The G+T partner and intellectual property guru spoke to the ABC Radio Law Report on the fundamental characteristics of copyright in certain types of documents. Using an unusual example of a case where a nature photographer who had taken photos of monkeys, tried to get the photos that one of the monkeys had taken copyrighted. Was the “author” of the material the monkey playing with the camera, or was it the owner of the camera? Can an animal, or a machine, have a copyright on the works of art it generates? Or, can only humans be considered “authors”? He explores this and other intellectual property conundrums in this fascinating interview.
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Damien Carrick: A few years ago there was a copyright dispute between British photographer David Slater and a monkey, a crested macaque named Naruto. Michael Williams, a partner at Gilbert + Tobin, is one of Australia’s leading intellectual property lawyers.
Michael Williams: It was quite an interesting case, because he was a nature photographer who took pictures of various crested monkeys. And while doing so, one of the curious monkeys took the camera he had set up on a tripod to take pictures and started using that camera, and seems to have taken some of the pictures himself.
Damien Carrick: If I understand correctly, he set up his camera – it was in Indonesia – he set up his camera with a remote shutter to allow the monkeys to come up to the camera and look at each other in the mirror. The monkeys enjoyed this and some of them took pictures. And there are some great photos of monkeys that look like selfies. They look like they are smiling at the camera. So these are beautiful, very engaging images.
Michael Williams: Yes, exactly. And what’s interesting is that it was the monkeys that started the process that created the photo. And where it ultimately ended up, the photographer was upset when these photographs were posted without his permission on websites in various places, including Wikipedia. And so he sought to try to enforce his copyright, saying he was the copyright owner of the photo, but he failed.
Damien Carrick: Why? Because he hadn’t pulled the trigger? Because he hadn’t done the job?
Michael Williams: That’s right. So one of the fundamental characteristics of copyright in certain types of material, and photographs are an example, is that there must be an author and there must be enough authors. Now copyright around this type of material and literary works like novels and poems and such, it’s all based on the principle that copyright will subsist where there is a sufficient degree of originality and authorship, and these are somehow two related concepts. It has always been assumed that this degree of authorship meant that there must be a human author. And so this was an example of a case that tested this proposition to see if in this case, is there sufficient authorship on his part, or in truth, is the monkey the author?
Damien Carrick: So he loses his battle, this photographer, the British photographer, David Slater, loses his battle with the people who published his photos without acknowledging his paternity and without paying him royalties. Then at the same time, PETA, the People for the Ethical Treatment of Animals, is going to court trying to argue that the monkey should be recognized as the owner or copyright holder. And what did the court find, I think it was in California?
Michael Williams: So that’s the other side of the coin. And so in this case, PETA also failed on the grounds that the court said the monkey may well have created the photo, but was not a human author. And therefore, the copyright did not subsist on the photo, because only the photographs taken by human authors would be protected by copyright.
Damien Carrick: So nobody owns the copyright. David Slater didn’t have that right because he didn’t click the button. But neither did the monkey because it wasn’t a person.
Michael Williams: That’s right. And this kind of illustration of a growing conundrum really in copyright law, with the increased use of technology, the same kind of result falling between two stools has happened where people use computers to compile information, perhaps large databases, and organizing and presenting information. And in those cases too, unless the law has been defined in a particular way to identify copyright, there are a number of cases, including Australian cases, where the court has found that the computer is the creator. But because the computer is not a human author, there is no copyright.
Damien Carrick: It’s really fascinating. So to come full circle, we started this program by looking at the attempts of an American man named Steven Taylor to try to establish that the artificial intelligence he had created, called DABUS, should be registered in as an inventor, should be granted a patent that, not him, the actual artificial intelligence. Now, this same man also tried to get AI to get the copyright on an artwork. Now it’s a digital image created by something he calls a creativity machine algorithm. And this is a digital image of the entrance to a train tunnel covered in wisteria. I think it’s called a recent entry into paradise, that’s the name of the picture. What happened in this attempt to obtain the copyright?
Michael Williams: Well, he ended up having the exact same problem. So, under the US copyright system, there is a US Copyright Office where you can register copyrighted works and material. And it’s a feature of their particular legal system that we don’t share in Australia. But he applied for copyright registration for this computer-generated artwork and the Copyright Office rejected it. And they rejected it for the same reason that the photographer did not enforce the copyright on the photograph of the monkey on the grounds that there was no human author and therefore the copyright could not be attached to the artwork.
Damien Carrick: Steven Taylor is – you know, has this coordinated litigation in many different jurisdictions around the world to try to establish AI as an inventor through patent offices. But it also seeks recognition of the AI as the copyright holder. Do you think he will ultimately succeed in either or both of these projects?
Michael Williams: I doubt he’ll succeed as a result of these legal proceedings. So either challenge things in court, or apply for patents, or apply for copyright registration. There might be an exception somewhere in the world, but generally, no. But what it may well succeed in doing is elevating this to a level of awareness where policy makers and those involved in technology and the creative industries are once again focused on the question of whether or not these types of creations and inventions should remain outside one of the existing legal systems. . And I think by proving that point, that it can’t be protected, it probably paves the way for political reform and some pretty solid arguments and at least heated debates about where to draw the line between what can be protected and what is not.
Damien Carrick: Michael Williams, partner at Gilbert + Tobin and one of Australia’s leading intellectual property lawyers, thank you. Thanks for talking about the Law Report.
Michael Williams: It’s a great pleasure