IP Insights: Copyrights and AI generated works of art

08/30/23 • 6 min

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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!

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

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!

Previous Episode

IP Quick Tip: Alternative Dispute Resolution

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Alternative Dispute Resolution or “ADR” – hence, arbitration or mediation procedures instead of traditional civil court proceedings – has gained momentum in the IP world.

For domain names, for example, there is a well-established practice of resolving disputes in arbitration. But nowadays, ADR has become a hot topic in the patent field, as well. The UPC will have a dedicated Patent Mediation and Arbitration Centre. And arbitration is also a substantial – but maybe one of the most controversial – part of the recently leaked Draft Regulation of the European Commission on Standard Essential Patents. The draft provides for a mandatory but non-binding determination of FRAND terms by the EUIPO in a procedure which seems similar to arbitration.

We may therefore expect that ADR may become more and more important, because it offers quite some advantages over traditional court proceedings: confidentiality, speed, expertise, flexibility, cost, and international enforceability.

But let me address a few key issues when getting involved in mediation or arbitration:

Prepare thoroughly: ADR proceedings need as much preparation as court proceedings. All facts and arguments supporting your position need to be well prepared.
Be clear: what is the actual issue to be resolved? Think about narrowing the scope of discussions. An option is to involve an expert both sides agree on who may then give an opinion on specific questions – for example infringement.
Create a proper atmosphere: arbitration and mediation are not a battle. You want to reach a solution. So don’t be combative or confrontational, listen to the other party's concerns or arguments and be honest.
Think out of the box: a dispute is often about more than one patent. Be flexible and open to creative solutions and compromises that may not have been considered before, so you can reach a win-win solution for both.

Next Episode

IP Quick Tip. How to choose the right countries for patent protection

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Patent rights are territorial, meaning that they only apply in the countries where you've obtained legal protection. This means, selecting the right countries to protect your invention can be crucial in ensuring that your intellectual property is protected where it matters most.

While there is no one-size-fits-all answer, there are several factors you can use as a checklist when considering where to file or validate your patent. First, what is your overall business strategy? If your business is already operating in a country, it may be necessary to seek patent protection to protect your market position.

This also includes countries where you have manufacturing units, suppliers, or existing customers; in the case of digital inventions, it could be the location of your server, for example. If you plan to expand your business into a particular country, it may make sense to seek patent protection there.

Second, what is the potential market for your invention? Is it a niche or a mass-market product? This can help you prioritize countries where your invention is likely in high demand.

Additionally, you may also consider the presence of competitors in those countries, as patent protection can help you prevent competitors from using your invention. Third, what are the intellectual property laws and enforcement mechanisms? Check if your invention is patentable, as some jurisdictions may have stricter requirements for granting a patent for certain technologies.

Can you make use of certain enforcement mechanisms? For instance, if your product is at risk from infringers importing them into your market, deciding to protect it in countries that act as an entry ports can allow you to use the customs enforcement mechanism to stop entry into a wider market.

Finally, what are the cost and complexity of obtaining and enforcing patents in different countries? Depending on your invention, you may decide based on the cost of obtaining a patent relative to the market size.

In summary, every business's needs are unique, but by considering these general factors, you can develop a strategy tailored to your individual circumstances, protecting the value of your intellectual property.