25-10-2023

It is clear that the rise of artificial intelligence “AI” poses different challenges in different areas. One of these areas is copyright, and in particular the requirement of authorship, which will be discussed in more detail in this contribution.

Works are protected by copyright when the work (i) is expressed in a concrete form and (iii) is original. The originality principle requires that the work is “the expression of the author’s own intellectual creation” and bears “the stamp of his personality”. The work is original when a work results from the free and creative choices made by the author.

Copyright protection for works is vested in the author’s intellectual creation. It follows from the jurisprudence of the European Court of Justice “CJEU” (see Infopaq International A/S v Danske Dagblades Forening, C-5/08 and Football Dataco Ltd and Others v Yahoo! UK Ltd and Others, C-604/10) that the work must bear the stamp of the author’s personal touch. Consequently, the work and related copyrights in it can only originate from a natural person.

Copyrights (subject to moral rights that are inalienable) can be transferred by the author, natural person, to a legal person but the legal person can never be the initial author of the work.

AI-generated works raise legal questions, namely whether they can generate originality as they do not comply to the requirement of originality being provided by a natural person.

Some decisions in the United States, which shed a light on the debate, will be briefly discussed here below.

In Thaler v. Perlmutter, it was decided by the United States District Court, District of Columbia that the work “A Recent Entrance to Paradise” generated by the computer system “Creativity Machine” was not eligible for copyright protection. The US Copyright Office refused Stephen Thaler's request to register the work as a copyrighted work given “Creativity Machine” was designated as the author and the work therefore lacked human authorship. The court upheld this refusal, stating that “United States copyright law protects only works of human creation.” With the decision, the court on the one hand acknowledged that "[…], copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialised on paper”, and on the other hand stated that “human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media”. In this regard, the court makes the comparison with works made with a photo camera, which can only be eligible for copyright protection if there are “original intellectual conceptions of the author” (such as, for example, “posing the [subject] in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, […]”).

It follows from the above that to the extent there is “human contribution” AI-generated works may be eligible for copyright protection. Exactly what is to be understood by this “human contribution” and to what extent it is required is not entirely clear.

In this regard, the “Copyright registration guide: works containing material generated by artificial intelligence” of the US Copyright Office offer some guidance stating that "If a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the "traditional elements of authorship" are determined and executed by the technology-not the human user.” In contrast, the Copyright Registration Guide states that copyright protection may exist in the following cases: “For example, a human may select or arrange AI-generated material in a sufficiently creative way that the resulting work as a whole constitutes an original work of authorship. Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.” The Copyright Registration Guide was published by the US Copyright Office after its decision refusing copyright protection to photographs generated by Midjourney (AI Art Generator) included in Kashtanova's book “Zayra of the Dawn” since the mere entering of text prompts in Midjourney was not considered sufficient to grant copyright protection to the photographs.

It remains to be seen what position on AI and copyright, and in particular authorship, will be taken by the various courts in Europe and ultimately the Court of Justice of the European Union. In any case, it is clear that the aspect of human contribution (and its degree) will be an important factor in whether or not copyright protection to a work is granted. A case-by-case assessment will therefore always be necessary.

The originality requirement and to what extent it can be fulfilled when it comes to AI-generated works will undoubtedly need to be settled and will definitely generate a debate that will go far beyond the legal issue only.

For more questions on AI and copyright, you can always contact our IP team.