Creative Machines: Intellectual Property Law in the Age of Artificial Intelligence
The rise of generative AI has engulfed creative industries everywhere—from music to writing to creating art. This article argues that the UK’s distinctive legal response to this phenomenon: The Copyright, Designs and Patents Act 1988 (CDPA), s.9(3), is doctrinally ill-suited to contemporary generative AI and cannot meaningfully accommodate modern generative AI systems [1]. I contend that the provisions undermine core principles of originality and creative responsibility in UK copyright law.
While UK copyright law aims to protect works resulting from human effort, I argue that originality requires a conscious creator capable of making creative decisions. This is rooted in University of London Press, which established the 'sweat of the brow' doctrine [2]. Under this 'skill, labour, and judgment' test, a work is only original if a person exerted mental effort; because an autonomous machine cannot exercise personal judgment, its output fails this traditional test. Moreover, Infopaq dictates that copyright only rewards an author's 'own intellectual creation’ [3]. Historically, this reinforced the law's preference for human artistic expression over purely mechanical function. Ultimately, this human-centered view of creativity creates a fundamental conflict with works generated independently by machines, as they lack the subjective intent required for legal protection [4].
Furthermore, the Copyright, Designs and Patents Act (CDPA) 1988 attempted to bridge the gap between human and machine through section 9(3), which gives authorship to the person who made the “arrangements necessary” to create the computer-generated work. However, I argue this statutory fix assumes a clear, identifiable link between human input and final output. In Express Newspapers plc v Liverpool Daily Post, the court likened the computer to a mere tool, similar to a pen [5]. This "tool" analogy was subsequently refined in Nova Productions Ltd v Mazooma Games Ltd, where the court held that a human author must still exercise sufficient creative control over the specific visual results [6]. In modern generative AI systems, however, this link is increasingly weakened. The machine’s autonomous "choices" might supersede the user’s initial prompts, rendering the "arrangements" test in s.9(3) conceptually strained. Ultimately, this statute cannot accommodate the unpredictable nature of contemporary machine-generated works.
Under Section 9(3) of the CDPA 1988, the author of a computer-generated work is defined as the person who made the "arrangements necessary" for its creation [7]. Nevertheless, as AI systems grow more autonomous, it is increasingly ambiguous whether this role belongs to the developer, the user, or the platform. This lack of judicial guidance creates significant legal uncertainty. The UK Supreme Court’s ruling in Thaler v Comptroller-General of Patents provides an answer by deciding that an AI cannot be an "inventor," which prompted the Court to reinforce a human-centric approach to intellectual property [8].
This article further argues that extending copyright to AI outputs without clear human input turns authorship into a "legal fiction", granting rights without real creative responsibility. This policy risks over-extending exclusive rights, unfairly shrinking the public domain to favor tool owners over true innovators. Essentially, rewarding algorithmic outputs decouples legal protection from the human intellectual effort it was originally designed to reward.
While incremental reform of s.9(3) CDPA 1988 may be politically expedient, it is increasingly detached from technological reality. The Government’s cautious approach, reflected in the 2021–2023 UKIPO consultations, arguably stretches the notion of “arrangements” to encompass AI prompting, thereby equating mechanical instruction with creative labour [9]. Such an approach risks trivialising authorship by attributing legal significance to inputs that lack meaningful creative control. It also substitutes doctrinal clarity for a fragmented, case-by-case judicial response, ill-equipped to reconcile traditional conceptions of human authorship with the autonomy of generative AI systems. In doing so, the law prioritises the preservation of existing statutory language over conceptual coherence, diluting the philosophical integrity of authorship and creating uncertainty within the digital economy.
In conclusion, the rise of autonomous generative AI exposes a fundamental tension within UK copyright law, a system grounded in human intellectual creation is increasingly applied to outputs that lack meaningful human authorship. Section 9(3) CDPA 1988, once a pragmatic solution, now risks obscuring rather than resolving this mismatch. A more coherent approach may require reconsidering the provision, recognising certain AI-generated works as part of the public domain, or introducing a limited, unique form of protection. If UK copyright law continues to treat machine output as human authorship, it risks eroding the conceptual foundations on which copyright itself depends.
References
[1] ‘Copyright, Designs and Patents Act 1988’ (Legislation.gov.uk2020 <https://www.legislation.gov.uk/ukpga/1988/48/section/9>.
[2] University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601
[3] Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569
[4] Lionel Bently and Brad Sherman, Intellectual Property Law (Oxford University Press 2022) 734 734 <https://www.oxfordlawtrove.com/display/10.1093/he/9780198869917.001.0001/he-9780198869917>.
[5] Express Newspapers plc v Liverpool Daily Post & Echo [1985] 1 WLR 1089
[6] Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219
[7] ‘Copyright, Designs and Patents Act 1988’ (Legislation.gov.uk2020 <https://www.legislation.gov.uk/ukpga/1988/48/section/9>.
[8] Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49
[9] Intellectual Property Office, ‘IPO Transformation Programme: Second Consultation’ (GOV .UK22 August 2023)<https://www.gov.uk/government/consultations/ipo-transformation-programme-second-consultation/ipo-transformation-programme-second-consultation> accessed 15 February 2026.
Bibliography
Primary sources
Express Newspapers plc v Liverpool Daily Post & Echo plc [1985] 1 WLR 1089
Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219, [2007] Bus LR 1032
Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49
University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601
Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569
Secondary sources
Bently L and Sherman B, Intellectual Property Law (Oxford University Press 2022) 734 <https://www.oxfordlawtrove.com/display/10.1093/he/9780198869917.001.0001/he-9780198869917>
‘Copyright, Designs and Patents Act 1988’ (Legislation.gov.uk2020 <https://www.legislation.gov.uk/ukpga/1988/48/section/9>
Office IP, ‘IPO Transformation Programme: Second Consultation’ (GOV.UK22 August 2023 <https://www.gov.uk/government/consultations/ipo-transformation-programme-second-consultation/ipo-transformation-programme-second-consultation> accessed 15 February 2026.
Image Credits
Steve Johnson on Unsplash <https://unsplash.com/photos/a-persons-head-with-a-circuit-board-in-front-of-it-WhAQMsdRKMI>
