IP Insights: Copyrights and AI generated works of art

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Philipe, what are AI generated works in the first place and what is the question?

Well, Jan, to put it simply, AI generated works are creations that have been developed by a computer program instead of a human being. The most fundamental question in connection with AI and copyrights is whether such creations are eligible for copyright protection at all. The question arises because, according to our German and also the general European understanding, only humans can be creators in terms of copyright law. In the case of AI generated works, humans have admittedly created the AI, but not the specific creation. Unlike creations that have been developed with the mere help of computer technology, the special characteristic of AI generated works is that - even though humans can dictate the general line of art – the final result is ultimately beyond human control.

That’s correct. I can, for example, ask Open AI’s Dall-E to create an expressionistic painting for me, or ask ChatGPT to generate a winter poem. In both examples, I dictate general direction, but leave all further decisions to the AI. These decisions do not only refer to details of the outcome. However, only an intellectual creation of one’s own is considered as a work in the sense of German copyright law, and according to our current understanding, an intellectual creation by my own requires the creative act of a me as a human being. The same applies if one refers to the European concept of works based on European case law, according to which a work qualifies as an intellectual creation only if the personality of an author is expressed. Does that mean that AI-generated works are generally not entitled to copyright protection? After all, not only can I steer the AI in a general direction with general instructions, I can also tell it quite specifically what to do.

Correct. If I define the conditions of the creation so specifically that the result is not completely undetermined and appears to be mere coincidence, but rather the expression of my concrete human will, such creations should be protectable under copyright law. However, the requirements for such human specifications are currently quite strict. By the way, this is not only the case in Germany, but also in the United States. But while we here in Europe are still in the process of discussing how to deal with AI-generated works, the US Copyright Office has already rendered guidelines in March 2023, explaining in more detail the distinction between AI-generated works on the one side and human creations on the other. According to said guidelines, to the extent that traditional elements of authorship are ultimately determined and executed by the AI and not a human, respective creation is assignable to the AI and not to a human. In this case, copyright protection is ruled out. So, in the end, it is a question of whether I gave rather general instructions to the AI, whereas the specific result remains open, so that numerous complex decisions regarding the literary, the artistic, or the musical expression or the elements of selection and arrangement are made by the AI during the creation. The mere request to the AI to create something is thus treated like the instruction to a commissioned artist, where the artist is given the framework, but the implementation is left to the commissioned artist him- or herself. In contrast, if AI-generated material is selected or arranged by a human in a sufficiently creative manner, copyright protection is available under the US guideline you mentioned. Another example of cases where copyright protection should be available is where AI-generated material is only used as a starting point for further creation.

This is transferable to German copyright law. It is already recognized that the selection and creative composition of content may be sufficient to substantiate your copyright protection. Even the case in which AI-generated works are used as a starting point for new creations should be covered by German law already. So, in conclusion, no need for action in the field of AI and copyrights?

There rather isn’t. A special ancillary copyright, which would protect AI-generated material independently of human creation, is often mentioned, but does not seem to be absolutely necessary. In any case, it has to be seen how the areas of application of AI will develop.

This is exactly what we will do to keep you informed of must knows in the field of AI and copyright. Thank you for your attention!