Is AI Generated Work Copyrighted in Kenya?

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The issue whether work generated by artificial intelligence (AI) is eligible for copyrighted protection has so far been widely debated by legal experts in Kenya and around the globe.

USA

The United States Copyright Office has previously held that it will not register copyrights for works “created by a machine or computer program without any human intervention whatsoever”. This week, a court decided the issue in Thaler v. Perlmutter, No. 22-1564 (D.D.C. Aug. 18, 2023). The US federal court denied a purely AI generated work copyright protection.

Stephen Thaler owns the Creativity Machine, an artificial intelligence system, which he claims can generate paintings akin to the output of a human artist. The machine generated and Thaler applied to register “A Recent Entrance to Paradise” claiming it had been “autonomously created by a computer algorithm running on a machine”. He sought to claim, as the machine’s owner, copyright of the “computer-generated work”. He labelled it “a work-for-hire to the owner of the Creativity Machine”.

The US Copyright Office denied Thaler’s application contending that the image lacked human authorship, a pre-condition for valid copyright protection and stating that copyright law only extends to works created by human beings. Stephen Thaler sued raising the sole issue of whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright.

The court rejected the claim for copyright holding that human authorship is an essential part of a valid copyright claim.

Kenya

The Kenyan courts have not yet ruled on the copyrightability of AI generated work.
However, Bond Advocates LLP (a top law firm on data protection and copyright) perceives that AI generated images can be copyrighted under Kenyan law.

Kenya’s Copyright Act defines “artwork” to mean an original work of visual art created by an artist or artists, or produced under their authority. Similarly, the Act defines “author” in relation to “a literary, dramatic, musical or artistic work or computer program which is computer generated” to means the person by whom the arrangements necessary for the creation of the work were undertaken”. Thus, Kenyan copyright law attributes authorship of AI images to the person who arranged for the AI system to create. The person who makes “arrangements necessary for the creation of the work” could mean the owner of the AI system or a user.

Here are some additional things to consider when thinking about the copyrightability of AI generated work in Kenya:

  • The level of human input involved in the creation of the work. The more human input, the more likely the work is to be considered copyrightable.
  • The originality of the work. The more original the work, the more likely it is to be considered copyrightable.
  • The purpose of the work. If the work is created for commercial purposes, it is more likely to be considered copyrightable.

If you are unsure whether an AI generated work is copyrighted, it is always best to err on the
side of caution and seek legal advice. Bond Advocates LLP can advise you on this issue.