6 January 2026
Public Domain Day 2026: Duration of Copyright Protection for AI-Generated Works in the UK
HAPPY NEW YEAR
Or should we say: happy Public Domain Day! As readers of this blog will be keenly aware: the first day of January each year marks the date when creative works, previously protected by copyright, enter the public domain. Previously, we've:
- Compared the regimes in the UK and China on Public Domain Day 2025;
- Provided you with a handy table setting out the protection for various types of work on Public Domain Day 2024; and
- Waxed lyrical about John Cage, Zippy and Mr Humphries on Public Domain Day 2023.
Now, as a special treat for 2026, we're covering AI and foisting in one of our favourite artists who sadly died in 1955 (don't say we don't spoil you).
Copyright Protection for AI-Generated Works
A key question for those grappling with AI in our post generative AI enabled world, is whether works created with the assistance of AI (or wholly by AI) qualify for copyright protection and, if they do, how long for? While we'll sidestep the myriad other questions around AI, including potential infringement of copyright by input into large language models (see DLA Piper's post on the Getty Images and others v Stability AI case1 here), whether outputs infringe intellectual property rights, how far copyright exemptions/permitted uses apply to AI generated works and whether AI systems require the implementation of new copyright law provisions, you can find more information from DLA Piper on these topics here and here, as well as our AI Laws of the World guide here.
In the UK, copyright law distinguishes between works created by human authors and those generated wholly by computers. The Copyright, Designs and Patents Act 1988 (CDPA) provides that where a work is computer-generated, and no human author can be identified, the person who undertakes the arrangements necessary for the creation of the work is deemed the author. A 2006 case (Nova Productions Ltd v Mazooma Games Ltd2) held that where users had played a computer game in such a way as to create images on the screen, the person who made the necessary arrangements to create the work was the designer of the game and not the user. This would suggest that a court is likely to find that the developer of a generative AI tool and not an artist who uses it is the author, though this will depend on the arrangements between the provider of the AI system and the user. In any event the CDPA provides that the duration of copyright is 50 years from the end of the calendar year in which such a work was made.
However, where human intervention is sufficient to attribute authorship to an individual, it may be possible that the standard term of copyright protection applies (70 years from the end of the calendar year of the author's death). However, the threshold of “sufficient human intervention” remains subject to plenty of legal debate. The lack of clear judicial or legislative guidance has resulted in ambiguity for creators and users alike, with clear implications for the allocation of rights and the timing of entry into the public domain. For example, as all authors of this article are (based on looks) clearly aged 21 (though incredibly wise for their years) if one of them used generative AI to create an image then it having protection as a computer generated work until 1 January 2076 may seem impressive until one recalls that this would be closer to 21553 if the work is protectable as a human-authored artistic work. No doubt this difference will have been part of the legal team's thinking when bringing in key creative humans to the development of the forthcoming AI-led film Critterz.
Readers may be aware that the great saxophonist Charlie Parker died in 1955. This means that his virtuoso musical compositions will be part of the works entering the public domain on 1 January 2026. In-line with the above, if we imagine that: (i) 'Bird' (as he was to his pals) was British (to avoid having to look at lex loci protectionis); and (ii) that when he wrote 'Yardbird Suite' in 1946 that the CDPA applied,4 then, as the result of human creativity, the copyright in the musical work was protected for 79 years5 (until Public Domain Day 2026). However, if somehow Charlie had used AI to create “a classic bebop jazz track with a smooth melody, 32-bar AABA form, with heavy jazz improvisation”, then this work would likely be protectable only as a computer-generated work for 50 years (until 1 January 1997). Of course, this may change if “sufficient human intervention” was involved (e.g. much more specific, and one imagines: lengthy, series of prompts).
The concept of computer-generated works is not widely found in many jurisdictions (appearing to be something of a British idiosyncrasy of copyright law). For example, French, German and Spanish copyright law at present all appear to only offer copyright protection for AI-generated works where there is input by a human author (to varying degrees and being hotly debated in such jurisdictions). Where such authorship can be established (if at all), the term of protection is uniformly 70 years post mortem auctoris. Therefore, the UK currently stands apart in expressly recognising computer-generated works and providing a distinct, shorter term of 50 years from creation (which may be shorter than 70 years following the end of the author's death, but which seems better than uncertain protection or no protection at all). In keeping with the UK's continental friends, the UK regime is itself also marked by uncertainty regarding the threshold for human intervention, we anticipate that definitive guidance as to degrees on human involvement will only follow cases coming to court, the UK government taking a legislative lead6 or perhaps an instructive referral to a European Advocate General on the applicability of the Copyright Directive. We live in hope.
Nonetheless, all of the above present food for thought when creative, developers and policymakers use and offer AI systems. In particular, those using AI to create new works will need to understand and navigate the uncertainty around the duration and scope of protection for AI-generated works. This will be an acute issue where public domain concerns will complicate the management and exploitation of rights. Policymakers and those who make it their business to influence policy will also be confronted with the need to address the gaps in existing frameworks and to make their voices heard in the ensuing debate which will pitch the promotion of innovation against the protection of creative endeavour.
Appropriate action for, investigation of and policy decisions regarding the categorisation and protection of works involving AI input will always be complex as well as jurisdictionally and factually specific, for advice on any of the issues identified in this article: contact Duncan Calow and Alex Lowe of DLA Piper UK LLP.