The notion of ‘authorship’ under EU law—who can be an author and what makes one an author? An analysis of the legislative framework and case law

Abstract

Abstract The question of who an author can be, and what makes one an author, has once again come to the fore with the rise of Artificial Intelligence (AI). Such a concept, in particular the requirements of authorship, is not defined in the European Union (EU) legislation though. Additionally, no referral regarding the notion of authorship has yet reached the Court of Justice of the European Union (CJEU). This article analyses the legislation and case law of the CJEU to identify the elements needed for defining ‘authorship’. The analysis of international copyright law and the EU legislation shows that an author must generally be a human. Examining existing CJEU case law further provides indications of what makes someone an author. The creator must (i) exercise their creative freedom by monitoring and executing the preparation, realization and finalization of the work and (ii) express their creative act with a general authorial intent. Ultimately, the article attempts to rationalize these findings to advance its own definition. Accordingly, it is shown that an author is a human who, at least to a specific extent, is exercising a subjective judgment in the composition of a work and has control of its execution. This definition has the advantage of including objective and subjective criteria, allowing the assessment of cases involving multiple authors and technical aids. Regarding AI, it helps to clarify the level and type of human involvement required for an output to be considered a work of human authorship and therefore be potentially protected by copyright.