Artificial intelligence (AI) has transformed how we create, from drafting articles and producing artwork to generating music and designing software. But while AI tools like ChatGPT, MidJourney and DALL·E make content production easier, a critical legal question arises: who owns AI-generated content under Australian Intellectual Property Law?

This issue has sparked global debate. Businesses, creators, and legal professionals are grappling with how intellectual property (IP) rights apply when no human directly authors the work. Let’s explore the legal landscape in Australia and what it means for creators, companies and AI users.

Understanding Intellectual Property Law in Australia

Intellectual Property Law in Australia protects creations of the mind — including inventions, trademarks, designs, and literary and artistic works. Copyright, in particular, is automatic upon the creation of original works, protecting the creator’s right to reproduce, publish, and adapt their work.

The Copyright Act 1968 (Cth) is central to this framework, granting protection only to works created by a human author. This distinction becomes crucial when considering AI-generated content, as current law does not explicitly recognise artificial intelligence as an author.

Can AI-Generated Content Be Copyrighted?

Under Australian law, copyright only protects “original works” created by a human. Courts have consistently held that originality requires human skill and labour. Since AI-generated works are produced by algorithms rather than direct human creativity, their copyright status remains unclear.

For example:

• If a person uses AI as a tool and exercises creative judgment (e.g., editing, refining prompts, or adapting outputs), they may claim copyright protection.
• If content is fully machine-generated without substantial human input, it is unlikely to attract copyright under current law.

This distinction makes it essential for businesses and individuals using AI tools to understand how much human involvement is necessary for copyright to apply.

Who Owns AI-Generated Content?

Ownership of AI-generated works in Australia depends on the extent of human authorship. Scenarios include:

• Human-Assisted Creation - If a human plays a significant role in shaping the work, they may be considered the copyright owner.
• Fully Automated Content - Where the AI independently produces the work, there may be no copyright at all. This creates uncertainty for businesses relying on AI outputs.
• Contractual Agreements - In commercial contexts, ownership can be clarified through contracts between the AI user, developer, or employer.

This means businesses should include clear intellectual property clauses in agreements to safeguard ownership rights when using AI.

International Perspectives

Globally, courts and governments are addressing AI ownership differently. In the United States, the Copyright Office has refused protection for works created solely by AI. The UK Copyright, Designs and Patents Act 1988 allows for “computer-generated works,” but even then, ownership defaults to the person who made the “arrangements” for the work’s creation.

Australia has yet to make legislative reforms specifically covering AI content, but global trends suggest that the law will evolve. Businesses should prepare for future changes to Intellectual Property Law to remain compliant and protect their rights.

Risks of Using AI-Generated Content

While AI offers speed and innovation, relying on AI-generated works carries risks:

• Uncertain Copyright Ownership - Without clear legal recognition, content may not be protected.
• Infringement Risks - AI models often draw from existing copyrighted works, meaning AI outputs could inadvertently infringe third-party rights.
• Commercial Use Issues - Businesses face reputational and financial risks if they use AI content without clarifying ownership and licensing.

To manage these risks, organisations should adopt best practices, including reviewing licensing terms of AI platforms and seeking legal advice before publishing or monetising AI-generated content.

Best Practices for Protecting AI-Generated Content

To safeguard intellectual property when using AI in Australia, consider:

• Human Contribution - Ensure human involvement in editing, curating or adapting AI content to strengthen copyright claims.
• Contractual Clarity - Include ownership provisions in agreements with employees, contractors, and AI service providers.
• Licensing Awareness - Understand the terms of AI software licences to avoid disputes.
• Legal Advice - Engage Intellectual Property lawyers to assess risks, especially for commercial projects.

By following these steps, individuals and businesses can better protect their interests in the rapidly evolving world of AI.

AI is reshaping creativity and business, but Australian Intellectual Property Law has not fully caught up with this technological shift. Currently, copyright protections for AI-generated content depend heavily on human involvement. Purely machine-generated works are unlikely to be protected, leaving gaps in ownership and enforceability.

For creators and businesses, the safest approach is to combine AI innovation with human oversight and to ensure clear contractual and licensing arrangements. As legal reforms emerge, staying informed will be key to protecting your rights.

Contact New South Lawyers today for tailored advice on protecting your AI-related works and securing your creative and commercial interests.