Stockfish: Our lawsuit against ChessBase

[syzygy]

(even if you can not copyright plain chess games, but maybe collections).

A collection is copyrightable only if the collection expresses the creativity of whoever selected what to goes into the collection and what not. This may be the case for Fischer's 60 memorable games, but not for Lc0's training data.

[syzygy]

Somewhere in this 52 page thread (or a similar thread), I linked an article in which a legal expert said that AI generated art might be able to be copyrighted as "commissioned" art.

If I commission an artist to create a work of art, then the copyright belongs to me, not the artist. It hasn't been tested in court, but the expert said that this might be usable to get a copyright on computer generated art.

It won't work. If you commission art, the copyright you get is the artist's copyright, i.e. on the artist's expression of creativity. If there is no such creative expression by a human, there is no copyright.

[syzygy]

Somewhere in this 52 page thread (or a similar thread), I linked an article in which a legal expert said that AI generated art might be able to be copyrighted as "commissioned" art.

If I commission an artist to create a work of art, then the copyright belongs to me, not the artist. It hasn't been tested in court, but the expert said that this might be usable to get a copyright on computer generated art.

It won't work. If you commission art, the copyright you get is the artist's copyright, i.e. on the artist's expression of creativity. If there is no such creative expression by a human, there is no copyright.

The UK Copyright Act explicitly states:

In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

And it contains the following definition of "computer-generated":

“computer-generated”, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work;

So this seems to mean that any "AI creativity" that created the work has to be attributed to the "person by whom the arrangements necessary for the creation of the work are undertaken" (which would make UK copyright law incompatible with EU law, but after Brexit that is OK). So where the "commissioning" construction in my view cannot be expected to work, the UK copyright act seems to be clear that AI-generated works are copyrighted.

However, even in the UK it is still not clear if there can be copyright without human creativity:
https://www.gov.uk/government/consultat ... ated-by-ai

How the law treats AI-generated works
Unlike most other countries, the UK protects computer-generated works which do not have a human creator (s178 CDPA). The law designates the author of such a work as “the person by whom the arrangements necessary for the creation of the work are undertaken” (s9(3) CDPA). Protection lasts for 50 years from the date the work is made (s12(7) CDPA).

When proposed in 1987, this was said by Lord Young of Graffham to be “the first copyright legislation anywhere in the world which attempts to deal specifically with the advent of artificial intelligence”. It was expressly designed to do more than protect works created using a computer as a “clever pencil”. Instead, it was meant to protect material such as weather maps, output from expert systems, and works generated by AI.

Although it was expected that other countries would follow suit, few countries other than the UK currently provide similar protection for computer-generated works.

Originality and computer-generated works
Since these provisions became law in 1988, the concept of originality has evolved. This has led to some uncertainty about how the computer-generated works provision applies.

Literary, dramatic, musical and artistic works are only protected by copyright if they are original. In 1988, “original” meant a work must be the product of the “skill, labour or judgement” of its author. But the current approach is that a work must be “the author’s own intellectual creation”. This means it must result from the author’s free and creative choices and exhibit their “personal touch”. It is unclear how these concepts can apply to AI works and some argue that a separate definition of originality may be needed.

By designating a human as the author of a work generated by an AI, the UK approach also separates authorship and creativity. The creator of the original work is the AI, but the “author” under the law is a person who has not made any creative input to it. This sits uneasily with the modern approach to originality in wider copyright law, where creativity and authorship go hand-in-hand.

As computer-generated works have “no human author”, it appears that the concept of “joint authorship” does not apply to works co-created by humans and AI systems. As such, there is some ambiguity about the status of AI-assisted works.

US copyright law has essentially the same creativity requirement (Feist v. Rural from 1991, see also Bridgeman Art Library v. Corel Corp). It would seem logical that the EU simply followed the US in this, but the Dutch Supreme Court took a similar decision on January 4, 1991 (Van Dale/Romme), which was five days before Feist was argued. The creativity criterion was then harmonised for the whole EU by the ECJ in Infopaq (2009). I believe the UK still considers itself to be bound by ECJ decisions issued before Brexit took effect (via the Withdrawal Act).

[towforce]

Somewhere in this 52 page thread (or a similar thread), I linked an article in which a legal expert said that AI generated art might be able to be copyrighted as "commissioned" art.

If I commission an artist to create a work of art, then the copyright belongs to me, not the artist. It hasn't been tested in court, but the expert said that this might be usable to get a copyright on computer generated art.

It won't work. If you commission art, the copyright you get is the artist's copyright, i.e. on the artist's expression of creativity. If there is no such creative expression by a human, there is no copyright.

The UK Copyright Act explicitly states:

In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

And it contains the following definition of "computer-generated":

“computer-generated”, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work;

So this seems to mean that any "AI creativity" that created the work has to be attributed to the "person by whom the arrangements necessary for the creation of the work are undertaken" (which would make UK copyright law incompatible with EU law, but after Brexit that is OK). So where the "commissioning" construction in my view cannot be expected to work, the UK copyright act seems to be clear that AI-generated works are copyrighted.

