AI & human intervention: Partners in ©rime

Welcome to the second blogpost in our series “AI & IP,” in which we guide you through the impact of AI on intellectual property and technology law in a practical, hands-on manner. Given the omnipresence of AI news nowadays, we assume that an extensive introduction to AI is not necessary. Simply speaking and to freshen up your mind, AI is a technology that imitates human cognitive intelligence such as machine learning and problem-solving, posing multiple different legal challenges.

Introduction

The recent (r)evolutions in AI technologies, particularly the rapid development of ‘generative AI’ technologies providing impressive results, have sparked intensive debates among IP lawyers. Some of the most burning questions relate to the impact of AI technologies on copyright law as we know it, leading some authors to even declare the death of copyright law.

This should not come as a surprise: with generative AI, technology is entering a domain that was until now reserved for human creations only. Now that generative AI tools are capable of producing works (including texts, paintings, music etc.) which cannot be distinguished from original works created by humans, several copyright-related questions arise. Are AI-generated works eligible for copyright protection? If so, who is the author? Can AI-generated works infringe on previously existing works? If so, who is liable for such infringement? And how will human authors be able to prove that their works are genuine human-created original expressions, and not AI-generated works? In this blogpost, we will shed some light on the first and most basic question: are AI-generated works eligible for copyright protection?

Back to basics: the reflection of the author’s personality

Under EU copyright law, as under most laws worldwide, copyright protection is reserved for works created by natural persons. According to established case law of the Court of Justice of the European Union (CJEU), a work could enjoy copyright protection only if (1) it is expressed in a specific, concrete form and (2) it is original, meaning that it reflects the author’s own intellectual creation. In the Painer case, the CJEU clarified that this intellectual creation of the author must reflect their personality and express their creative and free choices. This has the inevitable consequence that a necessary – yet not sufficient – requirement for authorship is human intervention. Once there is human intervention, it can be assessed whether the work also reflects the author’s own intellectual creation and personality.

Types of AI tools – distinction between AI-assisted output and AI-generated output

Before we dive into these questions, it is necessary to point out that the answer will not be the same for all types of output created by or with the help of AI tools. Usually, a general distinction is made between ‘AI-assisted output’ and ‘AI-generated output’. ‘AI-assisted output’ is made with the help of an AI tool, but with substantial human intervention or direction; the human author knows which result they want to achieve and uses the AI tool as an aid to create an output in line such result. ‘AI-generated output’, on the other hand, refers to output that was autonomously created by the AI tool, without human intervention; the author can feed data into the AI tool and/or give instructions (‘prompts’) to the AI tool, but the author does not know in advance the specific form of the output that will be generated by the tool.

‘AI-assisted output’ does not pose too many challenges in the field of copyright law and can enjoy copyright protection if the concrete form of the output was determined by a human author. AI-assisted output is often compared to creations made with other technical tools which allow a user to aim at a specific result by manipulating technical settings; the user will often decide the general form the outcome must have and use the AI tool to fill in certain features. The original elements in the output which are created by the human author will often qualify for copyright protection; the elements added by the AI tool will not qualify for copyright protection. (Such partial protection may in practice lead to difficulties at the level of proof and enforcement, but that issue will be discussed in a separate blogpost.)

Copyright protection for ‘AI-generated output’ is much more challenging and a hot topic among IP specialists.

The role of human intervention in AI-generated output

Where an output is generated by the AI tool on the basis of (i) simple prompts (e.g. ‘write a symphony in the style of Beethoven'); (ii) complex prompts that may yield an infinite number of possible outcomes; or (iii) parameters selected by the user whereby the concrete result is not determined in advance (‘create a folk song in the style of band X and X of 2:30’ featuring bag pipes and a male singer’), then most experts will agree that such output is not copyright-protected. After all, under EU law, as in most jurisdictions worldwide, copyright protection can be granted only to works created by natural persons and not to output autonomously created by software. Such output would also not pass the originality test, as the concrete form of the output would not be the concrete expression of the free and creative choices made by a human author, but rather the result of associations the AI tool automatically made between all the input data it analysed. The prompts given by the user, or the parameters selected by the user, are no more than an idea or instruction formulated by the user and the human input will be too limited to have a decisive impact on the concrete form of the output.

