The UK Intellectual Property Office’s Consultation on Computer-Generated Works

Patrick Goold

The UK Copyright, Designs and Patents Act 1988 contains an odd section concerning ‘computer-generated works’. Section 9(2) of the Act states that when a work has no ‘human author’ and is generated by a computer, the work ought to be protected by copyright for 50 years, with the copyright owned by the person who made the necessary ‘arrangements’ for the work’s generation.

Copyright lawyers have debated the interpretation of section 9(2) of the Act. In a previous article (The Curious Case of Computer-Generated Works under the Copyright, Designs and Patents Act 1988), I argued that the section is contradictory and unnecessary. As the law stands, it is likely that computer-generated works would need to be ‘original’ to be protected by copyright law. But ‘originality’ is defined in terms of human authorship and characteristics (such as personality, judgment, skill, and labour). As a result, section 9(2) is contradictory in that it provides copyright protection to works without a human ‘author’ but will only provide protection if the works involve human-supplied originality. Furthermore, section 9(2) is unnecessary because anyone who supplies the necessary originality would be entitled to claim full copyright (i.e., economic and moral rights for life plus 70 years) in the normal manner.  Overall, the provision is quite meaningless if subject to an originality requirement.

In 2022, the UK Intellectual Property Office (IPO) launched a consultation on AI and IP. In relation to section 9(2), the IPO have decided to make no changes to the law. While the IPO acknowledged the apparent contradictory nature of the provision, they concluded that there is no evidence that the provision is actually harmful. Given the possibility that changes may usher in unintended consequences, the IPO has decided to leave section 9(2) as it is, for now.

While the IPO’s position is a conservative one, I broadly think it is sensible. Of course, there is no evidence that section 9(2) is harmful. The main problem with section 9(2) is, if it is subject to the originality requirement, then it is simply pointless and has no meaningful effect. It would be rather strange if the provision had any negative consequences in such circumstances. The only way the provision could potentially start causing real harm would be if courts were to extend its protection to non-original works as well as original ones. Until that point, then section 9(2) is rather like a benign skin mole: entirely unharmful and the only reason to remove it would be cosmetic.