27/05/2024
THE
NARUTO CASE; SHOULD ANIMALS OWN COPYRIGHT?
Intellectual Property is
a category of property that includes intangible creations of the human
intellect. All Intellectual Property have rights assigned to the owner, creator
or author of the intangible creation. Copyright is one such example of an
Intellectual Property Right and it simply means ‘the right to copy’. This means
that only the original creators of products and anyone they give authorization
to are the only ones with the exclusive right to reproduce the work. Many
questions on the ownership of copyright have been discussed and in Naruto v.
Slater, supra, 888 F. 3d 418 the
question before court was whether animals have the right to
copyright ownership.
The genesis of the case
was one photographer named David Slater who was photographing wildlife in
Indonesia. A “curious male crested black macaque” named Naruto got a hold of
some of the camera equipment that he had positioned out there in the wild and
started taking pictures. These pictures turned out to be great and Slater
licensed and published a book containing some of those pictures. People for the
Ethical Treatment of Animals (PETA), on behalf of the black macaque filed a suit,
arguing that Naruto, and not David Slater, should own the copyright since it
was Naruto that took the picture.
Slater’s main argument
was that the Copyright Act expressly excluded non-human animals from having
statutory standing. PETA on the other hand, stated that the statute, being
silent, embraced a broad constitutional notion of authorship and urged the
court to interpret the Copyright Act broadly. They asserted that denying
animals authorship rights would undermine the core principle that copyright
protection applies to all original works of authorship fixed in any tangible
medium of expression. They argued that this issue, presented as a first
impression, extended beyond animal authorship to include the copyright
protection of works generated by artificially intelligent computers. The Court
of Appeal ultimately said that Naruto, cannot own copyright in that photograph
even though it took the photo, because Naruto is not a human being, thus, the work lacked human authorship.
The effect of this
decision has rippled to now the question of Copyright Ownership in generative
AI where the jurisprudence of the Naruto Case was used. In one such case, Steven
Taylor got his copyright application for a work that he created called The
Creativity Machine rejected. Steven Taylor had created The Creativity Machine
using generative Artificial Intelligence when he sought to copyright the work.
The Copyright office said that the work was made by a generative Artificial Intelligence
tool which is not a human being. Thus, it, like Naruto’s photograph lacks human
authorship. Steven Taylor’s work couldn’t get protection, the same way that
Naruto’s photographs were also denied protection.
In subsequent cases, companies
and content creators using AI tools to produce artwork will need to ensure that
there is sufficient human involvement in the creative process to claim
copyright protection. This could make it more difficult to commercially exploit
AI-generated artworks and is likely to raise challenges for copyright
enforcement. Kenyan jurisprudence is still developing to cover questions on the
place of Artificial Intelligence in asserting Intellectual Property Rights, but
this case can give a roadmap to some of the things to consider when building
the legal framework in this field of law.
Sitienei J.