The discussion becomes more interesting when prompts entered by a user are so specific, extensive or sophisticated that the form of the output is to a substantial extent determined in advance.

Some authors argue that the output created by a generative AI tool on the basis of prompt engineering can never qualify for copyright protection, as there is no direct creative link between the prompts entered by the user and the concrete form of the generated output. These authors point out that the user does not even know how the AI tool comes to a specific result and has no control over the manner in which their prompts are translated into output.

This is also the position of the US Patent and Trademark Office USPTO, which maintains that human users have no creative control over the manner in which AI tools interpret and execute prompts. They also point out that the AI tool does not create, but merely produces on the basis of associations it has learned between the elements present in its data set.

In a recent judgment of the Beijing Internet Court, on the other hand, an AI-generated image was granted copyright protection. Briefly, the court ruled that “artificial intelligence-generated images, as long as they can reflect a person's original intellectual input, should be recognized as works and protected by copyright law". In particular, the author entered various specific prompts in the AI tool, such as: “ultra photorealistic: 1.3), extremely high quality high detail RAW color photo, in locations, japan idol, highly detailed symmetrical attractive face, angular symmetrical face, perfectskin, skin pores, dreamy black eyes, reddish-brown plaits hairs, uniform, long legs, thighhighs, soft focus, (film grain, vivid colors, film emulation, kodak gold portra 100, 35mm, canon50 f1 2), Lens Flare, Golden Hour, HD, Cinematic, Beautiful Dynamic Lighting”. The court decided that the “pictures involved in the case are directly generated based on the plaintiff's intellectual inputs and embody the plaintiff's personalized expression, so the plaintiff is the author of the pictures involved in the case, and enjoys the copyright of the pictures involved in the case”.

Perhaps it is not necessary to answer this question decisively, and we can leave open a possibility for self-claimed authors to demonstrate that the prompts they have entered were so specific, extensive or sophisticated that the result was to a large extent predetermined by them, and that their free and creative choices are expressed in the output. In practice, one relevant – yet not decisive – test may be the question of how many different outputs the tool could have created with the prompts entered by the user – if the answer is that the tool could have created a sheer infinite number of possible outputs, then it would be more difficult for the user to claim that the output is the concrete expression of their free and creative choices.

It should also not be a priori excluded that the AI-generated output may contain certain elements which are indeed the concrete expression of the free and creative choices made by the author and which can thus qualify for copyright protection, even if this is not the case for the output as a whole. Such an approach could in practice lead to proof and enforcement difficulties, but those are separate issues (which we will discuss in a separate blogpost).

Further, it is also possible that an AI-generated output is not eligible for copyright protection as such, but the user then uses that output as a starting point to create a new work based on the AI-generated output. To the extent such new work would contain original elements created by the author, such new work may itself qualify for copyright protection (or, if not the new work as a whole, then at least the original elements added by the author).

Way forward

While bringing many interesting challenges, AI does certainly not mean the end of copyright. The EU copyright principles, established by EU law as interpreted by the CJEU, can be applied to AI-created works. In practice, this will often lead to a (partial) protection being granted to AI-assisted works, while copyright protection will likely most often be refused for AI-generated works, especially when the claimed author cannot prove that the output is the specific and concrete expression of their free and creative choices. That being said, we believe that AI-generated works should not a priori and as a matter of principle be excluded from copyright protection. Authors working with AI tools could take certain precautionary measures to protect their works and enforce their rights, on which we will tell you more in the following editions of this series.

Stay tuned! In the meantime, please reach out to your usual DLA Piper contact for further advice.