AI & THE DESIGNER: WHO OWNS THE RIGHT

ABSTRACT  

In the creative industry, there has been a rise in the use of AI, from designing to modelling, and  even trend forecasts. Especially with the use of AI by designers for design creation, legal issues  and questions on authorship and ownership arise. When creative designs are AI-assisted,  should AI be treated as a mere tool, a co-creator, or a thief when questions on design right  ownership arise? Current laws and court decisions react to these issues by emphasising the  human authorship requirement. Although, not finalised, various jurisdictions also seek to  recognise the contribution of AI in creativity and innovation. The law has to evolve, in order  to recognise AI-assisted designs without undermining human creativity.  

RESEARCH METHODOLOGY  

This article adopts a doctrinal approach. It makes use of statutory instruments like case law,  treaties and statutory provisions as its primary sources. The secondary source includes a report  from the World Intellectual Property Organization (WIPO).  

INTRODUCTION  

AI is one of the best tools, and the biggest threat in the creative industry. The lines between  originality, collaboration and authorship become thinner with the use of AI to create designs.  This article examines how the law currently treats AI-generated designs, as well as proposes  reforms. This work focuses on copyright, fashion/design, case law, and policy reforms.  

AI & THE DESIGNER  

The creation of designs is made easier than ever before, through the help of AI. Its purposes  include: generation of prototypes inspiration, and trend prediction. The saying that there is a  “bad” in every “good” is evident in AI-assisted/generated designs. Although it has its distinct  benefits, it has given rise to the questioning of design authorship.  

Between AI and the designer, who owns the copyright of the design created? The designer  plays a huge role in the creation of designs, as he uses AI as either a tool, or a co-creator.  Whether AI serves as a mere tool or a co-creator depends on the designer’s use. On one hand,  AI can serve as a mere tool, just like a sewing machine or computer-aided design (CAD). This  can be by its way of speeding up design processes, while creative decision-making is carried  out by the designer. A sewing machine is a tool for design creation that helps speed up stitching. 

Can it be said that the sewing machine owns the copyright of the design produced through it?  On the other hand, AI can serve as a co-creator. This happens when the outputs bear little or  no human trace – just like AI-generated essays. AI does not just create designs independently  without a prompt from the user/designer. When AI serves as a co-creator, the output reflects a  little human trace and goes beyond the initial prompt/instruction from the designer. Questions  arise, as a result of the use of AI in design creation – “Can designers claim originality if AI  heavily assists?” The law and court across jurisdictions are currently looking into ways to  recognise the contribution of AI in design creation.  

LEGAL FRAMEWORK  

Many laws establish the requirement of human authorship for ownership of various rights like  copyright, patents, and design right. Some of these are the Copyright Act1, the Copyright and  Designs and Patents Act (CDPA)2, the Council Regulations on Community Designs3, and the  European Patent Convention (EPC).4 The United States Copyright Act provides that copyright  exists in “original work of authorship fixed in any tangible medium of expression.”5 The Office  (U.S. Copyright office) has stated that works produced automatically by machines, without any  creative input or intervention by a human author cannot be registered.6 Such a work lacks  originality, which is required by the Act.  

In the United Kingdom, the Copyright Designs and Patents Act (CDPA) expressly addresses  computer-generated works. It provides that in the case of 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.7 It appears that this Act  attributes authorship to the individual operating the machine or system. It is, however,  ambiguous in situations where AI systems act significantly autonomously.  

The Council Regulation on Community Designs protects both registered and unregistered  designs, within the European Union, provided they are “new” and have “individual character.”8 

Questions on originality will arise where AI-generated designs are based on elements from its  training data. Training data is the collection of information like images, text, music, etc., which  are used to help an AI system learn patterns and generate new outputs. Based on the designs  an AI system has been trained with, it produces a new design, which leads to concerns on  infringement of pre-existing rights.  

Although the World Intellectual Property Organization (WIPO) does not make binding laws,  it issues reports, guidelines, and treaties, and this shapes the way various countries deal with  intellectual property matters. The Berne Convention administered by WIPO9 recognises only  human authorship. It creates no room for AI authorship under the treaty. Also, the WIPO  Technology Trends 201910 notes that AI is increasingly used in creativity, but current IP  systems are human centred. This report spotlights the global debate on whether AI should be  recognised as an author. However, no official consensus has been made.  

JUDICIAL INTERPRETATION  

The court plays a huge role in the interpretation of statutes. Therefore, it has decisions on the  recognition or otherwise of human and AI authors. In the United States, in the case of Thaler  v. Perlmutter11, the D.C. District Court upheld the rejection of copyright for an artwork  generated without any human input. This decision is in line with the provisions of 17 U.S.C. § 102, and the United States Copyright Office’s statement, that AI cannot be considered as a sole  author.  

In the United Kingdom, the CDPA attributes authorship of computer-generated designs to the  individual by whom “arrangements necessary” for the creation of the work are carried out.  However, no English court has given an interpretation of “arrangements necessary” with  regards to AI system. It appears that the Act attributes authorship to the human that operates  the AI system or computer. In order to determine whether a human operator can legitimately  claim authorship of designs mainly shaped by significantly autonomous algorithms, the court  has to make a clarification or pronouncement.  

