Computer-generated works are works generated by a computer program. Working out who the author of computer-generated work is, and therefore who owns the intellectual property, can be challenging. It is an area of law fraught with potential difficulties and uncertainties.
Under the, Designs and Patents Act 1988, work produced by a computer, or with the assistance of one, can be afforded copyright protection. The copyright is owned by the person who enabled the generation or creation of the work.
Identifying the authorship of the work is not always simple: generally, for copyright to subsist in a work there must be a human author. On the face of it, this means that a computer, being non-human, cannot be the author of a work. However, human skill is required to enter information into a program in order to achieve a specific result.
Importantly, where the work is created by an employee in the course of employment, it is the employer and not the employee who owns the copyright.
Under s9(3) of the Act (which concerns literary, dramatic, musical or artistic work that has been computer-generated), the author is the person who made the necessary arrangements to create the work, such as the program author. But what about other computer-generated works?
These are probably the easiest works to define, and include documents written using a word processor, architectural plans created using computer aided design (CAD), and accounts done on a spreadsheet. Here, the computer program used is merely a tool used to assist in producing the final result, in the same way that a pen is a tool used when writing a letter. As the pen cannot be said to be the author of the letter, neither can the computer program.
Consequently, these works are not computer-generated, and it is the person who uses the computer to create the works who is recognised as the author.will subsist in works produced using a computer as soon as the work is saved on a computer disk or printed off to create a hardcopy.
These are literary, dramatic, musical or artistic works which under s178 of the 1988 Act have no human author. For example, weather forecasts are often generated by a computer which is in direct communication with a weather satellite. Little human skill or input is required beyond physically turning the computer on. Neither can the operator influence the form or content of the output. Who, then, is the author of the generated work?
In the important case of Nova Productions Ltd v Mazooma Games Ltd , it was held that individual frames shown on a screen when playing a computer game where computer-generated artistic works. The author of these frames was the person who had devised the rules and logic used to create them. The player of the game was not the author, not having contributed any artistic skill or labour. Although seemingly satisfactory on the facts of the case, the decision does have its limitations.
Intermediate works fall somewhere between works created using a computer and works created by a computer. Authorship can be considered as the result of the skill and effort of the person using the computer, the person who created the program being used, and the person who created any database that the program might use. A specialist music synthesiser that creates music using basic, but expert, user input, and support databases, would fall under this category.
The bulk of specialist, professional software would likely be classified intermediate works, but that does not assist us in answering the question of authorship of the finished product. The user, the programmer and the database provider could all have a legitimate claim to authorship. Alternatively, they could be regarded as joint-authors.
Since the Act offers little guidance and there is little case law at present, the best option in these cases is to clarify issues of authorship, as opposed to ownership, in aor licence.
Nicola is a dual qualified journalist and non-practising solicitor. She is a legal journalist, editor and author with more than 20 years' experience writing about the law.
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