Generative AI and Intellectual Property: Challenging Authorship
Key Takeaways
Generative AI tools present a significant challenge to intellectual property law: can works created using this technology be protected under intellectual property laws? This issue arises on two fronts: the content collected by AI software and the content generated by AI, with or without human intervention.
Technological advancements are reshaping artistic production and, by extension, intellectual property law, both in France and globally. Are works created through innovative technologies eligible for intellectual property protection? This question has previously been raised for photography, software, and databases. Each time, the courts, followed by legislation, adapted, even creating specific protection criteria for certain types of works, such as the sui generis right for databases.
Today, the same question arises in the context of artificial intelligence.
The rapid development and widespread use of generative AI tools in intellectual creation pose new challenges. On one hand, the literary and artistic world fears the blatant exploitation of existing works by AI systems to generate new, potentially infringing creations. On the other hand, users of generative AI tools need to understand their rights concerning content created by or with the assistance of AI systems.
The fundamental purpose of traditional IP law is to protect intellectual and artistic works thereby fostering creativity. It enables authors to exploit and distribute their works in exchange for remuneration (economic rights) while safeguarding the right to attribution and the integrity of their creations (moral rights).
According to article L.112-1 of the French code of intellectual property: “The provisions of this Code shall protect the rights of authors in all works of the mind, whatever their kind, form of expression, merit, or purpose.” However, we now face a tension between two opposing forces: preserving the principle of author protection in the face of AI’s rise, and acknowledging AI's contribution to the creative process.
Like photography and software, artificial intelligence was not originally contemplated by traditional IP law. Thus, establishing a legal framework to address these emerging challenges is crucial.
The application of intellectual property law to AI-generated creations must be examined from two complementary angles: an upstream focus on the issue of content collection by AI software, and a downstream focus on content generated using AI.
1. Content Collection by AI Software and the Protection of Authors’ Rights
Generative AI systems typically operate using machine learning algorithms. These systems mimic neural networks and improve over time by incorporating content to enrich their datasets (input) and learning from user interactions. However, the content automatically collected to train an AI system may be subject to IP law protection.
The Digital Single Market Directive of April 17, 2019, introduced exceptions to intellectual property protection, aiming to facilitate knowledge dissemination and support the development of artificial intelligence. Specifically, this directive permits text and data mining for academic research and other purposes, including AI training, provided that the data is publicly accessible. (1)
However, IP rights owners retain the right to opt out and prohibit the collection of their works.
Automated data collection by AI software can constitute IP infringement. The opt-out mechanism provided by the Digital Single Market Directive requires that refusal be machine-readable by data mining software, which poses significant implementation challenges. Some AI system operators have developed their own mechanisms for reporting infringing content or requesting the removal of copyrighted works from their systems.
In practice, it will be difficult for an author to pursue a generative AI developer for IP infringement. The author would need to prove that their work was collected and used by the AI system without consent. Given that generative AI systems are designed to process vast amounts of data to generate varied content in response to user prompts, tracing the sources of AI-generated content is often nearly impossible. For example, ChatGPT has been criticized for not citing sources in the texts it produces.
Several lawsuits have been filed by rights owners against AI companies, particularly in the United States. One notable case involves Getty Images, which sued Stability AI in February 2023 in a federal court in Delaware, followed by an injunction request in the British High Court in June 2023. Stability AI, the developer of Stable Diffusion, a tool that generates images from text prompts, allegedly used millions of Getty Images without obtaining a license to train its AI system. (2)
2. Are AI-Generated Contents Eligible for Intellectual Property Protection?
Intellectual works such as texts, music, paintings, photographs, and software are protected by IP law, provided they meet the criterion of originality. While the notion of originality is not explicitly defined by law, case law helps delineate its boundaries. A work is considered original if it reflects the “expression or imprint of its author’s personality” or embodies “the expression of the author’s intellectual creation.” (3) Originality is demonstrated through the author’s creative choices.
To determine whether intellectual property applies to AI-generated content (output), a distinction must be made between content generated without human intervention and content generated with human input.
2.1 Content Generated Without Human Intervention: Only Humans Can Be Authors
Under current law, only natural persons can be recognized as the authors of a work. (4) A robot, no matter how intelligent or autonomous, lacks legal personality and cannot be considered an author.
As such, content generated solely by an AI system, without any intellectual contribution from a human, does not reflect the "personality" of an author. These outputs, produced by the system's algorithms without human involvement in the results, are deemed non-original and therefore cannot be protected by intellectual property. (5)
A similar reasoning applies in the United States. For instance, in February 2023, the U.S. Copyright Office (USCO) ruled that the images in the comic book Zarya of the Dawn, created using the AI tool MidJourney, could not be protected under copyright law due to a lack of originality. (6)
The U.S. judiciary has upheld this reasoning. On August 18, 2023, a federal court ruled that U.S. copyright law does not grant protection to works generated by AI tools without human involvement. In this case, a painting titled A Recent Entrance to Paradise, created by an AI tool developed by Imagination Engines without any human input, was denied copyright protection. (7)
2.2 Content Generated with Human Intervention: Applying the Notion of Originality
Conversely, content generated by an AI system and subsequently reworked by a human may qualify for IP protection, provided it meets the originality requirement. In such cases, the legal analysis will be based on traditional intellectual property law.
Once there is evidence of a creative process—whether assisted by a computer or not—including intellectual contributions, stylistic choices freely made by the author, and the imprint of the author's personality, the work may be deemed original and thus eligible for IP protection.
A proposed law titled “Encadrer l’intelligence artificielle par le droit d’auteur” (Regulating Artificial Intelligence Through Intellectual Property Law) was submitted to the French National Assembly on September 12, 2023. This draft legislation suggests that AI data collection should require the consent of authors or rights owners. It also proposes that the rights to works generated by an AI system should belong to the authors or rights owners of the original works used to train the AI. To respect moral rights, the names of the authors of the original works would need to be included in the generated content.
However, it seems premature to legislate on this matter. The ethical, economic, and legal challenges posed by AI extend beyond national borders. Several international working groups are striving to develop a global approach. Although there is no established case law on this issue in Europe, legal reasoning is evolving. The European Union is currently drafting AI-specific regulations, including the AI Regulation and two proposed directives on AI liability. Enacting legislation prematurely could result in a law that is either unenforceable or will be quickly outdated.
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(1) Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April, 2019, on Intellectual property and related rights in the Digital Single Market (Digital Single Market Directive).
(2) Getty Images (US), Inc. v. Stability AI, Inc., US District Court for the District of Delaware, Feb. 2, 2023.
(3) CJEU, Case C-5/08, Infopaq International A/S v. Danske Dagblades Forening, July 16, 2009.
(4) Except for collective works, where a legal entity may hold IP rights (art. L.113-2 of the French Code of Intellectual Property).
(5) The approach in the United Kingdom differs. Section 9(3) of the Copyright, Designs and Patents Act states that “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
(6) United States Copyright Office, Zarya of the Dawn (Registration # VAu001480196), Feb. 21, 2023.
(7) US District Court for the District of Columbia, Stephen Thaler v. USCO, Civil Action No. 22-1564 (BAH).
Bénédicte DELEPORTE
Avocat
Deleporte Wentz Avocat
December 2023