Generative artificial intelligence and the Nigerian Copyright Act 2023

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Generative artificial intelligence and the Nigerian Copyright Act 2023

Generative artificial intelligence and the Nigerian Copyright Act 2023

June 10, 2024

Generative Artificial Intelligence (“Generative AI”) is a form of artificial intelligence capable of producing content in response to prompts by learning from a reference database of examples.¹

The growing popularity and use of Generative AI has presented interesting challenges for copyright law globally. Issues which have come into consideration include the copyrightability of content produced using Generative AI, and the infringement of copyright by Generative AI tools which will be discussed in light of the Nigerian Copyright Act 2022.

Under the Nigerian Copyright Act, 2022, an author is defined as a “person” responsible for creating a copyrightable work² and the Act does not provide a definition for the word “person” thereby not giving room to any broader definition of the word other than its actual meaning being a human being. From this definition, it is clear that the Act only recognises human beings as authors as it does not make provision for the protection of copyright to be conferred on any bionic entity, such as, Generative AI. Therefore, under Nigerian laws, works created by Generative AI cannot be granted copyright protection. However, due to the relative novelty of this issue, Nigerian courts are yet to be confronted with any cases involving the infringement of copyright by Generative AI tools or whether works created by AI tools can be afforded copyright protection. Therefore, it is possible that this area of Nigerian law may be further developed when litigated.

When confronted with a novel issue, it is usually helpful to analyse existing precedents to find relevant guidance on how to proceed. In this case, the United States of America presents some helpful resources on this. In the United States, copyright infringement lawsuits have been filed against technology companies by copyright owners who allege that their copyrighted work have been used to train Generative AI tools.³ In December 2023, the New York Times (the “Times”) filed a lawsuit in the Federal District Court in Manhattan, against OpenAI and Microsoft for copyright infringement.⁴ The lawsuit alleges that copyrighted articles published by the Times had been used without its permission to train the Defendants’ Generative AI tools such as ChatGPT, to “generate output that recites Times content verbatim, closely summarizes it, and mimics its expressive style.”⁵(the “Time Case”). The Times Case also pushed back on the Defendants’ argument that their activities constitute fair use of copyrighted material.

The Times Case is yet to be decided and considering that the United States courts are yet to address the issue of whether the training of Generative AI tools meets the requirements for fair use under US copyright law and based on the fact that some infringement claims have also been dismissed “based on a lack of evidence that AI-created content resembles the affected copyrighted works,”⁶ it will be interesting to see what the decision of the District Court would be and the precedent it may set.

Regarding the position of the United States as to whether content produced by Generative AI tools can be afforded copyright protection, in March 2023, the United States Copyright Office (the “Office”) issued a statement of policy to clarify its practices for registering works containing material generated using AI technology. It reiterated the Office’s requirement that works submitted for registration should “be the product of human authorship.” However, for works generated by, or with the assistance of AI, the Office will determine whether the work is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine. If the traditional elements of authorship were produced by a machine”, the work will be deemed to lack human authorship and the Office will not register it.⁷

The Office further mandates Copyright applicants to disclose the inclusion of AI-generated content in works submitted to the Office for registration and provide an explanation of the human author’s contributions to the work. Therefore, applicants who use AI technology in the process of creating a work may claim copyright protection for their own contributions to the work.⁸

The Office’s approach to this matter is laudable as it acknowledges the widespread prevalence of AI and the likelihood that it is here to stay as this form of technology is continually undergoing development and as a result, more people are significantly relying on it for a lot of things including creating copyrightable work. While some may argue that affording copyright protection to Generative AI assisted work may diminish the value of work created entirely by human effort, it is important to exercise discretion in dealing with this issue so as not to eliminate all works under this category, and the Office appears to be taking this approach.

As in other jurisdictions, the question of whether copyright protection can be extended to work produced using Generative AI tools is likely to become increasingly debated in Nigeria and this is important as the rapid advancement and widespread adoption of Generative AI present significant challenges and opportunities for copyright law, particularly in Nigeria. It is important to note that Section 2 of the Nigerian Copyright Act stipulates that a literary, musical, or artistic work is not eligible for copyright protection unless some effort has been expended to give the work an original character. The phrase "some effort" allows for interpretation regarding the degree of effort required for eligibility. Therefore, the approach of considering AI-assisted works for copyright eligibility, as long as there is some human effort involved should be considered because as this technology continues to evolve and become integral to various creative processes, it is essential to consider the implications and adapt legal frameworks accordingly.

As Nigerian courts have yet to address these novel issues, there remains an opportunity for the legal system to evolve. By interpreting the requirement of "some effort" in the Nigerian Copyright Act to include human contributions in AI-assisted works, Nigeria can develop a nuanced and forward-thinking approach to copyright law. This approach will ensure that the legal protections keep pace with technological advancements while maintaining respect for human creativity and effort.