Software is protected by copyright, it is
protected as a literary work. Literary works have requirements of being original for there
to be copyright protection. So, software code that is being created by a human being, providing it meets the incredibly low threshold of originality, is protectable. At the EU level, the test
is the author’s intellectual creation and it’s a very low bar – but you do require
an author, you do require a human intervention. Now, our legislation is actually quite forward looking when it
comes to this. The Copyright, Designs and Patents Act deals with the idea of having
computer generated works. You see the definition of computer generated work on the slide and
you’ll see that the person that is deemed to be the author of the works is the person who
makes the arrangement for those works to be created. So that makes sense now in the world that we live in, where
I ask a computer programme to perform a task for me – I widely made those arrangements.
But as we talk more about AI becoming more independent – the tasks it is given are broader, less
well defined, it has more latitude to make its own decisions. Who is making those arrangements
for the work to be created? Is it the developers of the software who created the conditions?
Is it the user who gives it the instructions? Is it nobody? And if it’s nobody, then who is the author? No author,
no literary work.