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You Won’t Own Copyright in Photos Taken with Google’s New Camera

5 minute read

Google has introduced a new product which poses an interesting question: who owns copyright when a robot takes a photo?

The new product (launched in America but not yet in Australia), named the Google Clip, resembles a tiny camera, except for the fact that, instead of users taking photos, an AI program in the Clip uses machine learning to judge when “interesting moments” happen in its field of view, based on factors such as the appearance of faces it recognises, at which point it will automatically take a photo.

It’s only a matter of time until a Clip captures a photograph that could attract significant licence fees for whoever (or whatever) owns its copyright. But will it be the owner of the Clip, Google, or the AI itself who is in for a big pay day? Under Australian law the answer, surprisingly, is none of them.

Copyright in computer-generated works under Australian law

Under the Australian Copyright Act, subject to certain exceptions, copyright in an artistic work is owned by the author, which, in relation to a photograph, is “the person who took the photograph”. Therefore, as simple as that, the owner of a Clip (or similar product) which takes photos by AI will not own copyright under Australian law, as they are not the person who “took” the photos.

Unfortunately for robots everywhere however, neither will the AI. As you might have noticed in the above quote, it is the person who took the photo who owns the copyright. While “person” is not defined in the Copyright Act, it is defined in the Acts Interpretation Act (which governs the interpretation of legislation), which provides that it includes an individual, body politic, or body corporate but not, by implication, a machine.

Therefore, the answer is that, under Australia law, no-one will own copyright in photos taken by AI. The photos simply will not be protected by copyright in Australia, as they do not have an “author” within the meaning of the Copyright Act. The Australian Federal Court reached a similar conclusion when it ruledthat information sheets arranged by a computer program did not attract copyright protection.

Amended laws to deal with computer-generated works

Other jurisdictions, including New Zealand, India, Hong Kong, Ireland, and the UK, have amended their copyright laws to provide that copyright in a computer-generated work (defined as a work where it is the computer who had the “creative input”) is owned by “the person by whom the arrangements necessary for the creation of the work are undertaken”.

Arguably, this would be the owner of the Clip, as it is the owner who has arranged for the subject matter of the photograph to be taken and set up the Clip so that this subject matter could be captured. However it may be that Google, as the owner of the AI program which actually took the photographs, will own copyright in all photos taken by Clips.

The American “monkey selfie” case

Similar issues arose in America in the notorious “monkey selfie” case, where a nature photographer set up cameras so that monkeys might take photos of themselves. When many monkeys eventually did, and one image in particular went viral, the question was raised of who owned the copyright in these photographs under American law.

The case, which included the interesting development of PETA trying to sue the photographer on behalf of a photographed monkey (leading to a heated courtroom battle over which exact monkey actually took the photograph), resulted in the US Copyright Office issuing guidelines which included what was surely an unprecedented declaration that a “photograph taken by a monkey” cannot be protected by copyright, as it does not have a human author.

The guidelines also included the statement that “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author”. This would likely apply to photos taken by the Clip under American law, meaning that they would not be protected by copyright. If setting up camera equipment and creating circumstances where monkeys will take photos of themselves is not enough to establish authorship, then it seems very unlikely that merely buying and placing a Clip would be sufficient.

Future directions for Australian law

Refusing to afford computer-generated works copyright protection is likely to become more and more problematic, as artificial intelligence develops at a mind-boggling rate and we start seeing artistic works (like paintingsmusic, and even novels) created by machines.

Eventually, Australian lawmakers will have to address this issue. This may mean adopting an approach similar to that of the UK and New Zealand, whereby copyright ownership is granted to (most likely) the creator/owner of the computer program which authored the work. The alternate approach of granting copyright ownership to computer programs would of course be radical, but is certainly not outside the realm of possibility as technology continues to develop.

Perhaps it’s a good thing that this future still seems far away, however. A Skynet self-funded by copyright royalty payments is a terrifying thought indeed.