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You or AI – who is the author of the creation?

AI tools are becoming everyday sources of content – e-mails, texts, images. Thus, for copyright lawyers, the discussion about the copyright Protection of the AI-generated outputs is never too much behind.

Author – human-centric concept

The start and finish of the debate always seems to be that copyright can only subsist in human intellectual creation as the „work“, and Continental European laws often state as Estonian Copyright Law Act states: „The author of a work is the natural person or persons who created the work (similarly e.g. § 2 section 2 of the German Copyright Act (UrhG) and the U.S. 17 U.S.C. § 102). To note, there is one well-known exception, namely the laws of United Kingdom provide that for computer-generated protected works the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken (Section 9 (3) of the UK Copyright, Designs, and Patents Act 1988). To jump ahead, unfortunately long-awaited AI Act does not bring any clarity in this realm.

There are numerous examples where the copyright has been clearly denied. To bring an example – “Théâtre D’Opéra Spatial” by Jason M. Allen in which case the Copyright Office in its September 5, 2023 decision, dealt with human-driven use of generative AI: Jason M. Allen created an image using Midjourney and then made in total of 624 revisions and optimizations to the prompts (setting the scenery, selecting sections and determining the shading). Only after that, the image was finalized.

Photo: Jason M.Allen’s two-dimensional artwork titled “Théâtre D’opéra Spatial” (“Work”). Source.

Despite these revisions, the Copyright Office “[…] concludes that the Work contains an amount of AI-generated material that is more than de minimis and thus must be disclaimed. […] the Midjourney Image, which remains in substantial form in the final Work, is not the product of human authorship.“.

Way forward?

However, the Copyright Office has published a new guidance about AI and copyright law, saying it is open to granting ownership to AI-generated work on a “case-by-case” basis. In Europe, in accordance with the Berne Convention, copyright in a work is created with the creation of the work and there is not agency to make any decision regards it whatsoever. The Copyright is either created or not created together with the creation of the work. And if no human has created the work, but the AI instead, the copyright never emerged.

As is evident, human authorship is a bedrock requirement of copyright. However, it is clearly time for the debate on copyright to take off and discuss whether UK-s exception is something to move toward, as it is clear that during years to come, human-AI-generated content will be material part of content created in our personal as well as professional lives, undoubtedly, artists, copywriters, designers and other creators will have AI in their toolbox.

AI tools often do state that the user is the author of the output of AI, Open AI Terms of Use stat that “As between you and OpenAI, and to the extent permitted by applicable law, you (a) retain your ownership rights in Input and (b) own the Output. We hereby assign to you all our right, title, and interest, if any, in and to Output.” However, pursuant to current state of the law, AI output is only copyrightable if and to the extent that the output results from a direct, human-controlled contribution. Any additions and amendments made by AI tool would not be protected, but the “foundation” human contribution would remain protected. Similarly, output of Ai tool would not be protected, but if further amended, changed by human (in extent that would warrant copyright protection), these changes would be protected by copyright.

Thus, discussion about the protection of AI will be relevant in years to come – just as 200 years ago the discussion for photographers who were fighting to have the copyright o extend to photographs.