Can AI be truly creative and what does this mean for copyright?

Artificial intelligence is reshaping how we create art, music, writing and design, but should works made with AI receive the same copyright protection as those created solely by humans?

University of Auckland law researcher Dr Joshua Yuvaraj says they should not.

His paper, published in the Singapore Academy of Law Journal, argues that AI is more than a tool yet not fully creative, meaning AI-assisted works should receive a different level of copyright protection.

“Copyright law must reflect the lopsided division of intellectual labour in AI-assisted creation,” he says.

In New Zealand, copyright applies automatically when an original work is created, such as a painting, book or film, and in most cases lasts for the creator’s lifetime plus 50 years. But as AI takes on a greater role in producing creative work, questions are emerging about whether the same rules should apply.

If AI is considered a tool, like graphic design software, cameras or stationery, then copyright law should, in theory, treat outputs generated by AI no differently from those generated by people using such tools, and the resulting work should be entitled to the same scope and duration of copyright, says Yuvaraj.

“Yet if AI is distinctly creative in its processes, copyright law should treat the resulting outputs with caution, perhaps with little or no protection, because copyright law’s goal is to cultivate human creativity.”

To assess how AI-assisted works should be treated, Yuvaraj examined how scholars define creativity. Drawing on research from areas including neuroscience, anthropology and psychology he explored the cognitive and social processes that lead to creative output.

“Copyright law is frequently justified on the basis that it promotes creativity,” he says. “But we can only judge whether AI-generated works should be protected if we understand whether those works are truly ‘creative’.”

His conclusion is that AI occupies a middle ground.

“My personal take, and the conclusion of the paper, is: AI is its own thing. It’s more than a tool, but not fully creative,” he says. “AI is derivative and lacks intentionality, which is often where the process of creativity begins. It cannot yet produce the kind of surprising, ‘outside the box’ thinking humans can.”

This distinction matters, he says, because AI changes the traditional relationship between a person and their tools. When a photographer uses a camera, for example, the human determines the composition and meaning of the image. With AI systems, however, a larger share of the intellectual labour can be performed by the machine.

Because of this shift, Yuvaraj argues copyright protection should reflect the reduced level of human creative input. He suggests AI-generated works should enter the public domain sooner, allowing others to reuse and build on them.

His research proposes a shorter copyright term for such works: 50 years from creation rather than the current life of the author plus 50 years.

He also argues the law should clearly define the author of an AI-assisted work as the person who provides the instructions, ensuring there is a clear human rights holder where protection applies. More complex cases should be assessed by courts based on the relative contribution of human and machine.

Yuvaraj says a 50-year term is not ideal and could be shorter, but it reflects international treaty obligations that set minimum standards for copyright protection.

“When it comes to AI-generated works, we need balanced copyright policymaking that addresses the real risks to human creativity without stifling the innovation and creative opportunities AI can offer,” he says.

An urgent moment for New Zealand copyright law

New Zealand began reviewing its Copyright Act in 2018, but the process stalled around 2019. Yuvaraj says the Review, when it resumes, presents an opportunity to rethink how intellectual property law responds to rapid technological change.

“This is an urgent moment,” he says. “We need to think clearly about reshaping our laws to reflect the fast-moving ways we create today. New Zealand has an opportunity to be a world leader in designing copyright rules for the age of AI.”