Abstract
This article queries whether and to what extent works produced with the aid of AI systems – AI-assisted output – are protected under EU copyright standards. We carry out a doctrinal legal analysis to scrutinise the concepts of “work”, “originality” and “creative freedom”, as well as the notion of authorship, as set forth in the EU copyright acquis and developed in the case-law of the Court of Justice. On this basis, we develop a four-step test to assess whether AI-assisted output qualifies as an original work of authorship under EU law, and how the existing rules on authorship may apply. Our conclusion is that current EU copyright rules are generally suitable and sufficiently flexible to deal with the challenges posed by AI-assisted output.
Highlights
As artificial intelligence (AI) is making inroads into the realm of culture, the alleged creative powers of intelligent machines are reaching almost mythical proportions
As our inquiry into EU copyright law reveals, four interrelated criteria are to be met for AI-assisted output to qualify as a protected ‘‘work’’: the output is (1) in relation to ‘‘production in the literary, scientific or artistic domain’’; (2) the product of human intellectual effort; and (3) the result of creative choices that are (4) ‘‘expressed’’ in the output
Since most AI artefacts belong to the ‘‘literary, scientific or artistic domain’’ anyway, and are the result of at least some ‘‘human intellectual effort’’, remote, in practice the focus of the copyright analysis is on steps 3 and 4
Summary
As artificial intelligence (AI) is making inroads into the realm of culture, the alleged creative powers of intelligent machines are reaching almost mythical proportions. This article is based on a study commissioned by the European Commission, the conclusions of which inform the policy position on AI-assisted creation adopted by the Commission in its 2020 IP Action Plan.15 This follows several policy initiatives at EU level on the intersection of AI and copyright, including on the protection of AI output.. 3, we turn to the core question whether and under what conditions AI-assisted output qualifies as a ‘‘work’’ protected under harmonised copyright standards To this end, we closely scrutinise the notions of ‘‘work’’, ‘‘originality’’ and ‘‘creative freedom’’, as developed in the case-law of the CJEU. Since this notion has so far remained largely unharmonised, nationally divergent solutions have been developed, such as the rules on authorship of computergenerated works in UK and Irish copyright law. In Sect. 5 we present our conclusions
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