However, even in the UK it is still not clear if there can be copyright without human creativity:
https://www.gov.uk/government/consultat ... ated-by-ai

How the law treats AI-generated works
Unlike most other countries, the UK protects computer-generated works which do not have a human creator (s178 CDPA). The law designates the author of such a work as “the person by whom the arrangements necessary for the creation of the work are undertaken” (s9(3) CDPA). Protection lasts for 50 years from the date the work is made (s12(7) CDPA).

When proposed in 1987, this was said by Lord Young of Graffham to be “the first copyright legislation anywhere in the world which attempts to deal specifically with the advent of artificial intelligence”. It was expressly designed to do more than protect works created using a computer as a “clever pencil”. Instead, it was meant to protect material such as weather maps, output from expert systems, and works generated by AI.

Although it was expected that other countries would follow suit, few countries other than the UK currently provide similar protection for computer-generated works.

Originality and computer-generated works
Since these provisions became law in 1988, the concept of originality has evolved. This has led to some uncertainty about how the computer-generated works provision applies.

Literary, dramatic, musical and artistic works are only protected by copyright if they are original. In 1988, “original” meant a work must be the product of the “skill, labour or judgement” of its author. But the current approach is that a work must be “the author’s own intellectual creation”. This means it must result from the author’s free and creative choices and exhibit their “personal touch”. It is unclear how these concepts can apply to AI works and some argue that a separate definition of originality may be needed.

By designating a human as the author of a work generated by an AI, the UK approach also separates authorship and creativity. The creator of the original work is the AI, but the “author” under the law is a person who has not made any creative input to it. This sits uneasily with the modern approach to originality in wider copyright law, where creativity and authorship go hand-in-hand.

As computer-generated works have “no human author”, it appears that the concept of “joint authorship” does not apply to works co-created by humans and AI systems. As such, there is some ambiguity about the status of AI-assisted works.

US copyright law has essentially the same creativity requirement (Feist v. Rural from 1991, see also Bridgeman Art Library v. Corel Corp). It would seem logical that the EU simply followed the US in this, but the Dutch Supreme Court took a similar decision on January 4, 1991 (Van Dale/Romme), which was five days before Feist was argued. The creativity criterion was then harmonised for the whole EU by the ECJ in Infopaq (2009). I believe the UK still considers itself to be bound by ECJ decisions issued before Brexit took effect (via the Withdrawal Act).

A lot of law that came from the EU continues to apply in the UK: the difference between us and current EU countries is that our government can change (or remove) those laws as and when it chooses to do so. This will take a long time, so we'll have a lot of EU law for a good while yet.

The following sentence: "In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.", says to me that if I ask ChatGPT (or other LLM) to write a story, then I am granted authorship of that story (but, oddly, not necessarily the copyright!).

Let's go pre-computer for a moment: suppose I had a huge bag of Scrabble letters, and I used these to create a short story: clearly I would be the author. Now suppose I had a bag of blocks, and each block contained an English language phrase (or expression). If I used these to make a story, would I still be the author? I suspect not, due to the following precedent: the English authors of the book "Holy Blood Holy Grail" sued Dan Brown, because his book, "Da Vinci Code", so obviously took so many ideas from Holy Blood Holy Grail. They lost their case because, although Dan Brown had sourced from Holy Blood Holy Grail a lot more than he'd previously acknowledged, he hadn't actually copied any of the original book's text. However, if you made a story out of provided phrases/expressions, you would have copied actual text.

This is where LLMs are vulnerable to copyright claims: they sometimes output entire phrases/expressions used in their training data.

On the positive side, there's always the practical issue: if I asked an LLM to write a story, it's possible that nobody would know that I'd done that (although there are detection programs - just as there are programs that can differentiate human games from computer games (but not yet with 100% accuracy)). If nobody knew, then I could get away with claiming the copyright.

[towforce]

On the positive side, there's always the practical issue: if I asked an LLM to write a story, it's possible that nobody would know that I'd done that (although there are detection programs - just as there are programs that can differentiate human games from computer games (but not yet with 100% accuracy)). If nobody knew, then I could get away with claiming the copyright.

Quick warning on this: right now, companies offering LLM services online are keeping records - so they could possibly find out if you slap a copyright on, and make a big success from, material that their model has generated. Undoubtedly there are ways around this, and it's unlikely that anyone here will hit this issue - but thought I'd better mention it.

[syzygy]

The following sentence: "In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.", says to me that if I ask ChatGPT (or other LLM) to write a story, then I am granted authorship of that story (but, oddly, not necessarily the copyright!).

Being granted authorship would imply being granted copyright (if there is one), unless copyright for some reasons anyway goes to someone else (e.g. your employer).

Being granted authorship does not necessarily mean that there is a copyright, but since the UK copyright act specifically states that "computer-generated" means "no human author", it can only be concluded that the legislator intended that a computer-generated work without any actual human authorship still is copyrighted (and this copyright should then in principle go to the person who by legal fiction is deemed to be the author). Because otherwise (if a work without human author is not copyrighted) this whole provision (granting authorship of computer-generated works) would be meaningless.

