AI and Copyright Law: The Current Standpoint

As of now, in Australia, AI-generated content is not protected by copyright law. The primary reason is that copyright protection requires human intellectual effort. This means that for content to be copyrighted, it must be created through human intellectual application. AI-generated content, unless significantly modified by a human after its creation, does not meet this criterion. This legal standpoint has not yet been tested in court, at least in regard to copyright, but it will be interesting to see how future legal battles shape this area of law. It may, however, be worth noting that decisions made in February 2025, in the appeal case to Thaler v Commissioner of Patents (2021)¹, continue to suggest that the creative spark behind an invention must originate from a human.

Why This Matters for Businesses

For businesses, this means that any content generated by AI may not necessarily be exclusively claimed as their own. This has significant implications for companies that rely heavily on AI for content creation. Without copyright protection, AI-generated content is essentially in the public domain, and anyone can use it without legal repercussions. This could potentially lead to issues of content ownership and originality in the business world.

1. Defining Authorship and Copyright Eligibility

One of the primary challenges is defining authorship for AI-generated content. Current copyright laws typically require human intellectual effort for a work to be eligible for copyright protection. Legislative reform could introduce new definitions and criteria for authorship that recognise the role of AI in content creation, but this is not yet under consideration. Reforms in this space could include provisions for joint authorship, where both the AI and the human who contributed to the creation process are recognised as co-authors. In the meantime, by maintaining a human element that significantly modifies or contributes to the AI-generated content, businesses will continue to be able to claim copyright protection. This approach aligns with the current legal requirement for human intellectual effort in copyright law².

2. Establishing Clear Guidelines for AI Training Data

The use of copyrighted materials by AI models is another contentious issue, as AI cannot be simply stated to be publishing existing copyright materials, as it collates materials and repurposes them, therefore subject to potential claims for copyright under the laws as they stand. Legislative reform could therefore implement guidelines and regulations for the use of copyrighted content in AI data, which may also involve creating licensing frameworks that allow AI developers to legally use copyrighted materials for training purposes, while ensuring that the rights of original content creators are protected. Business, of course, may adopt the existing voluntary guidelines in place regarding use³, however, the concern at hand is that there will not be any uniform application of particular processes and procedures until there is a clear legal framework in place. Meanwhile it is to be assumed that copyright is infringed where there is significant use of existing work.

3. Addressing Fair Use and Derivative Works

Similar to the above, business often relies on fair use exemptions in copyright to create content. AI should arguably be treated no differently, so to avoid infringement without real recourse being available, particularly if it is expected that a human will oversee the creation process anyway. The question, however, remains and needs to be addressed as to whether AI-generated content based on existing copyrighted materials qualifies as either fair use of copyright or a derivative work and how it should be treated under copyright law. The law presently, however, is not so clear on this topic, and legislative reform could clarify how fair use applies to AI-generated content and the use of copyrighted materials in AI training, or alternatively, what may qualify as a derivative work. 

4. Implementing Disclosure Requirements

To promote transparency and accountability, businesses may also need to consider, or push for legislative reform to introduce disclosure requirements for AI-generated content. This may involve mandating that AI-generated works include clear labels or disclaimers indicating that they were created by AI, which is currently being seen on video content on social media platforms. Such requirements would help distinguish AI-generated content from human-created works and provide consumers with important information about the origin of the content. It has been seen that the Australian government has already, since September 2024, commenced implementing its own policy on such disclosure and use⁴.

The continued development of Industry standards and guidelines will therefore assist in addressing the unique challenges posed by AI-generated content. In the meantime, however, by establishing best practices and ethical guidelines, businesses can ensure responsible use of AI and protect their intellectual property rights.

Businesses can also explore alternative intellectual property protections, such as trademarks and trade secrets, to safeguard their AI-generated content. While copyright may not be available, other forms of IP protection can provide legal recourse and help businesses maintain a competitive edge.

Conclusion

In summary, as the legal landscape continues to evolve, it is important for businesses, creators, and legal experts to stay informed about legislative developments and actively participate in discussions about the future of AI and copyright law. Stakeholders presently hold a front row seat to these topics and can therefore help shape a legal framework that supports innovation, creativity, and fairness in the age of AI. On the legal front, we will meantime work with clients to ensure best practices and protection as things progress.