The prospects of extending copyright to non-human creators in Australia

Abstract

While animal rights have been the subject of growing philosophical and legal interest, the domain of intellectual property rights for animals remains underexamined. This article examines whether non-human animals could qualify for copyright protection under Australian law. Focusing on the requirements of originality and authorship by a ‘qualified person’ under the Copyright Act 1968 (Cth), it argues that some animal-created works may satisfy the originality threshold and, if animals were recognised as legal persons, could meet the authorship requirement. The article also addresses objections based on copyright’s incentive rationale, concluding that legal protection does not depend on an author’s awareness of incentives. While not arguing that animals should hold copyright, the article demonstrates that, in principle, they could under current law.

The idea of non-human animal rights has gained significant traction in recent years. ¹ While there is a well-established and thorough body of moral and philosophical theory surrounding animal rights, ² the nature and implications of legal animal rights remain largely underexplored. One such underexamined area is the extension of intellectual property rights to animals. This article seeks to explore this issue within the context of Australian copyright law, arguing that if animals are to be recognised as bearers of rights, their works could be protected under the current Australian copyright regime. ³

This proposal may at first appear odd. Just as craftsmanship, mathematics, language or humour have long been considered uniquely human, art and the creation of works are also often regarded as distinctly human. ⁴ However evidence might suggest otherwise as some animals appear to exhibit behaviours resembling artistic expression. Take for example the famous case of Congo the chimpanzee, whose abstract impressionist paintings ⁵ were compared to those of Jackson Pollock. ⁶ Congo demonstrated a unique brush stroke style, and appeared to have a plan and end goal as to what his finished work should be; when his caretakers insisted he keep working, he refused if he considered the work finished. Some birds often build intricate structures to attract mates, placing pebbles, seeds or leaves in symmetrical, aesthetic variations. ⁷ Chimpanzees have been observed to produce and perform percussionist playing that demonstrates rhythm and control. ⁸ Asian elephants, in certain conditions, have been observed to create shapes that closely resemble self-portraits or bouquets of flowers. ⁹ Clearly, non-human animals may appear more capable than once thought when it comes to the creation of works that would otherwise fall within the ambit of copyright protection. The question as to whether works created by non-human animals should fall within the copyright regime therefore deserves attention.

In Australia, the Copyright Act 1968 (Cth) specifies that in order to garner protection, a literary, musical, dramatic or artistic work must be original, ¹⁰ fixed in a material form, and authored by a qualified person, ¹¹ meaning an Australian citizen or a person resident in Australia. ¹² Whether or not works created by non-human animals are capable of copyright protection will therefore depend on whether they satisfy these criteria. Aforementioned examples of painting by chimpanzees or structures built by birds may uncontroversially satisfy the requirement of being materially fixed, however there is still the hurdle of the works being original, and the animal being a qualified person. Although it is unquestionable that animals are not currently Australian citizens, the proposal for animal citizenship has been extensively defended and argued before. ¹³ While these arguments are interesting, they are not the primary concern of this article, as the Copyright Act does not require citizenship to garner protection – being a person residing in Australia is sufficient. As ‘residing’ is usually taken to mean to live or stay in a place, ¹⁴ or to dwell permanently or continuously, ¹⁵ it is without question that animals within Australia satisfy this element of the qualified person requirement, and so we begin by turning to the question of whether animals are, or could be considered, persons who reside in Australia.

