The issue of copyright in relation to AI-generated content has recently gained urgency. However, the answer to this question turns out to be more complex than one might initially think. The roots of this complexity go back to the traditional assumptions of copyright that were first established in 1710, 1912, and thereafter. These assumptions, however, do not seamlessly align with the nature of AI, making the debate even more intricate. Nevertheless, according to the law, this discrepancy should not be a barrier to further developments in this field.

Protection of Creativity

Copyright includes the exclusive right of the creator of a literary, scientific, or artistic work, as well as their successors, to publish and reproduce the work, within the limits of legal restrictions as established in Article 1 of the Copyright Act. This means that creators acquire rights over their works but at the same time must respect certain limitations.

This may seem like a clear concept, but what exactly constitutes a ‘work’? The Court of Justice has ruled on this and stated that it must involve an ‘own intellectual creation’, more than just a mere compilation of elements. There must be a creative, personal contribution to the work. This principle applies even to seemingly simple works like stock photos or vacation photos. However, exceptions exist, as seen in the case of a simple dashboard photo in 2017 that did not receive copyright protection:

In this case, the photo was a realistic, clear, and accurate close-up of a temperature gauge in a car. The fact that there could be variations in lighting, distance, and angle, as argued by the parties involved, Masterfile and Mediapro, was not sufficient according to the judge to qualify as an original work.

Creativity in the AI Era

What about using AI tools in writing or design processes? While tools like checklists for successful blog posts, contract templates, and spell and grammar checkers have existed for some time, modern AI technologies based on generative models take it a step further. Take, for example, Adobe Generative Fill, launched in the summer, which expands and completes images as desired. We have seen similar tools before, such as [mention other tools], which I also work with.

But where does copyright lie when using such tools? The core question remains: where does the intellectual effort, the creativity, come from? One possible approach is that the person initiating the process, often referred to as the ‘prompt engineer’, provides the creative input, and the results stem from that initial prompt. This reasoning was applied earlier this year by artist Kris Kashtanova, who attempted to register his work with the US Copyright Office. While registration is not necessary to obtain copyright, it offers benefits such as legal actions and claiming damages. The Copyright Office examines formal registrations without actually assessing the creative nature of the work.

In the case of Kashtanova’s graphic novel ‘Zarya of the Dawn’, the Copyright Office investigated the case, especially because Kashtanova publicly stated that the work was partially created using Midjourney. This led the Copyright Office to emphasize that only humans can be considered authors under the law. According to them, the prompt in Midjourney is not the beginning of a linear process. While the prompt plays a role, Midjourney’s system generates multiple images with some influence from the prompt. This implies that there is creative input from the system itself, meaning Kashtanova couldn’t be the sole author. However, the question remains as to who can be considered a co-author: the company Midjourney Inc. or even the tool itself?

Protection of the Maker: Regarding Copyright

Another condition for obtaining copyright is that one must be the “maker” of the work. In most cases, this is the person who actually created the work. Nevertheless, there are exceptions, such as when one works on commission for an employer; in that case, the employer is considered the “maker” of the work created within the scope of the assignment.

For freelancers and other creative professionals working on commission, disputes often arise over who owns the rights. While clients often have specific requirements and view the work as a straightforward execution of their instructions, the courts have ruled in many cases that even within these parameters, there is an element of creativity. Only when the creator is fully bound by the exact instructions of the client can the copyright transfer to the client.

Joint copyright arises when two or more people collaborate on a work and the individual parts cannot be clearly separated. In the case of software development, for example, a joint copyright can arise since the result forms a unified whole. However, if some of the creativity comes from a non-human source, as in Kashtanova’s case, a gray area emerges.

The Famous Monkey Selfie and the Role of the Photographer

A well-known example is the ‘Monkey Selfie’ case of photographer David Slater. During a photo session with macaques in Indonesia, a monkey jumped in front of the camera and accidentally took a photo. This photo was deemed creative under copyright, but the question was about the rights. Slater claimed ownership, while Wikimedia, hosting the photo, argued there was no copyright on the photo. In 2017, the Court of Appeal ruled that monkeys couldn’t have copyright.

What this ruling lacked was the possible creative input from Slater in setting up the camera. Taking a good photo with a professional camera requires more than just aiming and clicking. Setting various parameters constitutes, in my opinion, a form of creative contribution. Even pressing the button only minimally contributes to the creative aspects of the photo, as the captured composition had already been determined before that action. From this perspective, Slater was indeed the creator of the photo, while the monkey was merely a furry ‘self-timer’.

The Key is the Creative Process

This approach proves relevant when involving AI systems. Here, too, before ‘pressing the button’, inputting the prompt precedes a creative process initiated by the human user. The statistical model that the AI uses for generating output has been trained before. According to the reasoning of the US Copyright Office, there is thus a significant degree of creativity in how that model arrives at its output. Consequently, the model itself should essentially be considered a co-author. However, since by definition this must be a human, a dilemma arises.

This issue also plays into other legal aspects. In the realm of patents, Stephen Taler’s AI named DABUS is notable. DABUS churns out invention after invention, but patent offices don’t recognize it as an inventor, as the definition stipulates an inventor must be a human. A similar situation occurred with DABUS’s application in November 2021: an algorithm can’t be an inventor according to the dictionary, even though DABUS makes inventions. As a side note, the fictional Donald Duck was listed as an inventor. And then there are the copyright holders of the data that served as the basis for the statistical model.

Protection Against Copyright Infringement: Does robots.txt and Data Mining Offer Any Relief?

Recently, OpenAI announced adding robots.txt support for AI crawlers. This marks a step in the ongoing debate about the lawful use of protected works for training AI models. This situation bears some resemblance to that of search engines. In this context, robots.txt reminds us that websites indicate parts that are off-limits to crawlers. This compromise now seems to be employed to address the AI crawler issue. A similar approach is followed in European copyright regarding data mining (Article [article number]).

According to this article, reproducing works for the purpose of text and data mining is not considered copyright infringement, provided the miner had lawful access to the work and no explicit restrictions were imposed by the creator or rights holders. A robots.txt entry clearly indicates where the miner mustn’t go, hence it’s considered a valid opt-out.

Lawsuits Are Present, and More Are Coming

Numerous lawsuits have been filed over whether training AI constitutes copyright infringement. While I believe a statistical model can’t be seen as a copy or reproduction of a work, counterarguments exist. The technology behind Stable Diffusion, for instance, uses small pieces of source material to generate composite images. This differs from the approach of language models like GPT, where the output aligns more with the original text. GitHub’s Copilot even generates literal source texts, possibly due to the technical nature of software development.

If parts of the source work are incorporated into the AI output, infringement can quickly be claimed. This applies to works made using AI as well as traditional creations. The core question remains whether the creative elements of the work have been adopted. For instance, a ransom note made by cutting letters from the newspaper doesn’t infringe on the copyrights of the newspaper articles. However, assembling opening paragraphs from those articles and presenting them in a compilation is considered copyright relevant.

AI in the Style of: A Legal Gray Area

The complexity increases when AI is used to generate content ‘in the style of’ a specific author. Styles themselves are not copyright protected, meaning it’s possible to write in the style of a certain author. However, when AI is employed to mimic a specific author, a legal gray area arises. This is because imitating an author’s style was less common before. However, this situation is changing, leading to discussions in the artistic community about the boundaries of copyright and creativity.

The copyright issue concerning AI is complex and evolving as technology progresses. Various lawsuits and discussions in creative and legal communities are expected to contribute to the formation of new standards and insights in this rapidly changing arena.

Sources

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