A question of originality
The fundamental benchmark for protection under harmonised EU copyright law is that the work must be original. The law is however rather vague when it comes to establishing the threshold of originality, defining it as the ‘author’s own intellectual creation’ and specifying that it must reflect the ‘author’s personality’. Court of Justice case law specifies that a work is protected only if:
- the author was able to ‘express his/her creative abilities in the production of the work by making free and creative choices’,
- the work expresses a ‘personal touch’ of the author; and
- the creation process leaves room for ‘creative freedom for the purpose of copyright’.
In most European countries, copyright is regarded as the result of intellectual, human creation and may only be granted to a work created by AI indirectly, by linking it to a human author depending on his/her impact on the outcome and involvement in the act of creation. If the process of creation does not originate from a human author or the output does not reach the threshold of originality – generally low for most types of software, functional works, and databases – it is not eligible for copyright protection. This sets the parameters for whether and how different types of AI generated works can be protected under current copyright rules.
Works created by humans using AI as a tool. If the author uses AI as a tool to achieve a determined outcome, the human author retains complete creative freedom over the work and therefore, it can be protected. The work must also meet the personal touch test. The author must be able to fully control the AI tool and express him/herself with its help. In this case, the contributing human person may be considered the author and owner of the copyright protected work. An example may be Amper application where AI and the author are collaborators – the online app allows the user to select instruments, rhythms, styles and tempos to ‘collaboratively’ generate new music.
Works created independently by AI, but controlled by humans. In this scenario, the human authors have a passive role, but they can make creative choices in the creation process. An example may be the AI utilized in the music industry, where AI can compose different pieces of music. Here, AI generates the work independently without human involvement. It most likely would not meet the personal touch test. The right to pick from a series of AI generated works does not make the chosen work original. This type of AI created works may not fall under copyright protection. However, European case law provides for the possibility that the choice, sequence and combination of elements created by AI expresses the author’s creativity in an original manner and achieves a result that is an intellectual creation. In that case, the copyright owner of the work is the person selecting the AI created elements and putting together the pieces of puzzle.
Works entirely generated and selected by AI. Human intervention here consists only of pressing a button or issuing the order to run the programme. AI creates the work independently and selects from a line of similarly created works the one, which best fits the requirements. As the programmer does not have any opportunity to influence the creation process, these type of AI-generated works cannot enjoy copyright protection. The situation is the same in case of works created by AI by use of brute force computing, where AI systematically checks all possible combinations until it finds the correct one.
This process does not need human intervention and usually does not allow the author the freedom to make creative decisions or choices. Any works created in this manner definitely do not meet the personal touch test and cannot therefore be protected by copyright.
Our AI insights series has covered topics including the ownership of computer generate works which you can read more about here.