The proposal of animal rights and legal personhood

Personhood, generally, is a tool used to define who matters within Western liberal societies. It is a necessary mechanism for identifying the proper subject of law. Legal things lack this type of legal recognition – they are not stakeholders in decisions that may impact them, while legal persons are subjects recognised by the law. ¹⁶ This binary conception between persons and things, while subject to persuasive criticism, ¹⁷ is still present in Australian law. Traditionally, legal personhood has been viewed as being based on individual autonomy and rationality; a legal person is something that is both rights-bearing and capable of carrying out legal duties. ¹⁸ This conception of personhood came to the forefront in the New York Supreme Court’s decision in Nonhuman Rights Project, Inc v Lavery, ¹⁹ in which a chimpanzee, Tommy, was denied the writ of habeas corpus on the basis that Tommy’s incapability of bearing any legal duties precluded him from being recognised as a legal person. The most obvious issue with this approach is that it would fail to consider many humans as being legal persons, as they too are unable to comprehend or carry out their duties; a human child, or those with severe intellectual disabilities, for example. ²⁰ Given this, a more appropriate theory of legal personhood may simply be that something requires either having rights, or is capable of bearing legal duties, but both are not required. ²¹

Although it is true that in the past, some animals have been treated as having legal duties, and as being prosecutable when they have breached them, ²² this is not the case presently. The question therefore is whether animals have, or are capable of, bearing rights. As to whether animals do have rights, it can be argued that currently, animals do have rights under animal welfare legislation. Drawing on the standard Hohfeldian conception of rights, which is generally accepted in Western legal systems, rights are correlatives of duties; to say one person has a right against another is to say the other has a duty to that person. ²³ Many argue that since we have legal duties to animals and their welfare interests, animals thus have at least some claim rights at the present moment, ²⁴ therefore they ought to be recognised as legal persons.

Onto the question of whether animals are capable of bearing rights, and this will depend on our theory as to the source or grounds of rights. Traditionally, two dominant theories as to the grounds of legal rights have been advanced: the interest theory, and the will theory. The interest theory of rights stipulates that rights ultimately serve, and are grounded in some aspects of an individual’s well-being and interests. ²⁵ Legal rights are essentially ‘legally-protected interests’ that are of special importance and concern. ²⁶ On this theory, only things which are subjects of well-being and interests can be rights bearers – therefore animals are capable of having rights on this view due to their capacity for sentience and their subjective experiences of pain, suffering and pleasure. ²⁷ In comparison, the will theory states that the purpose of rights is to promote and protect some aspect of an individual’s autonomy and self-realisation; a legal right is essentially a ‘legally respected choice’. ²⁸ On this view, animals likely are incapable of rights due to their lack of autonomous capacities, although this conclusion can be questioned. ²⁹

While this short survey of animal rights theory and personhood can in no way cover the extensive body of work on the topic, it seems clear that, conceptually, extending legal personhood to animals is coherent and possible.

The originality requirement

The central requirement for copyright eligibility is that of originality, ³⁰ which is often described as the ‘innovation threshold’. ³¹ This requirement was spelled out in IceTV Pty Ltd v Nine Network Australia Pty Ltd (‘IceTV’), where French J stated that originality

requires that the literary work in question originated with the author and that it was not merely copied from another work. It is the author or joint authors who bring into existence the work protected by the Act. In that context, originality means that the creation (ie the production) of the work required some independent intellectual effort ... ³²

Given this, originality is a two-pronged requirement. First, the work must not be copied from another. This requirement maintains that the work must contain, at a minimum, some aspects of its expressions that are original. The idea, or broad theme of the work does not need to be novel or new, but there must be some part of its expressions which differentiate it from others. It is these aspects and qualities of the work, the expressions, which are eligible for protection. ³³ Secondly, the creation of the work must involve intellectual effort. The High Court stressed in IceTV that while the work must require some independent intellectual effort, this is a very low threshold, and does not require merit, novelty or inventiveness. ³⁴ Copyright will subsist in both a simple song and a great opera. ³⁵ It appears that simple exercises of intellectual effort, such as mere creative judgements or discretion will be enough. As copyright only subsists in the expressions of a work, ³⁶ the focus of an originality inquiry should be on the expressions of the work.

