have had human input, as it might not be possible to determine this from the work itself.
It will be difficult to protect works created without the input of any human, but which might nonetheless have commercial and industrial value. Aerial photos taken by satellites or drones, data output by a remote monitoring station, automated aggregation of data and lists, reports generated by robots searching the Internet – these all might be examples of things copyright will not protect if no human input is involved. Perhaps they can be protected by contract and confidentiality, although they will not be confidential if the information (or copies of the works) are already in the public domain.
The same efficiency and technological progress which allows the robots to take over the world is also the thing that makes it all the more difficult to legally protect their output. It’s not “intellectual” property without human intellectual input. Which makes it all a bit more serious than mere monkey business.