22 August 2013

Copyright and Computer Generated Works

'Curing the Authorless Void: Protecting Computer-Generated Works Following IceTV and Phone Directories' by Jani McCutcheon in (2013) 37 Melbourne University Law Review 46 [PDF]
builds on the author’s recent article ‘The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law’. That article explained how recent Australian case law has seriously undermined copyright protection for works which are substantially shaped by software such that they lack a human author. The article argued that such works, if otherwise original, should not be denied copyright protection solely because they are computer-generated. 
This article thoroughly examines and evaluates three possible reform options: (1) deeming authorship of computer-generated works; (2) classifying computer-generated materials as subject matter other than works; and (3) sui generis protection. This article will also explore the sometimes difficult issues these options generate.
McCutcheon concludes -
Part 1 addressed the arguments for protecting CGM which, but for the lack of human authorship, would have been protected as a copyright work under the Act. Being ‘otherwise original works’, these creations meet all copyright subsistence criteria other than authorship. Originality does not necessarily eliminate the potentially adverse effects of copyright protection, however, it tends to minimise them. To the extent that copyright protection for otherwise original CGM may have adverse effects, this applies to all works. Protection of such ‘nearly copyright’ works is best achieved under Option 1, since it cures the central defect — it supplies an author where one is missing. While there may be issues of interpretation of the reform provisions, there are no major obstacles to this reform option. Further, other jurisdictions have effectuated this reform model with no apparent adverse outcomes. The growing jurisprudence on the interpretation of substantially identical provisions in neighbouring common law jurisdictions can be usefully monitored. There is also useful judicial interpretation of similar statutory wording in the context of film and sound recording authorship. 
Part 1 did not engage comprehensively with the policy and other issues that surround protection for unoriginal CGM. Options 2 and 3 extend protection beyond the ‘otherwise original material’ examined in Part 1, to unoriginal material which may, or may not, merit protection. As such, they raise a plethora of issues which require further, and more careful, deliberation. However, that should not prevent early protection of the otherwise original authorless works examined in Part 1. Indeed, there are compelling arguments for separately protecting merely authorless works in Part III of the Act, and authorless and unoriginal works through some other mechanism — just as original and unoriginal material is currently divided between Parts III and IV of the Act.