The Court of Justice of the European Union (CJEU), at the European level, has held that one  of the requirements of originality is the author’s personal intellectual creation.12 This creates  the presumption of human creativity and input. Also, under the current EU jurisprudence, AI generated works with little or no trace of human direction cannot gain copyright protection.  

Despite the decisions of the courts across various jurisdictions, the court aims to evolve in its  pronouncements. Although it is not finalised various jurisdictions like the United States, the  United Kingdom, and even China, seek to recognise the contribution of AI in creativity and  innovation. This development will help the court answer pressing questions regarding AI and  the designer.  

RECENT DEVELOPMENTS  

There are recent developments on AI-assisted designs, as policymakers and intellectual  property offices are actively debating on how the existing frameworks should adapt to this  modern time. These developments cut across the international and various national levels.  

At the international level, the World Intellectual Property Organization (WIPO) plays a huge  role in helping with discussions on AI and the designer. The WIPO Technology Trends 2019:  Artificial Intelligence report recognises AI as a transformative force in the creative industry. It  also provides a forum for academics, industry stakeholders, and even the governments, to  examine AI-related authorship and ownership questions, through the WIPO Conversation on  IP and Frontier Technologies. WIPO creates the awareness that although treaties like the Berne  Convention affirm human authorship, they should be interpreted with the consideration of new  technologies.  

Within the European Union, the legislative reform has not yet extended authorship to AI.  However, the EU Artificial Intelligence Act13 adopted in 2024 acknowledges the widespread  of the use of AI in creativity. This lays a foundation for future legal debates on AI and the  designer.  

Within the United Kingdom, the Intellectual Property Office (UKIPO) conducted consultations  in 2021 and 2022, centred on “Artificial Intelligence and Intellectual Property.” Although it  was concluded that no immediate legislative change was needed, guarantee was made to monitor and support developments and further research on how AI relates to copyright and  design law.  

Within the United States, the Copyright Office issued guidance to clarify that works generated  without human creation/authorship cannot be registered. The Office recognises the protection  of works where AI is used as merely a “tool” under human creative control.  

RECOMMENDATIONS  

Below are some recommendations on the conversation of AI and the designer.  

First, there should be clarity, when drafting statutes. For example, the CDPA, which does not  clarify what “necessary arrangements” means, creates uncertainty and ambiguity in the  determination of the holder of design authorship. A judicial or legislative update is required, in  order to expressly address human and AI collaboration in modern times.  

Second, there should be international coordination. WIPO’s ongoing dialogues offer a platform  for making distinct approaches consistent. It is trite to note that without coordination, legal  consistency will be undermined, as there would be different rules across various jurisdictions.  

 Finally, where human input is vague or too generic, AI’s role should weigh more heavily. In  such cases, the programmers of the AI system should have substantive rights, or shared  authorship, in order to reflect genuine creative contribution.  

CONCLUSION  

The initial positions on authorship and originality have been challenged as a result of the rise  in the use of AI in design creation. Although human creativity is emphasised, there are still  growing questions where AI’s autonomy is significant. Courts and policymakers are currently  exploring reforms, nonetheless, there is a need for more definitive statutes, and international  coordination. All-in-all, the law has to evolve and recognise AI’s contribution without  undermining human contribution. This ensures balance between innovation and protection. 

BIBLIOGRAPHY  

PRIMARY SOURCES  

1. Copyright Act of 1976, 17 U.S.C.  
2. Copyright, Designs and Patents Act 1988, c. 48 (UK).  
3. Council Regulation 6/2002, 2002 O.J. (L 3). 
4. Convention on the Grant of European Patents (European Patent Convention), Oct. 5,  1973, 1065 U.N.T.S. 199.  
5. Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June  2024 on Artificial Intelligence, O.J. (L 1689) 1 (EU).  
6. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as  revised at Paris July 24, 1971, 828 U.N.T.S. 221.  
7. Case C-5/08, Infopaq Int’l A/S v. Danske Dagblades Forening, 2009 E.C.R. I-6569. 
8. Thaler v. Perlmutter, 2023 WL 5333236 (D.D.C. Aug. 18, 2023).  

SECONDARY SOURCES  

1. World Intellectual Prop. Org., WIPO Technology Trends 2019: Artificial Intelligence (2019), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1055.pdf. 

1 Copyright Act of 1976, 17 U.S.C.  

2 Copyright, Designs and Patents Act 1988, c. 48 (UK).  

3 Council Regulation 6/2002, 2002 O.J. (L 3).  

4 Convention on the Grant of European Patents (European Patent Convention), Oct. 5, 1973, 1065 U.N.T.S. 199.  5 Copyright Act of 1976, 17 U.S.C. §102 (2018).  

6 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.2 (3d ed. 2021).  

7 Copyright, Designs and Patents Act 1988, c. 48, § 9(3) (UK). 

8 Council Regulation 6/2002, arts.4-6, 2002 O.J. (L 3) 1 (EC). 

9 Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris July 24,  1971, 828 U.N.T.S. 221.  

10 World Intellectual Prop. Org., WIPO Technology Trends 2019: Artificial Intelligence (2019),  https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1055.pdf.  

11 Thaler v. Perlmutter, 2023 WL 5333236 (D.D.C. Aug. 18, 2023).

12 Case C-5/08, Infopaq Int’l A/S v. Danske Dagblades Forening, 2009 E.C.R. I-6569.

13 Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 on Artificial  Intelligence, O.J. (L 1689) 1 (EU).