G+T partner and IP guru spoke to the ABC Radio’s Law Report about the foundational features of copyright in certain types of materials. Using an unusual example of a case where a nature photographer who had been taking photos of monkeys, attempted to get the photos that one of the monkeys had taken, copyrighted. Was the ‘author’ of the material the monkey who had been playing with the camera, or was it the owner of the camera? Can an animal, or a machine, have copyright over the art works they generate? Or, can only humans be considered ‘authors’? He explores this, and other IP conundrums in this fascinating interview.

Transcript

Damien Carrick: A few years ago, there was a copyright dispute involving British photographer David Slater and a monkey, a crested macaque named Naruto. Michael Williams, a partner with Gilbert + Tobin, is one of Australia's leading intellectual property lawyers.

Michael Williams: It was a pretty interesting case, because it was a nature photographer who was taking photos of various crested monkeys. And in the course of doing so, one of the curious monkeys picked up the camera that he had set on a tripod to be taking photos and started using that camera, and appears to have taken some of the photos himself, or itself.

Damien Carrick: As I understand it, he set up his camera - this was in Indonesia - he set up his camera with a remote shutter trigger to allow the monkeys to approach the camera and look at themselves in the mirror. The monkeys enjoyed this and some of them took snaps. And there's some lovely shots of monkeys which look like selfies. They look like they're smiling at the camera. So they're beautiful, very engaging images.

Michael Williams: Yes, exactly. And so what's interesting that follows from that is that it was the monkeys who triggered the process that created the photo. And where this ultimately went was the photographer was upset when these photographs were appearing without his authorisation on Internet sites in various locations, including Wikipedia. And so he sought to try and enforce his copyright, saying that he was the owner of the copyright in the photo, but he failed.

Damien Carrick: Why? Because he hadn't pressed the trigger? Because he hadn't made the work?

Michael Williams: That's right. So one of the sort of foundational features of copyright in certain types of material, and photographs are an example of one of them, is that there has to be an author and there has to be sufficient authorship. Now, copyright around that kind of material and literary works like novels and poems and things, it's all based on the principle that copyright will subsist where there is a sufficient degree of originality and authorship, and they're sort of two co-related concepts. It's always been assumed that that degree of authorship meant that there had to be a human author. And so this was an example of a case which tested that proposition to see whether in this instance, is there sufficient authorship by him, or in truth, is the monkey the author?

Damien Carrick: So he loses his battle, this photographer, British photographer, David Slater, loses his battle with the people who published his photos without acknowledging his authorship and paying him royalties. Then at the same time, PETA, the People for Ethical Treatment of Animals, goes to court to try and argue that the monkey should be acknowledged as the copyright owner or holder. And what did the court find, I think was in California?

Michael Williams: So that's the other side of the coin. And so in that case, PETA also failed on the basis that the court said that the monkey may well have created the photo, but was not a human author. And as a result, copyright did not subsist in the photo, because only photographs taken by human authors would be given copyright protection.

Damien Carrick: So nobody is the holder of the copyright. David Slater didn't have that right, because he hadn't clicked the button. But the monkey didn't either because it wasn't a person.

Michael Williams: That's right. And this sort of illustrates an increasing conundrum really in copyright, with the greater use of technology, the same kind of result falling between two stools has occurred where people are using computers to compile information, perhaps great databases, and organise and present information. And in those cases as well, unless there is some particular way the law has been defined to identify the copyright, there are a number of instances, including in Australian cases, where the court has found that it's the computer that's the creator. But because the computer is not a human author, there is no copyright.

Damien Carrick: That's really fascinating. So coming full circle, we started this program by looking at attempts by a man in America called Steven Taylor to try and establish that artificial intelligence that he had created, called DABUS, should be registered as an inventor, should be granted a patent that, not him, the actual artificial intelligence. Now, this same man has also been trying to have AI obtain copyright in an artwork. Now, this is a digital image created by something he calls a creativity machine algorithm. And it's a digital image of the entrance of a railway tunnel covered in wisteria. I think it's called a Recent Entrance to Paradise is the name of the image. What happened in that attempt to obtain copyright?

Michael Williams: Well, he ended up running into exactly the same problem. So under the US copyright system, there is a US Copyright Office where you can register copyright works and material. And it's a feature of their particular legal system that we do not share in Australia. But he applied for copyright registration for this computer generated artwork and the Copyright Office knocked it back. And they knocked it back for the same reason as the photographer failed to enforce copyright in the photograph of the monkey on the basis that there was no human author, and therefore copyright couldn't be attached to the artwork.

Damien Carrick: Steven Taylor is- you know, has this coordinated litigation in many, different jurisdictions all around the world to try and establish AI as an inventor through the patent offices. But also he's seeking to have AI recognised as a copyright holder. Do you think ultimately he will be successful in either or both of these endeavours?

Michael Williams: I doubt he is going to be successful following these legal processes. So either challenging things in court or applying for patents or applying for copyright registration. There might be an exception somewhere in the world, but generally speaking, not. But what he may well be successful in doing is raising this to a level of awareness where policy makers and those involved in technology and the creative industries focussing again on whether or not these types of creations and inventions should sit outside any of the existing legal systems. And I think he, by proving this point, that it can't be protected, he's probably paving the way for policy reform and some pretty strong arguments and at least lively debates about where the line should be drawn, between what's capable of being protected and what's not.

Damien Carrick: Michael Williams, partner with Gilbert + Tobin and one of Australia's leading IP lawyers, thank you. Thank you for speaking to the Law Report.

Michael Williams: It's a great pleasure