This emphasis on intellectual effort has not always been the case. Prior to the decision in IceTV, Australian courts, like those in the UK, had historically granted copyright to works based on mere industrious labour, or ‘sweat of the brow’, ³⁷ even where no intellectual effort, creative choices or judgement were present. ³⁸ This allowed copyright to be awarded, for example, to compilations where there has been a sufficient degree of effort in their production, even if there is no real thought or ingenuity in arranging or presenting the data. ³⁹ In this sense, Australia provided the most generous copyright protection of any copyright regime in the world. However, since IceTV, it is very likely that such theory of originality is no longer accepted, ⁴⁰ which can be seen in proceeding cases and commentary. ⁴¹

While IceTV clarifies that originality requires intellectual effort, and that mere industrious labour is no longer sufficient, further guidance is needed on the degree and quality of intellectual effort. The judgment in IceTV further indicates that the author’s intellectual effort must be ‘directed to the particular form of expression’. ⁴² This would exclude intellectual effort that is too anterior to the expression of the work, or which is only directed to the broad, undeveloped idea of the work, as opposed to the detailed and sufficiently developed expression.

There is uncertainty however as what suffices as intellectual effort being directed to the particular form of expression. A reference to dictionary definitions clarifies that to ‘direct’ is to point, aim, cause to move or work towards a certain end or purpose. ⁴³ In IceTV, the intellectual effort that was expended in the selection of information was undoubtedly done in the process of eventually producing some sort of expression later on. Nonetheless, this was insufficient for originality, as the intellectual effort in the selection process was instead primarily exercised in pursuit of business decisions. Thus, to direct intellectual effort towards an expression means the effort itself is of an expressionary nature, or the effort is closely intimate with the creation of an expression. ⁴⁴

Moreover, the intellectual effort must be sufficiently descriptive and detailed so that the expression of the work finds its origins in the intellect of the author, rather than the mere idea. It is not enough to merely engage in intellectual effort in the process of producing some sort of expression, instead, the intellectual efforts of the author must produce the specific expression which results. ⁴⁵ Thus, the resulting expression must embody the thought of the author, meaning that such expression would not exist but for the distinctive individuality of the mind from which it sprang. ⁴⁶ Given this, in situations where the specific expressions of a work do not find their origins in the intellect and intentions of the author, such expressions will not be original and subject to copyright protections.

The obvious difficulty here is determining whether such expressions flow from the intellectual effort of the author as we do not have direct access to the mental contents of individuals. Given this, we may instead look to the degree of control the author had in producing the work; if the author had a high degree of control in producing the work, then this is indicative that the resulting expressions were intentional, and are thus reflective of the authors intellectual effort. ⁴⁷ In comparison, where an author only expends intellectual effort towards the broad idea of the work, but forfeits control in producing the specific expression that results – such as letting indeterminate forces into the creation of the work – originality will likely not be found. ⁴⁸

This result can be found in an array of cases, particularly in the United States, which similarly requires intellectual effort from the author. In Toro Co v R & R Products Co ⁴⁹ it was held that the accidental pairing of a part and a number lacked copyright subsistence because the numbers were assigned ‘without rhyme or reason’ and ‘no effort or judgment’. ⁵⁰ Similarly, in ATC Distribution Group v Whatever It Takes Transmissions & Parts, ⁵¹ the court stated:

the particular numbers allocated to each part do not express any of the creative ideas that went into the classification scheme in any way that could be considered eligible for copyright protection. ⁵²

This illustrates that although the ‘author’ may have intended that some number is combined or allocated with some part, this is not enough. Originality requires that the mind of the author constructed and intended to produce that specific or particular combination of a number and part. This conception of originality may have been hinted at in Australian case law previously in Komessaroff v Mickle, ⁵³ where the court doubted that moving sand pictures could be a work of artistic craftsmanship, as the pictures formed by the object are produced by ‘forces’ and ‘not directly produced by any human hand’. ⁵⁴

In summary, originality can be cast as requiring that the work in question was not copied, and that it involves the intellectual effort of the author. This need not be a complex exercise of intellectual effort, as simple creative discretions and decisions will suffice. However, the intellectual effort must be directed towards the specific expression which results; it is not enough that the author exercised intellectual effort in the process of producing some expression. The specific expression which results must be reflective of the author’s intellectual effort and intentions. Given this, the author must exercise a relevant degree of control over the production of the work and its expression.