However, as mentioned EU law probably requires UK courts to ignore this clear intention of the 1988 legislator. But this has not yet been decided, as far as I can tell, and the situation with EU law and Brexit in the UK adds another complication.

Let's go pre-computer for a moment: suppose I had a huge bag of Scrabble letters, and I used these to create a short story: clearly I would be the author. Now suppose I had a bag of blocks, and each block contained an English language phrase (or expression). If I used these to make a story, would I still be the author?

If there is creativity in your arrangement of phrases and expressions, then you have a copyright on that arrangement.

I suspect not, due to the following precedent: the English authors of the book "Holy Blood Holy Grail" sued Dan Brown, because his book, "Da Vinci Code", so obviously took so many ideas from Holy Blood Holy Grail. They lost their case because, although Dan Brown had sourced from Holy Blood Holy Grail a lot more than he'd previously acknowledged, he hadn't actually copied any of the original book's text. However, if you made a story out of provided phrases/expressions, you would have copied actual text.

But you can create a copyrighted work that also infringes the copyright of someone else.
If I create a new story with the original Mickey Mouse, then my drawings of Mickey Mouse infringe Disney's copyright (valid until the end of this year, it seems), but Disney would not be allowed to copy my story because I have a copyright on the arrangements I made, and the text I added, etc.

Dan Brown apparently only took ideas. Had he copied passages (or perhaps even phrases) he would have infringed the copyright on "Holy Blood Holy Grail", but he (or his publisher) would still have a copyright on his own book.

This is where LLMs are vulnerable to copyright claims: they sometimes output entire phrases/expressions used in their training data.

Yes, that can be a problem for LLMs.

On the positive side, there's always the practical issue: if I asked an LLM to write a story, it's possible that nobody would know that I'd done that (although there are detection programs - just as there are programs that can differentiate human games from computer games (but not yet with 100% accuracy)). If nobody knew, then I could get away with claiming the copyright.

For sure. Even the claim that you have edited the AI-generated work might be sufficient.

[towforce]

The following sentence: "In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.", says to me that if I ask ChatGPT (or other LLM) to write a story, then I am granted authorship of that story (but, oddly, not necessarily the copyright!).

Being granted authorship would imply being granted copyright (if there is one), unless copyright for some reasons anyway goes to someone else (e.g. your employer).

Being granted authorship does not necessarily mean that there is a copyright, but since the UK copyright act specifically states that "computer-generated" means "no human author", it can only be concluded that the legislator intended that a computer-generated work without any actual human authorship still is copyrighted (and this copyright should then in principle go to the person who by legal fiction is deemed to be the author). Because otherwise (if a work without human author is not copyrighted) this whole provision (granting authorship of computer-generated works) would be meaningless.

However, as mentioned EU law probably requires UK courts to ignore this clear intention of the 1988 legislator. But this has not yet been decided, as far as I can tell, and the situation with EU law and Brexit in the UK adds another complication.

Let's go pre-computer for a moment: suppose I had a huge bag of Scrabble letters, and I used these to create a short story: clearly I would be the author. Now suppose I had a bag of blocks, and each block contained an English language phrase (or expression). If I used these to make a story, would I still be the author?

If there is creativity in your arrangement of phrases and expressions, then you have a copyright on that arrangement.

I suspect not, due to the following precedent: the English authors of the book "Holy Blood Holy Grail" sued Dan Brown, because his book, "Da Vinci Code", so obviously took so many ideas from Holy Blood Holy Grail. They lost their case because, although Dan Brown had sourced from Holy Blood Holy Grail a lot more than he'd previously acknowledged, he hadn't actually copied any of the original book's text. However, if you made a story out of provided phrases/expressions, you would have copied actual text.

But you can create a copyrighted work that also infringes the copyright of someone else.
If I create a new story with the original Mickey Mouse, then my drawings of Mickey Mouse infringe Disney's copyright (valid until the end of this year, it seems), but Disney would not be allowed to copy my story because I have a copyright on the arrangements I made, and the text I added, etc.

Dan Brown apparently only took ideas. Had he copied passages (or perhaps even phrases) he would have infringed the copyright on "Holy Blood Holy Grail", but he (or his publisher) would still have a copyright on his own book.

This is where LLMs are vulnerable to copyright claims: they sometimes output entire phrases/expressions used in their training data.

Yes, that can be a problem for LLMs.

On the positive side, there's always the practical issue: if I asked an LLM to write a story, it's possible that nobody would know that I'd done that (although there are detection programs - just as there are programs that can differentiate human games from computer games (but not yet with 100% accuracy)). If nobody knew, then I could get away with claiming the copyright.

For sure. Even the claim that you have edited the AI-generated work might be sufficient.

Thank you syzygy: that's a helpful contribution which has clarified some of my thinking about copyright.