Copyright FAQ

The test for any new work to be protected by copyright is that it has been created by a human being and it is sufficiently original in its expression. These requirements must be considered in applying the above question to any specific work. Note that generative AI is a tool – albeit a highly sophisticated tool – that a creator can use in developing a new work provided that new work is sufficiently original and unique to them.

The generative AI system itself cannot own copyright as only human beings can do so. As the user of the generative AI system that has used your own work and prompts to create a new work, you are potentially the copyright holder of the new work but with many provisos.  Your new work has to be sufficiently original in its expression to qualify as a new work protected by copyright that you, and you alone as an individual creator, could have produced. Furthermore, if the generative AI system you have used has been trained using multiple copyright works – whether with or without permission – there is the possibility that much of your ‘new’ work is actually borrowed verbatim from these existing works. 

When you generate work using generative AI it is good practice to declare what you have used and how.

Copyright protected material cannot in principle be fed into a generative AI tool without permission of the copyright holder. As an individual, it is necessary to obtain a licence. However, an exception for ‘text and data mining’ by machine reading was included in the EU Digital Single Market (Copyright Directive) of 2019 and translated into Irish law in 2020, with the important proviso that any copyright holder can opt out of the exception. 

Generative AI and the use of ‘large language models’ (LLMs) poses many challenges to current copyright law and it is expected that new legislation and case law will clarify the rules in time. The key principles to bear in mind at the present time are that only human beings, and neither non-human animals nor machines, can own copyright, and that any copyright material can be used to ‘train’ an AI system only with the permission of the copyright holder. An exception for ‘text and data mining’ was introduced into copyright law in 2019, but this gives copyright holders the ability to opt out of these uses and the right to be afforded the opportunity to do so. Any system that has used copyright material without this permission/against the wishes of a creator who has opted out, is guilty of infringement and therefore anyone using that system to generate new work is a party to that infringement.

‘Fair dealing’ refers to a bundle of copyright exceptions that allow copying or using limited extracts of a work for certain non-commercial purposes without the permission of the creator. Fair dealing only applies to works which have been lawfully made available to the public. Uses under the fair dealing exceptions include:

• Research and private study (for a purpose and to an extent which will not unreasonably prejudice the interests of the owner of the copyright). Does NOT apply to sheet music!
• Criticism and review
• News reporting
• Caricature, parody and pastiche

In Ireland the term ‘related rights’ means rights extended to third parties, such as the publisher of a book or the record company making a musician’s work available, for the work they add to that of the author.

Other related rights are:

• Rights in performances: performers, producers and broadcasters are entitled to remuneration for the use of their work and to determine how it can be used.
• ‘Sui generis’ rights relate to the unusual occasions when a work that is out of copyright (usually because the author has been dead for more than 70 years) is made available for the first time. These rights confer copyright protection, but not moral rights, on the publisher/producer of this work for 25 years and were introduced as an incentive to publish previously unpublished work.
• Artist’s resale rights, or ‘Doit de suite’ gives a living artist a share in the increased value of their work when it is resold at a higher price than they were originally paid for it.

This term is often misunderstood. For a work to be ‘in the public domain’, copyright must have expired (70 years after the author’s death) or the author must have deliberately put it in the public domain using a Creative Commons licence or similar. Just because a work is widely and freely available on the internet does not mean it is free of copyright; all copies may be infringing copies.

Copyright does not protect the information, data, ideas, or principles in a work. It protects the way those aspects are expressed provided that the expression is original to the work [link to test of originality]. These aspects can be used when writing your own text or creating another work provided the new work is original in its new expression of those ideas, principles and information. However, it is always good practice to acknowledge your sources.

Copyright also does not protect names, titles, slogans or phrases. These have to be protected by being registered as Trade Marks under separate legislation.

To adapt a work, you need the permission of the original author. You can, however, create a new work based on themes and ideas from someone else’s work, which are not in themselves protected by copyright, provided your expression of those themes and ideas is sufficiently different and original. [link to threshold of originality]

The © symbol is an international symbol used before the creator’s or copyright holder’s name in a work that is protected by copyright. By using the copyright symbol, you can indicate who owns the copyright to the work. However, it is not necessary to use the © symbol for copyright to arise or for protection to be obtained. The absence of a copyright statement or the © symbol from a work does not remove copyright protection from a work that meets the threshold for originality of expression. In Ireland, copyright arises, and protection begins, as soon as the work is created, and no registration or other action is required.

There are no universally accepted formats for using the © symbol. The most common format is Copyright © [author’s or copyright holder’s name] and the first year of publication. The word “copyright” can also be omitted. For example, © ICLA 2024.

In Ireland, copyright lasts for the author’s lifetime plus 70 years after their death. This means their work comes out of copyright on 1 January of the first year after they have been dead for 70 years. In the case of jointly created works, the protection period is calculated from the end of the year in which the last surviving author died. For example, in the case of films, the protection period is calculated from the year of death of the last surviving main director, screenplay writer, dialogue writer, or composer of the film’s music.

This period of 70 years is the same for literary, dramatic, musical and artistic works, designs, films, sound recordings, computer-generated works and computer programs.

The period for broadcasts is 50 years.

A publisher has copyright protection for the typographical arrangement of a published work for 50 years.