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Arts & Communication Copyright protection for AI-generated works

AI and copyright. The DMCA places limits on service regime. This differs from a special protection regime in
providers’ practices related to transitory communications that a “special computer-generated works” regime does
and system caching. Specifically, if a service provider not necessarily involve a new or distinct type of protection.
“merely acts as a data conduit, transmitting digital To accommodate works created by AI, special protection
information from one point of a network to another at under copyright law may only require adaptations to the
someone else’s request,” then the provider is limited in existing framework, such as revising the requirements for
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its ability to interfere with or gain access to that digital protection and determining who should hold the rights.
information . In addition, if a service provider is liable “for Article 7 of the European Database Directive, which
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the practice of retaining copies, for a limited time, of material provides protection for databases without the need for a
that has been made available online by a person other than creative process typically attributed to human authors,
the provider, and then transmitting it to a subscriber at serves as an example of sui generis protection. In contrast,
his or her direction,” then the service provider is only the protection of computer-generated works under the
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permitted to “retain the material (copy(ies) provided by United Kingdom’s CDPA constitutes a special regime.
the person who requested) so that subsequent requests In Vietnam, the 2005 Law on Intellectual Property
for the same material can be fulfilled by transmitting the does not have any regulations on copyright protection
retained copy, rather than retrieving the material from the for AI-generated works. Under the current law, Vietnam
original source on the network” . Thus, the provisions of recognizes organizations or individuals as copyright
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the DMCA, together with Title II – “Online Copyright holders, and entities such as computers, robots, or AI
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Infringement Liability Limitation” – suggests that United cannot be considered as copyright holders. Compared
States lawmakers implicitly acknowledge the existence to the laws of the United States or the United Kingdom,
of copyright in cyberspace. In other words, “material” Vietnam’s Law on Intellectual Property does not yet address
or “digital information” in cyberspace is recognized as the issue of AI-generated works. This gap is primarily due
being subjected to copyright. In addition, the title “Online to the 2005 Law on Intellectual Property (amended and
Copyright Infringement Liability Limitation” reflects the supplemented in 2009) and its associated regulations,
legislators’ intention to create a mechanism for protecting which lack clear and unified definitions for the concepts
works in the online environment from infringement. This of “works” and “authors” and “human contribution” to the
effort may provide a foundation for copyright protection creation of a work.
of works created by AI, as these works are predominantly
created in cyberspace. First, the Vietnam Law defines a “work” as “a creation
of the mind in the literary, artistic or scientific domain,
In the United Kingdom, the intellectual property law whatever may be the mode or form of its expression.” This
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system grants copyright to programmers who create AI definition refers to the “creation” itself but does not specify
programs. The concept of copyright protection for works whether a distinct human imprint is required to establish its
created by computers was addressed early on, specifically originality. As currently framed, this provision implies that
in the Copyright, Design and Patent Act 1988 (CDPA). non-human creations could also be eligible for protection
Under the CDPA, a computer-generated work is defined as under copyright law. Although the provision can be further
“the work is generated by a computer in circumstances such clarified by stating that “the protected work., must be
that there is no human author of the work” (Article 178 of created personally by authors through their intellectual labor
the CDPA 1988). This clarification provides a foundation without copying others’ works,” it still does not address the
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for addressing copyright claims for works generated by AI. need for a personal human imprint (distinctive trait) in the
The United Kingdom’s approach to copyright is relatively work. The phrase “intellectual labor” does not explicitly
progressive, as it makes an exception to recognize works require such a distinctive trait, especially when compared
created by a category of “authors” who are not human. with the requirements in foreign laws, as discussed in
However, it is important to note that the European Union previous sections.
has expressed an intention to adopt a sui generis protection
In addition, the concept of an “author” is specified in
8 Limitation for Transitory Communications, The Digital the 2022 Law amending and supplementing certain articles
Millennium Copyright Act of 1998, pg.10. of the Law on Intellectual Property: “An author means a
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9 Limitation for Transitory Communications, The Digital person who directly creates a work.” If this definition is
Millennium Copyright Act of 1998, pg.10.
10 Limitation for System Caching, The Digital Millennium 12 Clause 7, Article 4 of the Vietnam Law on Intellectual
Copyright Act of 1998, pg.10. Property 2005.
11 Limitation for System Caching, The Digital Millennium 13 Clause 3, Article 14 of the VietNam Law on Intellectual
Copyright Act of 1998, pg.11. Property 2005

Volume 3 Issue 2 (2025) 5 doi: 10.36922/ac.3745