Europe's debate rumbles on over the copyright protection of AI-created works

The UK, Italy and France differ in their approach on the use of copyright law for AI-generated content: where are they now and where could they be heading in 2022?

It has been proposed for a while now that, given unlimited time, a monkey at a typewriter will eventually reproduce the complete works of Shakespeare. The Million Monkeys Project used a computer program to create virtual monkeys to do just that – after running through 7.5 trillion character groups of random text, the artificial intelligence (AI) monkeys successfully recreated Shakespeare's oeuvre.

As AI technology becomes increasingly sophisticated, there is a growing appreciation that AI tools are not only capable of replicating existing creative works – be they great works of literature, or computer programmes – but are creating them more or less independently of humans. There is now debate across Europe about whether or not such computer-generated works should be protected by copyright.

What is the current position for the creation of original computer-generated works in the UK, Italy and France? And what might the future hold for it?

UK: explicit protection

The UK is one of the few countries in the world that already explicitly protects original literary, dramatic, musical or artistic works that are computer-generated, in circumstances where there is no human author of the work (the others include Ireland, New Zealand and India). The author of the copyright in the AI-created content is deemed to be the (human) person who made the arrangements necessary for the creation of the work – usually the programmer of the software.

The UK's approach has traditionally been seen as commercially sensible, because it protects the skill and labour put into the creation and use of AI tools which themselves make creative content. However, in light of the recognition of the transformative power of AI for innovation and the economy and the UK government's intent, stated in its National AI Strategy to "secure the UK's position amongst the global AI superpowers", there is a growing concern that the existence of this copyright protection (which lasts for 50 years) may act as a barrier to AI innovation by deterring use of AI-generated copyright works by third parties. The UK Intellectual Property Office (IPO) has just completed a second tranche of public consultation on AI and IP, seeking views on whether to remove the protection for computer-generated works altogether, or reduce the length of protection to the shortest term possible (for example, five years), which would still incentivise the creation of AI-generated works.

Overall, in the UK, the protection of computer-generated works without a human author is in a state of potential flux. The UK IPO consultation closed in early January 2022, with a response hoped for in spring or summer, so watch this space.

Resources

> Osborne Clarke - The future regulation of AI: UKIPO launches further consultation on AI and copyright

> Osborne Clarke - Artificial intelligence raises new questions about purpose and scope of copyright

> Osborne Clarke - Court of Appeal's DABUS decision highlights the debate on patents for AI-derived inventions

Italy: authorial creation

Italian copyright law grants protection to "intellectual works of a creative nature which belong to literature, music, figurative arts, theatre and cinematography, whatever the manner or form of expression".

The originality necessary for the application of copyright must arise from the intellectual creativity of the author. The owner of the copyright is, therefore, understood to be a natural person, being the creator of the work. So what is the fate of computer-generated works without a human author, on the assumption that AI systems do not have legal personality?

At present, the Italian approach requires that creativity and originality of a work of art must reflect the personality of its author, showing their free and creative choices, as requirements for it to be eligible for copyright protection.

In the search for the originality of the creative act, attention must be paid to the moment before the realisation, meaning the time of programming the machine. The choices made by the programmer and the inputs underlying the machine's programming therefore become the main and essential point of that creativity. The legal protection on such computer-generated works could be configured as a sui generis right, similar to the existing rights for non-original databases (meaning those whose content, together with its presentation and verification, has been obtained through substantial investment).

The question is still open in Italy and the sui generis right, which is a specific property right, might be a possible solution to protect these computer-generated works as assets resulting from huge financial and business investments by those who funded them rather than as purely creative works.

France: creator's personality

Under French law, copyright protection presupposes that the creation for which protection is sought is deemed to be "original", namely that it bears the imprint of the author's personality. With this subjective definition deeply linked to the personality of the creator, one could think that computer-generated works should not be protected by copyright. However, national law (in line with EU law) has taken an objective approach to this concept when it comes to works resulting from digital technology (for instance, a computer program) so that one cannot exclude the possibility that AI-generated works will be protected by copyright. In such a case, the originality assessment should be done in concreto, taking into account the AI method used and the latitude given to the person who makes the settings as well as those left to the user.

The other question that arises with AI-generated work is that of copyright ownership. As in Italy, the person of the author remains central in French copyright, as the author can only be a human person. As long as AI is a mere tool handled by the author, copyright rules should apply in a classical way. However, it will be different when the creation is generated by AI without any human presence. There are several opposing theories. Some consider that identifying the AI creator (usually the algorithm programmer) as the author would be the solution that is most in-line with French copyright law. Another option could be to lay down an ad hoc solution, by creating a related right or a sui generis right similar to those that exist for press publishers or database producers, namely a right based on the financial and human investments devoted to the AI-generated creation at stake.

This is also not clear-cut. But as the French Higher Council of Literary and Artistic Property stressed in a report on the legal and economic issues of the use of AI in cultural and creative areas, the last word will be that of the legislature, who will have to decide whether it is appropriate to protect AI-generated-works by a private right.

Whichever countries your business is active in, the practical message is the same: businesses using AI systems to generate potential copyright works – or using, licensing or exploiting those works – should consider the copyright position at an early stage in their projects, and ensure that their contracts deal appropriately with ownership and rights to use.