NIROGINI THAMBAIYA, KANCHANA KARIYAWASAM AND CHAMILA TALAGALA |
Artificial Intelligence (AI) is no longer just a buzzword – it’s reshaping how we live, work, and create. From composing music and generating images to writing articles, AI’s creative capabilities are challenging long-held assumptions about authorship and originality. But in Australia, copyright law is still playing catch-up.
So, what happens when a machine creates something? Can an AI be an author? Should AI-generated works be protected by copyright? And if so, who owns that copyright?
The rise of creative machines
Since the launch of tools like ChatGPT, DALL·E 2, and Midjourney, we’ve seen an explosion of AI-generated content—text, images, video, music, and even software. These tools don’t just assist humans—they can act autonomously, producing outputs with little or no human input.
This rise of generative AI raises a key question:
Can something created by a machine qualify for copyright protection?
Australia’s Copyright Act 1968 (Cth) was drafted with human creators in mind. It recognises an “author” as the person who creates the work—and that “person” has always meant a human being.
Understanding AI-created content: assisted vs generated
There are two main categories of AI-related creative output:
- AI-assisted works: The human plays a central role—guiding the process, editing outputs, making key decisions. These works are usually protected as they reflect human intellectual effort.
- AI-generated works: These are created by the AI with little or no human involvement beyond AI programing. The human contribution is minimal.
While this distinction seems clear, it’s often hard to draw the line. AI still depends on humans—training models, crafting prompts, and curating outputs. So, is a work truly AI-generated if a human shaped the conditions for its creation?
Copyright and originality: the human element
TTo be protected under Australian copyright law, a work must:
- Fall into one of the categories of subject matters (artistic, literary, dramatic or musical works) and subject-matters other than works (films, sound recordings, broadcast and published editions).
- Be original (not copied),
- Be recorded in material form (e.g., written, drawn, or saved), and
- Have a human author.
Australian copyright law states only a human can create a protected work. If AI produces a song or story without human intellectual input, it likely doesn’t qualify as “original” under the law.
Current interpretations suggest AI-generated works are not protected under the Copyright Act—meaning they may fall into the public domain instantly. Anyone could use them freely, without permission or payment.
Who owns AI-generated works?
If AI-generated content meets the requirements of copyright protection, who would own the rights?
- The AI itself? Not possible under current law, as AI is neither natural nor a legal person.
- The AI programmer? Their role , is tied to the final output, and involves case-by-case analysis to decide.
- The AI user? Possibly, if their input shows significant intellectual effort—but often it doesn’t.
- The AI owner? Ownership may be attributed to the person or entity that invested in AI. .
None of these options align with the current Australian Copyright law. That’s why change is needed..
The case for legal reform
There’s a growing consensus that Australia’s copyright framework needs modernising.
One model comes from the UK Copyight, Design and Patent Act 1988 (CDPA), where computer-generated works are treated as a distinct category, and copyright is granted to the person who made the necessary arrangements for their creation. This more flexible approach sidesteps the strict human authorship requirement.
Australia could follow suit by introducing a separate category for AI-generated content, with its own rules on ownership, rights, and duration. Without reform, two major risks loom:
- Loss of protection: Valuable AI-generated content could be unprotected and unmonetised.
- Legal uncertainty: Creators, platforms, and users won’t know their rights or responsibilities—leading to disputes and stalled innovation.
A human touch is still required
In Australia, only works with meaningful human input are protected. Without that spark of human creativity, AI creations remain outside the bounds of copyright law. This ensures that copyright is granted not only for the final product but also for the creative effort behind the work.Recommended actions: Preparing for an AI-creative future
As AI continues to evolve, everyone involved in the creative economy—from artists and academics to startups and policymakers—needs to stay informed and proactive. Here are two key actions to consider:
1. Advocate for legal reform
Support calls for copyright law reform to address the challenges posed by AI-generated works. Engage with government consultations, industry bodies, or academic networks pushing for clearer legal guidance in this emerging space.
2. Monitor global developments
Keep an eye on how other jurisdictions—such as the UK, EU, and U.S.—are handling AI and copyright. These global precedents may influence future Australian reforms and offer alternative models to consider.
Nirogini Thambaiya and Kanchana Kariyawasam are members of the Griffith Asia Institute, Griffith University, and Chamila Talagala is a member of the Asia Pacific School of Business and Law, Charles Darwin University.
This article is a synopsis of the journal article, Thambaiya, N., Kariyawasam, K., & Talagala, C. (2025). Copyright law in the age of AI: analysing the AI-generated works and copyright challenges in Australia. International Review of Law, Computers & Technology, 1–26. https://doi.org/10.1080/13600869.2025.2486893
