Beyond the Prompt: Provocation and authorship in Generative AI under UK copyright law

The first wave of generative AI focused almost entirely on prompts. The idea was simple. If you could phrase the instruction well enough, the system would produce something valuable. Prompting had emerged as a technical skill and sometimes as a creative one, rather than mere instruction.

As large language models mature, framing no longer captures how people actually work with these systems. Most meaningful use now happens through dialogue rather than single instructions. The model responds. It suggests alternatives. It challenges direction. It proposes a different structure tone or audience. This shift introduces a concept that is increasingly important for copyright analysis. Provocation.

What is a provocation in the context of AI?

In practical terms, a provocation occurs when a system does more than complete a task. It invites the user to make a decision.

Examples include suggesting a strategic rewrite, reframing an argument for a different audience or proposing a structural change that alters emphasis or meaning. These moments matter because they create a fork in the creative process. Something must be chosen.

Provocation is not a legal category under UK copyright law. That distinction is important. It is a descriptive term for a mode of interaction rather than a recognised doctrine. Its legal significance lies in what it reveals about human involvement.

Why Provocation matters for authorship

UK copyright law remains firmly human centric. Copyright subsists where a work is original meaning it is the author’s own intellectual creation. That test focuses on skill judgement and creative choice.

The difficulty with AI generated outputs has never been the absence of a human. It has been the uncertainty over who determined the expressive elements of the final work.

Provocations change that analysis. When a system offers multiple possible directions and the user selects one over another the user is no longer merely initiating activity. They are exercising editorial judgement. That evaluative act is central to authorship under UK law.

In other words, the creative contribution may lie less in what was typed initially and more in what was chosen deliberately after reflection.

Provocation and the limits of prompting alone

This distinction also explains why prompting alone often fails to establish authorship in outputs.

A single instruction typically operates at a high level of abstraction. It sets parameters but does not fix expression. Where outputs vary unpredictably the causal link between the human and the final text weakens.

By contrast, responding to provocations involves assessing meaning structure and effect. It is closer to the role of an editor or director than that of a typist. Notably, The Courts have long recognised editorial selection and arrangement as capable of grounding copyright.

Nothing in UK law at the time of writing suggests that this changes simply because the material being curated originates from an AI system.

The UK Copyright Act ;Section 9(3) and the role of arrangements

The Copyright Designs and Patents Act 1988 includes a specific provision for computer generated works where there is no human author. In those circumstances the author is deemed to be the person who made the arrangements necessary for the creation of the work.

This provision is often misunderstood. It does not mean that every user of an AI system becomes the author by default. The phrase arrangements necessary points to responsibility for the creative process as a whole rather than casual interaction.

Engaging with provocations strengthens the argument that a human made meaningful arrangements. It demonstrates oversight direction and control. That does not guarantee ownership, but it materially improves the position compared with one shot prompting.

Provocation as evidence rather than entitlement

It is important to be clear about what provocation does and does not do.

• It does not create copyright automatically
• It does not turn an AI system into a collaborator in a legal sense
• It does not override the requirement for originality

What it does provide is evidence. Evidence that the human exercised judgement. Evidence that the AI functioned as a tool rather than an autonomous author. Evidence that creative responsibility remained with the user.

In disputes about authorship, evidence often matters more than labels.

The current legal status in the UK

There is no binding UK authority that addresses provocations directly. The Courts have not yet ruled on whether interactive AI workflows alone are sufficient to ground copyright.

What we do know is this:

UK courts continue to reject the idea of non-human authorship. The Supreme Court has reaffirmed that position. (Thaler v Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 49). At the same time, the law has always accommodated new tools without abandoning core principles.

The law is not keeping up by reinventing itself. It is keeping up by applying established concepts of intellectual creation to new working practices. Provocation fits comfortably within that approach.

Practical implications for businesses and creators

For organisations using AI in publishing marketing or content driven industries the message is straightforward.

Ownership depends less on how clever the prompt was and more on how decisions were made and documented. Where AI suggestions are accepted blindly risk increases. Where they are evaluated rejected or reshaped by a human decision maker the case for authorship strengthens.

From a risk management perspective the safest position is one where provocations are treated as prompts for human judgement rather than instructions to be followed automatically.

Conclusion

Provocation is not a new legal doctrine. It is a useful lens.

It highlights where human creativity actually resides in modern AI workflows. Not at the keyboard alone but at the point of choice.

Under UK copyright law authorship still turns on intellectual creation. In an environment where AI increasingly talks back the act of deciding what to accept what to reject and what to refine may be the clearest evidence that a human author remains in control.

In that sense the future of copyright in AI assisted work does not belong to the best prompter. It belongs to the best editor.

For more information about Taylor Hampton Solicitors copyright practice see HERE: https://taylorhampton.co.uk/legal-services/media-law/intellectual-property-disputes/

To contact Taylor Hampton solicitors telephone: 00442074275970 or email: enquiries@taylorhampton.co.uk

Disclaimer: This article provides general guidance only and does not constitute legal advice. Civil procedure rules and case law can change. Always seek professional legal advice tailored to your specific situation before acting.

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