When machines create, who owns the work? The default position in Singapore is no one, but perhaps there should be an exception. 

In 2023, the Sci-Fi Japanese Manga (comic), titled “Cyberpunk: Peach John”, hit the shelves in Japan. What made this release so special is the fact that the images used in the comic book were entirely creator by Midjourney, an AI. The author, who admits that he has “absolutely zero” drawing talent, entered combinations of text prompts to conjure up comic panels that suited his story. While this was groundbreaking, in the sense that there has never been a fully AI-drawn manga before, it is not uncommon for manga artists to utilise AI in their creations. In fact, Oda Eiichiro, the creator of the famous manga/anime, One Piece, has posted a video of him asking ChatGPT, for ideas for a new chapter. 

The million or maybe even billion-dollar question here is: Are AI generated images protected by copyright? If not, should they be?  

The Default Position in Singapore 

For the purposes of this article, we will deal with AI Generated Works that were made autonomously or with minimal human input. For such works, the default position in Singapore is that copyright protection does not extend to these works. 

In Singapore, a sufficient causal nexus between the human author of a work and the work itself is required for copyright to subsist. The Singaporean Courts have explicitly ruled that for copyright to subsist in a work, the authorial creation must have a causal connection with the “engagement of human intellect”. To illustrate, in a scenario where an artist paints a picture, there is a direct connection between the expended human intellect, i.e. mental labour, skill or judgement, and the resulting work.

This causal nexus is conspicuously missing in an AI generated work. The human user merely inputs prompts or instructions, and the AI, using the datasets it has available, churns out the work – the users have little creative control over the eventual generated work. There is a stark difference between such a situation where the work is indirectly created through an AI and the traditional creation of a copyrightable work (such as the artist scenario), where the work is directly attributable to the creative endeavours of the human. 

This position is echoed in several other jurisdictions. The US copyright office has declared that it will only allow registration of a work if it was created by a human. This stance is grounded in case law, where US courts have explicitly stated that copyright law only protects “the fruits of intellectual labour” that are “founded in the creative powers of the [human] mind”. Australia and the EU have also adopted this position. 

The US position is clearly seen in a recent decision by the US Copyright Office (“USCO”) related to a graphic novel titled “Zarya of the Dawn” (“Zarya”). The images used in Zarya were created with the help of the MidJourney AI and the creators of Zarya sought to register the entire work for copyright protection. However, the USCO only granted partial protection – to the text and arrangement of images, but not to the individual images comprising the novel. The USCO reasoned that there was too much “distance” between the user’s input and the resulting output for copyright protection to be offered. In other words, it lacked the causal nexus.

The Position in the UK 

The position in the UK is different from that in Singapore and the other above-mentioned countries. In the UK, the requirement for human authorship appears to be waived by Section 9(3) read with Section 178 of the UK Copyright, Designs and Patents Act (CDPA). Section 9(3) allows for the author of a computer-generated work to be the “person by whom arrangements necessary for the creation of the work are undertaken”. Section 178 defines a computer-generated work as one that “is generated by computer in circumstances such that there is no human author of the work”. That said, the UK courts have nevertheless interpreted these provisions to, nonetheless, require the identification of a “causal link” between the computer-generated work and a human author. 

We can see the rationale behind this position. While inputting a single prompt to an AI might not suffice to constitute the engagement of human intellect, what if the human behind the AI refined that prompt a thousand times to reach his desired result? In such a case, would the human not have expended mental labour, skill or judgement and exercised sufficient creative control over the final work?

The Case for Differentiating AI Generated Works from AI Assisted Works  

The current Singapore position is that no AI Generated Works should be offered copyright protection. However, we found a local case study that we think should be an exception to the rule. 

Ms Wyn-Lyn Tan is a local artist who is famed for using AI as a tool in her artistic works. She is the artist behind Land-Scape, an exhibition that was displayed in the Esplanade Tunnel as part of the Singapore Art Week. It consisted of 20 paintings by Ms Tan, and 6 generative AI video works (a sample of which is pictured below). We believe that her works are examples of AI Assisted Works, rather than AI Generated ones. She engages her human intellect in the creation of her works and appears to be using AI as simply another tool or medium for artistic expression.

She was asked by CNA to comment on the issue of AI art and according to her, her AI art pieces were the product of her feeding “thousands of images” of her own paintings into the AI program, in order to generate new art that is based on her old pieces. She also stated that she expended effort in “curating and inputting images” and did “a lot of post programme editing” in creating works that she felt sufficiently represented her art style.

Not only did Ms Tan continuously refine the prompts that she gave to the AI, she also “trained” the AI to better produce works that represented her style by feeding it special data (her previous paintings). Ms Tan is revolutionizing art, and we strongly believe that she should be rewarded for her efforts, not punished. 

In our opinion, AI Assisted Works, such as Ms Tan’s, should be treated differently from regular AI Generated Works such as the Zarya graphic novel, and granted copyright protection. We understand that there would be difficulties in distinguishing the two categories, but we are confident that with proper guidance from the legislators and the judiciary, these difficulties can be overcome such that we can adequately incentivize innovation and pay homage to the first principles of copyright.

Conclusion

Traditional copyright principles dictate that a human author must have a sufficient nexus to the final subject matter. Perhaps there’s nothing wrong with the state of the law remaining as such, but as works of Generative AI get smarter with time, maybe perspectives will change. That said, we hope that some sort of protection may be offered to AI Assisted Works created by artists like Ms Tan, who utilise AI as a true tool and expend genuine effort and creativity, albeit through a non-traditional medium. 

In the meantime, AI generated content is being licensed on stock photography platforms like Shutterstock for a fee. If such content is not protected by copyright, then what would one be licensing?

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