Generative Artificial Intelligence and UK Copyright: Pastiche or Farce? - OIPRC Seminar Series

Artificial Intelligence (AI) is the latest ‘game changer’ in copyright law. We say the latest because the history of copyright features the repeated emergence of new technologies that were predicted to not only disrupt existing business models but to create (or reveal) sizeable gaps and inadequacies in the law. We put game changer in quotation marks for a number of reasons, including because predicted economic and social impacts were not always borne out in practice, and because many legal concepts – including in copyright law – can readily adapt or be adapted to new technologies. Is AI to the 2020s what three-dimensional printing was to the 2010s, peer-to-peer sharing was to the 2000s, or the protection of computer software was to the 1980s? Or is there more to AI?

In this presentation our focus will be on how limitations and exceptions in copyright law apply to AI; and what AI teaches us about limitations and exceptions. One such limitation is the idea/expression dichotomy, as expressed through the infringement test of ‘copying’. The trite position is that mere ideas are not protected, and that things like artistic style and technique are unprotectable elements of a work. This would mean that asking AI to create an image ‘in the style of Picasso’ is not problematic. But is this right, and how far should it go? Is there no harm, economically or morally, to Picasso if AI can produce thousands of artworks imitating his style every day? Similar questions could be raised about the distinct style of any painter, writer or musician. Does the idea/expression dichotomy change depending on the nature of the work in question?

We will also consider fair dealing for the purpose of pastiche, which is found in section 30A of the Copyright, Designs and Patents Act 1988. Pastiche has a dual definition, applying to both (1) imitation of the style of another artist, genre or work, and (2) the use or assembly of pre-existing works in new works. One question is what is added by the imitation limb of pastiche. Is it a vestigial feature from the understanding of pastiche in art theory, or does it have important work to do? We will also ask whether defendants might point to the assembly limb of pastiche to help with arguments that the use of AI does not infringe copyright in the works used in training.