Animal authorship

The question now turns to whether works created by animals are sufficiently original. Do animal creators exercise and direct intellectual effort towards the expressions of the work? I believe a strong argument can be made that this is the case.

As previously noted, originality is evident when the resulting expressions reflect the creator’s intellectual effort and intentions. For some authors, intentionality is defined by five key elements: (i) a desire for a specific outcome, (ii) a belief that the action will lead to that outcome, (iii) an intention to carry out the action, (iv) awareness of fulfilling the intention while executing the action, and (v) the ability to perform the action. ⁵⁵ In cognitive ethology, research has shown that animals are capable of anticipating their actions, understanding their decision-making processes, and recognising the consequences of their choices. These anticipatory behaviours align with elements (i) and (ii), while the animals’ awareness of their actions correlates with elements (iii) and (iv), which together define intentionality. This has been demonstrated in studies using fractal mathematical indices to evaluate the representativeness of animal drawings. These studies conclude that, although chimpanzee drawings may not be as refined as those of children, they are not random; rather, they are intentional and controlled. Researchers have also noted that a chimpanzee’s artwork demonstrates indexicality through its brushstrokes, patterns, and colour choices, each reflecting the animal’s physical movements, intentions, and the decisions it made while creating the piece. ⁵⁶

The expressions created by animals do not appear to be random, but are the result of intentional decision making. In one study comparing the drawings of human children and chimpanzees, researchers noted that while the present drawing behaviours in chimpanzees is less goal-orientated than observed in humans, it is still not random; as chimpanzees display ‘a power-like distribution showing that their movements are constrained by cognitive or locomotor aspects that limit the randomness we could expect’. ⁵⁷ As mentioned earlier, Congo the chimpanzee had his own artistic standards and would decide when his painting was complete. ⁵⁸ Similarly the elephant, Ruby, would tap on jars containing the pigment she wished to use for her paintings, prompting the caretaker to fill the brush with the pigment and hand it to her. ⁵⁹ If Ruby’s caretakers provided her with a pigment she did not want, she would refuse to continue until they gave her the correct one. ⁶⁰ Seemingly, once she felt the painting was complete, she would back up and refuse to work on it any further.

It is important to reiterate that the standard for intellectual effort to satisfy originality is relatively low. ⁶¹ The simplicity or lack of novelty in these works created by animals is not the issue; what matters is whether the work and its specific expressions stem from the intellectual efforts and intentions of the creator. If the animal was simply haphazardly and randomly throwing paint at a canvas, this might lack originality. However, there are many instances where this is not the case; instead, the works are produced with intentionality and careful control by the animal. In such instances, these works should be considered original under the current state of the law, and therefore could be eligible for copyright protection.

Purposes of copyright

I have demonstrated that, under the current legal framework, some works could be considered original and authored by animals. If animals were recognised as legal persons, thus fulfilling the ‘qualified person’ requirement, copyright would naturally extend to them, as they would meet all the necessary criteria currently called for under the Copyright Act. In this case, the Copyright Act would not need to be amended to include animals’ works, although changes might be necessary regarding how to enforce these rights.

Although I have argued that copyright could be granted to animals without altering the current law of copyright, one potential objection is that copyright holds no value for animals. Critics may argue that the purpose of copyright does not apply to them, suggesting that extending these rights to animals is unnecessary. Copyright and intellectual property, particularly in the Anglo-American tradition, is often justified on utilitarian grounds. ⁶² Under this view, copyright exists only to incentivise the creation of new works. This utilitarian-incentivist theory stands in contrast to naturalist theories, which justify copyright based on the mere act of creation, regardless of whether the creator benefits from it or whether the law incentivises further creation.

