As Artificial Intelligence (AI) becomes increasingly mainstream, its diverse applications are revolutionizing many aspects of human life. AI can answer questions, compose music, provide sales and marketing tools, generate images and artworks, and so much more. It is also proficient in data analysis, language translation, and image recognition. Its ability to create a range of materials that are potentially subject to copyright has raised novel intellectual property issues.
So, can we copyright AI-generated images in Indonesia? The short answer is probably not, partly due to their lack of unique and personal elements contributed by human creators. Also, Indonesia does not yet have a dedicated law governing AI. However, the government has started establishing a regulatory framework, which so far only provides guidelines, but a more detailed legal structure for AI is on the way.
Copyright Law in Indonesia
According to the Indonesian Copyright Law (Law No. 28 of 2014 on Copyright, as amended), copyright is the exclusive right of the author, vested automatically on the basis of the declaratory principle once works are embodied in tangible form. In simpler terms, once a creative work is put into a physical or digital form that can be perceived, the author immediately gains the exclusive right to control its use and distribution.
This right remains intact, unimpeded by any restrictions outlined in laws and regulations. The exclusive rights granted by the law cover both moral rights (the right to be identified as the author, the right to alter the work, etc.) and economic rights (the right to publish and derive benefits from the work).
The definition of work under the Copyright Law is broad, covering any work in the fields of science, the arts, and literature. This includes works produced based on inspiration, ability, thought, imagination, dexterity, skill, or expertise, expressed in tangible form.
Works granted protection under the Indonesian Copyright Law include:
- Books, pamphlets, published forms of written work, and all other written works;
- Talks, lectures, speeches and similar materials;
- Teaching aids designed for educational and scientific purposes;
- Songs and/or music, with or without lyrics;
- Dramatic works, musical dramas, dance performances, choreography, puppetry, and pantomime;
- All forms of fine art works, such as paintings, drawings, engravings, calligraphy, carvings, sculptures, or collages;
- Applied art works;
- Architectural designs;
- Maps;
- Batik artwork or other patterned arts;
- Photographic works;
- Portraits;
- Cinematographic works;
- Translations, interpretations, alterations, anthologies, databases, adaptations, arrangements, modifications, and other works resulting from transformation;
- Translation, adaptation, arrangement, transformation, or modification of traditional cultural expressions;
- Compilation of works or data, whether in a readable format by computer programs or other media;
- Compilations of traditional cultural expressions, as long as the compilation is an original work;
- Video games; and
- Computer programs.
AI Image Generators
Numerous AI image generators exist that can create images or artwork. They operate by either modifying existing images based on user uploads or generating entirely new images from scratch using text descriptions. These generators have the ability to create original, entirely new images, and realistic visuals that initially may not exist in reality.
Copyright Eligibility of AI-Generated Images
In order to be granted copyright protection in Indonesia, the author or creator must be an individual person or several individuals who individually or jointly produce works that are unique and personal. Despite being entirely new creations, images generated by AI cannot be copyrighted because they do not meet the criteria of uniqueness and personal expression required by the Indonesian Copyright Law.
Furthermore, AI cannot be considered a creator because in generating an image, it merely gathers and processes the data entered by the user. AI operates as a simulation of human intelligence processes by machines and software, resulting in the creation of innovative tools. Therefore, AI fails to satisfy the requirement of being a unique and personal author, as it lacks individual human characteristics. This view is shared by a high-ranking official in the Directorate General of Intellectual Property (DGIP) at the Ministry of Law and Human Rights, with whom we have consulted on this matter. A similar understanding was also evident in a recent case in the United States, where US District Court Judge Beryl Howell ruled that only works created by human authors are eligible for copyright protection.
Any Recent Cases?
To date, there have been no known copyrights issued by the DGIP for works created by AI. This is also confirmed during our informal discussions with an official from the DGIP. The use of AI image generators in Indonesia is still mainly for personal use, although they are increasingly being used for corporate purposes. Based on our discussions, if the DGIP were to discover a copyright derived from AI in Indonesia, its copyright recordation could be annulled.
Although no recent cases are available in Indonesia, concerns have been raised regarding AI-generated images. These concerns include the possibility that data gathered from millions of images to generate a new image may incorporate copyrighted works belonging to others, and whether proper consideration has been given to honoring the original authors' copyrights. Another concern is the potential decline in the creativity and artistic spirit of authors. In the past, creating an image or artwork could take days or even months, but with AI, the process can be completed with just seconds or minutes, impacting the value and originality of creative works.
What's Ahead?
The Ministry of Communication and Informatics in December 2023 issued a Circular Letter outlining ethical guidelines for AI use, emphasizing inclusivity, security, and accountability. A more comprehensive regulation on AI is expected to be introduced by the end of 2024 said by the Deputy Minister of Communication and Informatics in online news portal, aiming to establish clear sanctions for AI misuse, but whether it will extend to copyright protection for images remains to be seen. This anticipated regulation will likely serve as a precursor to a fully-fledged law governing the use of AI technologies and their creations in Indonesia.
As the regulatory framework for AI in Indonesia continues to develop, businesses will need to stay alert of their rights and obligations, whether trying to copyright AI-generated images or other AI-generated works.
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