Can a Machine Learning Generated Work Be Protected As Original Under EU Law?

Abstract

This is a working chapter of the author's PhD thesis work. Recent years have witnessed a boom in algorithms involving cognition-imitating processes. Different to traditional digital editing programs, these machines fed with large datasets develop complex decision-making, bringing about unforeseen creative outcomes. Eventually, it becomes particularly difficult to identify the person responsible for the final creative choices in a work and thus vest that individual with the copyright authorship claim. The overall expected policy contribution of this PhD research is to avoid a situation of discontinuity in copyright law by adequately safeguarding the author’s role in the creative industries. The first two chapters of this PhD turn respectively to the notion of the author and the concept of ownership in copyright law. The chapter I intend to submit instead focuses on the object of protection under copyright law, namely the work. It studies the standard of originality as developed by the CJEU case law and aims to analyse whether such an approach is indeed in line with the objectives of copyright law. More in general, this research critically analyses the problem of allocating authorship in the final creative output of such programs from an EU law perspective. Since most traditions inevitably associate the notion of authorship with a human being, then naturally, the copyright claim in the final creative work eventually also vests with a human being. While this may be entirely in line with the anthropocentric view dominant in EU copyright law, it is certainly challenged by recent developments in machine learning. Creative works generated by machine learning algorithms are often indistinguishable from true authorial works. Moreover, these have indeed been marketed for significant prices. The authorship analysis in EU copyright law puts under the limelight the romantic figure of the author, whereby the work, the object of copyright protection itself, is protected only by virtue of being the “author’s own intellectual creation” (emphasis added). Such an analysis prejudices the objective assessment of the work since even if a work stands for an original expression, if it lacks the stamp of personal touch of the author it would not be considered protected copyright work and would thus fall in the public domain.