• Wednesday, February 28, 2024
businessday logo

BusinessDay

Generative AI and Copyright (Part 2)

Generative AI and Copyright (Part 2)

With tools like DALL-E, everyone can play at being an artist. But would that be enough to make us all artists, compared to those who use cameras, paint, and manipulate digital tools like CorelDraw to create original images? If I use ChatGPT to write a poem or an essay, can I rightly call that essay my original work?

That is the central question this article seeks clarity on, considering the copyright laws of a few countries. It is important to note that DALL-E belongs to a family of AI tools, broadly described as generative AI, alongside the popular ChatGPT and other similar devices.

In the first part of this article, we considered how copyright laws treat AI-generated works in the UK and USA; in this article, we will examine treatment under Nigerian law.

Generative AI under Nigerian Copyright Law

Copyright in Nigeria is regulated by the Copyright Act 2022, recently enacted to repeal the Copyright Act 1988. The new law recognizes technological protections used to protect copyrighted works and online content which are provisions absent in the 1988 law.

For creatives and other users who intend to use the output of generative AI for commercial ends, it would be advisable to avoid those AI tools that completely automate the creation process and use only those that serve as an aid or editing tool.

The Act has no express provisions like the UK law that could serve as a basis for recognizing AI-generated works in Nigeria. It tilts toward the US position, just like the 1988 law, regarding emphasizing human effort for copyright eligibility. Section 2(2)(a) provides that for a literary, musical or artistic work to be eligible for copyright, the creator must have expended some effort on making the work to give it an original character. Section 19(1)(a) goes further to provide that the duration of copyright for literary, musical, or artistic works is 70 years after the year in which the author dies.

Section 108(1) introduces relevant definitions that may raise the possibility of extending copyright to AI-generated works. It defines an author of an audiovisual work or sound recording as the person responsible for the selection and arrangement for the making of the audiovisual or sound recording. Usually, the person who makes arrangements necessary, especially for audiovisual works, is the director. In practical terms, selection and arrangement for a director involve reading and editing scripts, directing film crews and actors, overseeing the production of the final film, and working with other crew members to ensure the movie matches their creative vision.

However, some generative AI tools that can be used for creating or editing videos from scratch pose a challenge to what selection and arrangement means for audiovisuals and sound recordings. Some AI tools, like Descript, Wondershare Filmora, and Peech, help edit existing videos and add additional features. Others, like Synthesia, generate videos from scratch once a script is provided. It also has a library of real-looking human avatars that you can choose from as characters for the video. The software will then lip-sync the content from the script to the chosen avatars; with a tool like this, audiovisual recordings of varying lengths without any of the activity that usually accompanies such recordings. Without any express provision of the Copyright Act 2022, like in the UK, or additional guidance, like in the USA, the status of copyright for generative AI in the film or music industry is uncertain.

For creatives and other users who engage with these tools frequently (where the intention is to use the output of generative AI for commercial ends; or for any other purpose that may require having the right to claim ownership of content in Nigeria), it would be advisable to avoid those AI tools that completely automate the creation process and use only those that serve as an aid or editing tool. This way, the argument for human effort, selection and arrangement can still make such works eligible for copyright protection in Nigeria.

Read also: Strictly Law Business holds conference on future of legal services

Copyright Infringement in Nigeria Using Generative AI

While the position of the law on extending copyright to generative AI may be vague in Nigeria, the direction is quite clear on using AI to infringe on existing copyright.

Concerning recording or adaptation of a musical work, any of the following conditions must be met:

i. The recording or adaptation has previously been made, imported into or made available in Nigeria for retail with the consent or licence of the copyright holder;

ii. The person behind the adaptation has notified the copyright owner or the relevant collective management organisation.

iii. The person pays the copyright owner or approved collective management organisation a royalty equal to the rate to the rate of the regular retail selling price of the record.

Going by these provisions, using AI music generators like Amper Music, Aiva, or Soundful to adapt existing musical work will be deemed an infringement of copyright.

Where copies of copyrighted work are made using generative AI and brought into Nigeria, this would be considered an infringement of copyright. Where there is a public performance of the infringing content, and the owner of the place was aware of this fact, they will also be held liable. Where copies of the infringing work are made for sale, hire, or imported into Nigeria, the punishment upon conviction is a fine of not less than N10,000 for every infringing copy, imprisonment for a term not less than five years, or both. However, if the generative AI tool is used to make copies or adaptations for private or domestic use or the copies created by the AI tool are imported into Nigeria for personal or domestic use, it will not be deemed a copyright offence.

Selling, letting, distributing, and possessing (except for private or domestic use) infringing copies is an offence that attracts a fine of not less than N10,000 for each document, imprisonment for a term of not less than three years, or both.

Where the infringing copies generated using AI are uploaded on digital streaming platforms or any platform for hosting online content, the service providers maintaining these platforms may incur liability if they fail to act on a notice to take down from the copyright owner. Upon receiving the notice in the correct format, the service provider must either remove the infringing content or disable access.

Also, developing or importing generative AI software in Nigeria to pirate copyrighted work is an offence that attracts a fine of not less than N1 million, imprisonment for a term of not less than five years, or both. Therefore, persons who intend to develop local generative AI systems, or localize existing systems for Nigeria, must ensure that safeguards are put in place. These safeguards should ensure that copyrighted material is not uploaded on their platform for editing, adapting, or making further copies.

Recommendations

The Copyright Act 2022, while progressive compared to the previous law, is inadequate in a world where emerging technologies like artificial intelligence, the metaverse, and NFTs are impacting the way content is created. Its provisions may protect creatives where generative AI is used to infringe on their copyright but unfortunately falls short of providing a definite legal position on extending copyright to AI-generated work. The genie is out of the bottle, and there is no rolling back the use of generative AI tools by creatives to either create original content or improve their existing content.

There is also no indication that the government is thinking in this direction. The National Intellectual Property Policy and Strategy, released in August 2022, details the short, medium, and long-term plans for developing the Nigerian IP space. It does not mention any emerging technologies and their impact on IP rights.

A further amendment to the Copyright Act may be needed to bring it further in line with modern realities of creative expression. The law needs to be amended to expand what an author is and introduce a definition for computer-generated works that accommodates generative AI.

Ultimately, our laws and regulations need to be more futuristic and continue to evolve with the new age of creative expression.