Who Owns the Copyright in AI-Generated Code in Australia?

Australian copyright requires a human author who exercised independent intellectual effort, and that requirement decides whether code produced with AI help is protected and who owns it. Where the code is the product of a computer system without an identifiable human author, it may not attract copyright at all.

This page expands the existing guidance to explain the human authorship test, what it means for AI-assisted code and how ownership differs between employees and contractors.

Human authorship and AI-assisted code

Australian copyright requires a human author whose independent intellectual effort produced the work in material form.

IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 and Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2010] FCAFC 149 emphasised human authorship and original expression. The focus is on the human choices that shaped the work, not the fact that a tool was used.

In Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16, source code generated by a computer system without an identifiable human author was held not to be protected. That case is often cited for the proposition that code produced without the necessary human input does not satisfy the authorship test.

Code produced wholly by an AI tool with minimal human input may not attract copyright. Code where a developer makes substantial creative choices, edits and structures the output, for example by designing the architecture, selecting parameters, reviewing and rewriting, may be protected. The answer depends on the facts of how the code was created.

Who owns the code and what the terms say

Works made by an employee under a contract of employment in the course of employment are generally owned by the employer (s 35(6)). That default can be varied by agreement, but without a contrary term the employer holds the rights.

A contractor usually owns copyright unless it is assigned in writing signed by the owner (s 196(3)). A verbal assurance or an invoice does not assign copyright. The assignment must be in writing and signed.

AI tool terms of service also affect what rights a user has in outputs. Some tools grant the user broad rights to outputs, others retain rights or impose limits on commercial use. Those terms sit alongside the authorship question and should be checked before the code is treated as an asset for investors or customers.

Example

A startup’s contractor uses an AI coding assistant to produce a module. There is no written IP assignment. Investor due diligence flags the module because the contractor, as the human author to the extent there is one, would own any copyright that subsists, and the AI-generated component may not be protected at all where the human input was minimal. The startup’s response is to obtain a written assignment of any copyright in the contractor’s contributions, signed by the owner, and to review the AI tool’s terms for what the startup can do with the outputs.

See Also

• Queensland startup legal guide
• AI-generated content and copyright
• Developers: contractors or employees?
• Legal Matters Ep 18: AI law

This page provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.