What are Computer-generated works?

Who is the author of a computer-generated work?

Although the Copyright, Designs and Patents Act 1988 specifically recognises that work produced by a computer, or with the assistance of one, can be afforded copyright protection, this area of law is fraught with difficulty and uncertainty.  Chief among these is the authorship of the work created.  Generally, for copyright to subsist in a work there must be a human author.  On the face of it this means that a computer, being non-human, cannot be the author of a work.  Somewhat confusingly, however, s178 of the Act states that a computer-generated work is one generated in circumstances when there is no human author of the work, bringing us back to the question of who, then, is the author.  Already, problems can be seen in this approach, particularly regarding the position when a computer generates a work that is clearly worthy of copyright protection, but has had little human input in its creation.  An early case (Express Newspapers plc v Liverpool Daily Post & Echo plc [1985], decided under the previous legislation but still applicable today) held that human expertise in computer-generated works lay in the programs, or software, which produced the end result.

Human skill can also be found in the person who enters information into a program in order to achieve a specific result.  Under s9(3) of the Act, which concerns literary, dramatic, musical or artistic work that has been computer-generated, the author is the person who made the necessary arrangements to create the work, such as the program author.

Clearly, a consistent and logical approach is required so that the law in this area is unambiguous and has the desired effect.  To make some headway, it is useful to classify computer-generated work into three categories, namely

  1. Works created using a computer

  2. Works created by a computer

  3. Intermediate works

Works created using a computer

These are probably the easiest works to define.  Works in this category include documents written using a word processor, architectural plans created using computer aided design (CAD), and accounts done on a spreadsheet.  Here, the respective computer program is merely a tool used to assist in producing the final result, in the same way that a pen is a tool used when writing a letter.  As the pen cannot be said to be the author of the letter, neither can the computer program, in these instances, be said to be the author of the finished product, be it a document, a plan or an accounts report.  Consequently, these works are not computer-generated, and it is the person who uses the computer to create the works who is recognised as the author.  It is worth pointing out here that the author can create the work directly or indirectly.  A person may draft a report in longhand on paper then hand it to a secretary who subsequently types it up on a computer.  Here, the secretary is not the author of the work but merely an agent acting on behalf of the true author. 

In these examples, the author of the computer program which was used to create the work has no claims to authorship of the work.  This is because the programmer did not create the content of the work, even though they may have influenced its format.   

Finally, copyright will subsist in works produced using a computer as soon as the work is saved on a computer disk or printed off to create a hardcopy.

Works created by a computer

These are literary, dramatic, musical or artistic works which under s178 of the 1988 Act have no human author.  The implication is that there is minimal or no human input in creating the work, an example being weather forecasts generated by a computer which is in direct communication with a weather satellite.  Little skill is required in such a system beyond turning the computer on.  Neither can the operator influence the form or content of the output.  Who, then, is the author?  It could be either the person who procures the equipment and software to produce the output, or the persons who wrote the software.

Unfortunately, there has only been one case before the courts which has considered computer-generated works.  In Nova Productions Ltd v Mazooma Games Ltd [2006] it was held that individual frames shown on a screen when playing a computer game where computer-generated artistic works.  The author of these frames was the person who had devised the rules and logic used to create them.  The player of the game was not the author, because they had not contributed any artistic skill or labour.  Although seemingly satisfactory on the facts of the case, the decision does have its limitations.

Intermediate works

As the heading suggests, these are works which fall somewhere between works created using a computer and works created by a computer. Authorship can be considered as the result of the skill and effort of the person using the computer, the person who created the program being used, and the person who created any database that the program might use.  A specialist music synthesiser that creates music using basic, but expert, user input, and support databases, would fall under this category. 

The bulk of specialist, professional software would likely be classified intermediate works, but that does not assist us in answering the question of authorship of the finished product.  The user, the programmer and the database provider could all have a legitimate claim to authorship.  Alternatively, they could be regarded as joint-authors.  Since the Act offers little guidance and there is a serious dearth of precedent, the best option in these cases is to clarify issues of authorship, as opposed to ownership, in a contract or licence.  Since in these situations there are several potentially justified claims, this is likely the best way to avoid what could turn out to be costly and protracted litigation concerning the authorship of an intermediate work.