If Australian copyright law is solely concerned with encouraging or incentivising the production of more works, then it could be argued that granting copyright to animals would be misguided. Professor Buccafusco’s theory of copyright reflects this sentiment, where he states that:

[i]f people do not intend their creations to be treated as works of authorship, they obviously are not creating them because of the incentives that the law provides to works of authorship. Granting such people copyrights generates social costs without any concomitant incentive benefit. ⁶³

While I understand this objection, I ultimately believe it does not undermine the case for granting copyright to animals.

First, while it is true that the Anglo-American copyright system is primarily based on a utilitarian-incentivist justification, it is incorrect to view the entire system as purely utilitarian. Scholars have consistently highlighted the historical influence and interplay between naturalist and utilitarian justifications within Anglo-American copyright law, ⁶⁴ emphasising that although copyright law tends to favour a utilitarian approach, concerns about individual property rights have been present since the inception of copyright legislation. ⁶⁵ The legislative history shows a consistent expansion of copyright protections, often with minimal focus on the costs, benefits, or effectiveness of incentivisation. ⁶⁶

Moreover, Australian copyright law recognises that one of its objectives is to prevent the unauthorised appropriation of another’s labour. ⁶⁷ Furthermore, scholars have argued that the naturalist justification for copyright can be seen in many aspects of the law, such as the prohibition on reproducing or copying works, ⁶⁸ the use of injunctions, ⁶⁹ and the principle that the author holds the first ownership of their work. ⁷⁰ While there is no space to delve further into these arguments here, they cast significant doubt on the strict utilitarian perspective that underpins the argument against granting copyright to animals.

Nonetheless, even if we accept the premise that Australian copyright law is justified solely on a utilitarian-incentivisation approach, I believe excluding animal authors on the grounds that they cannot respond to copyright incentives is misguided. Utilitarian theory can be interpreted in two main ways. The first is act utilitarianism, which holds that individual actions should produce the greatest net gains in expected utility. Applied to copyright law, assuming utility is defined in terms of incentivising the creation of new works, an act utilitarian approach would require that every specific legal decision or provision demonstrably increases creative output. ⁷¹ In other words, the question of incentives must be at the forefront of any decision within copyright law. However, this is not an accurate representation of how copyrights or intellectual property rights are generally justified. Decisions to grant or recognise rights to individual authors are not typically assessed based on whether they maximise overall utility. ⁷² In fact, even when it is known that granting rights to an author may lead to negative consequences, the rights are still granted. ⁷³

Instead, the justification and structure of Anglo-American copyright systems is often recognised as an instance of rule utilitarianism, ⁷⁴ meaning the copyright regime is justified on the basis that it generally maximises utility, rather than requiring it to always maximise utility; every specific application or extension of the copyright regime need not maximise utility. In this view, the utilitarian-incentivisation justification for copyright law applies at the level of the system or institution as a whole, and does not require every individual author to always create in response to the incentives of copyright law. As Meric Hacialefendioglu rightly points out:

copyright law protection was created as an incentive so that the number of works presented to the public would increase. However, responding to incentives is not a requirement for copyright protection. … It does not matter if [an author] cannot make a connection between the act of creating work and receiving the benefits of copyright protection, as long as there is intent to create. ... A minor for example, will know nothing about the incentives that the Copyright Act offers her but her work will be secured by the Act. ⁷⁵

If the works of minors or those with severe cognitive impairments are secured by copyright law, despite not being created in response to the incentives of the law, the same should be true of animal works. Animals do not create in response to the incentives of the law, but to withhold copyrights from them on this basis is misguided and inappropriately applies an act utilitarian justification to a system which is instead rule utilitarian in its justification. ⁷⁶

In summary, it seems that some works of non-human animals could be considered original under the current state of Australian copyright law. As such, if animals are to be considered legal persons, their works could fall within the scope of copyright protection. If, as Dane Johnson so succinctly put it, ‘animals are reaching across the interspecies divide with brushes and paint, surely there are ways for us to reach back with a stick from the bundle of rights.’ ⁷⁷