Protection of IP in the age of Claude Code

As with most LLM provider terms of service, Anthropic’s Commercial Terms of Service confirm that when you use Claude Code:

• Any IP in the output belongs to you, the customer (section B)
• Anthropic indemnifies the customer against a claim that the output infringes a third party’s IP rights (section K.1).

For anyone using Claude Code to assist with software development – whether for their own purposes or for a client – Anthropic’s confirmation of ownership supported by an indemnity is good news.

So far so straightforward.  A trickier question is whether your Claude Code-generated software code benefits from any IP rights, and specifically copyright, in the first place.

In this article we look at the status of copyright protection of AI-generated software code in the UK, and also briefly look at the position in the EU and in the U.S.  We conclude with some practical suggestions how to manage some of the risks involved.

UK

In common with most countries the UK provides ‘standard’ copyright protection for human author-created works.  Under the UK Copyright, Designs and Patents Act 1988 (“CDPA“) copyright subsists in “original literary, dramatic, musical or artistic works” (CDPA, s.1), with literary work defined to include computer programs (CPDA, s.3).  The originality of a work must meet the “author’s own intellectual creation” test which derives from the EC Copyright Directive 2009, and which the UK courts have confirmed continues to apply post-Brexit.   Copyright continues for 70 years from the end of the calendar year in which the author dies (CPDA, s.12).

Unlike most countries however the UK has a separate regime for the protection of computer-generated works.  A computer-generated work (CGW) is defined as a work “generated by a computer in circumstances such that there is no human author of the work” (CDPA, s.178).  Copyright in a CGW continues for 50 years from the end of the calendar year in which the work is made (CDPA, s12(7)).

CGW cannot, by definition, be assessed by the “author’s own intellectual creation” test applicable when considering whether human-authored works has sufficient originality to be eligible for copyright protection.  There is therefore some dispute about the circumstances in which the CGW regime will actually apply.  The most widely held view appears to be that copyright protection is available to a computer-generated work which would be original had it been created by a human.

Where copyright does subsist in AI-generated code under the CGW regime, authorship (which with some exceptions also means ownership) is ascribed to the person who “undertakes the necessary arrangement to create the work” (CDPA, s.9(3)).  Determining who makes the necessary arrangements in the case of Claude Code-generated software may not be straightforward; if the user provides detailed and well-defined prompts there is a strong argument that they have made the “necessary arrangement” and as a result they are the author; conversely where the user only communicates a general idea or concept via prompts and Claude Code makes the key structural and expressive choices in the code it’s likely that it’s Anthropic which has made the necessary arrangement and is the author.  In most circumstances this will all be academic because the IP in the code vests in the customer under Anthropic’s Terms of Service.  However software developers who are using Claude Code (or any other AI coding assistant for that matter) may want to check their client contracts, including any restrictions on sub-contracting the development work to third parties and any ‘original author’ warranties.

EU

The EU provides ‘standard’ copyright protection for human author-created works, including software, much in the same way as the UK does.  The EU does not however have an equivalent to the UK’s CGW regime.  As a result software code generated by Claude Code without human creative control will have no IP protection at all.

Furthermore, a recent decision by a Munich court has confirmed that even when a human is involved the level of creative control that a human must contribute in order for copyright to subsist is very high.  The case concerned three AI-generated logos (one created with a single, simple prompt, one with a 1,700-character prompt, and one with the design of the logo refined on an iterative basis by successive prompts), all of which were held by the court to lack sufficient human creative control in order for copyright to subsist.  The court did say that it’s possible for copyright to subsist in AI generated output but only if the human-created elements forming part of the prompts are so dominant in the output that the work can be regarded as the author’s own original creation.

U.S.

In January 2025 the U.S. Copyright Office (“USCO”) published Part 2 of its Report on Copyright and Artificial Intelligence.  Its conclusions and recommendations included the following:

• Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements
• Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
• Based on the functioning of current generally available technology, prompts do not alone provide sufficient control

In March 2025 the USCO’s approach to AI-generated outputs was affirmed by the U.S. Court of Appeals for the District of Columbia in Thaler v. Perlmutter.  The USCO’s approach has however not yet been considered by the U.S. Supreme Court.

For the time being the position in the U.S. is therefore not dissimilar in effect to that in the EU: copyright in Claude Code-generated software code can only be registered (i.e. subsist) where and to the extent that there is sufficient human creative control.

Managing the risk

Determining whether copyright subsists in the software that Claude Code has written for you, and if copyright does subsist deciding who the owner of the copyright is, will not always be straightforward. Although the outcome will depend on which legal system applies and the factual circumstances, you may want to consider the following:

• How important is copyright protection for the software? If the software will be staying in your IT environment and can be protected as a trade secret, or the software has limited commercial value, the importance of robust copyright protection may be low.
• If copyright protection is important, maximise the chances of your Claude Code-generated software code passing the human creative control test by maintaining comprehensive records, including:
  • non-AI generated design briefs, architecture notes and other creative elements
  • prompt histories
  • interim results and tests
  • post-generation human edits
• If engaging a third party to develop software again consider how important copyright protection is; for example will you be exploiting the software commercially or just using internally?  If it is important then agree appropriate limits and rules regarding the third party’s use of Claude Code.
• And if you’re the one developing software for a commercial client, consider obtaining not only the client’s agreement to using Claude Code but an acknowledgment from the client that your use of Claude Code means that the software may result in reduced or no copyright protection.