Interactions Between Generative AI And Copyright

While to some extent harmonised at the EU level, copyright law remains to a large extent a matter of national law, and specifics might differ between countries

Artificial Intelligence (AI) is one of the most transformative technologies of the modern era. Its potential to reshape industries, redefine how we live, and challenge traditional societal norms makes it an exciting and, at the same time, a highly controversial field. The balance between the risks and advantages of AI remains a topic of global debate since the past few years.

In this article, we explore one such risk pertaining to AI, specifically Generative AI and how this technology interacts with the established concepts of copyright law. Before diving any deeper, let us first look at an accepted definition of AI.

What is AI?

The EU AI Act (one of the first legislations globally around the topic of AI) defines an AI System as “a system that is designed to operate with a certain level of autonomy and that, based on machine and/or human-provided data and inputs, infers how to achieve a given set of human-defined objectives using machine learning and/or logic- and knowledge based approaches, and produces system-generated outputs such as content (generative AI systems), predictions, recommendations or decisions , influencing the environments with which the AI system interacts”.

Therefore, distinguishing between mere automation and AI is key.

AI is further categorized into narrow intelligence (ANI), general intelligence (AGI) and super intelligence (ASI) – something we all are losing our sleep to. As a society we have already progressed towards AGI with Generative AI being an example.

Generative AI

A subset of the overall AI technologies, it is essentially a solution that generates content through prompts provided by its user. Generative AI can produce new types of “original” creations such as texts, images, and videos following prompts introduced manually by the user (the instructions or queries that the user gives to the AI model to obtain a desired result). Those creations are not spontaneous, behind the scenes there is a software that implements an algorithm, that had previously been trained with massive amounts of data. Through this training, the generative AI can generate predictions and an association between the input text (the prompts) from the users, and all the pre-existing knowledge learned. With this association, the AI provides an output/ “original” creation, according to the instructions given. The better the AI tool, the better the output fits with the requirements included in the instructions provided by the user.

Given the speed at which generative AI technologies are advancing, there is still some uncertainty or lack of clarity regarding how these creations are regulated, since law often lags behind technological development, and not many of us have addressed the issues related to AI-generated content.

The purpose of this article is to shine a light on the legal and ethical issues surrounding AI-generated content.

Gen AI and the Legislative Landscape (Specific to IP)

Primarily, two specific issues arise from the interaction between Gen AI and copyright:

a) Does the training data infringe third party IP?

b) Who owns the output produced by a Gen AI tool? Can there be a copyright at all?

The EU institutions have somewhat provided an answer to the first question. The EU DSM (Digital Single Market) Directive legalizes data mining in the EU for certain specific purposes inter alia for advancement of education, scientific research and work done by cultural organizations. Further, the data must be mined in a lawful manner i.e. accessed lawfully and no copyright owner has expressly prohibited the use of their work for the purposes of data mining.

The second question is probably a bit more complex. To be afforded copyright protection in Europe (and throughout the world), works must be original (that is to say, they must be the result of the author’s own intellectual work, and not a copy of a pre-existing work). Regarding ownership, works are normally first owned by their author with some limited exceptions (such as works created by employees in the normal course of their employment, which are typically owned by the employer). Note that while to some extent harmonised at the EU level, copyright law remains to a large extent a matter of national law, and specifics might differ between countries. The above is a general approximation that in a real case may differ from one country to another (Spanish copyright law may vary from the Italian one, and therefore, the ownership regime may be different).

This leaves the question of who owns copyright over a work created by an AI-generative tool with the inputs from a human.

Here we must mention the “Artificial Intelligence Act” adopted by the EU parliament which will become fully applicable by 2026 and introduces a comprehensive framework to be applied to the development and use of AI tools. While the Act stresses the importance of an ethical approach towards the building of AI tools, it does not tackle the specific issue of ownership over works created through generative AI tools.

IP risks associated with Gen AI

From all of the above, two main issues arise, which are:

a) Ownership of AI-generated content: Who is the owner of all the generated works? The software provider? The company that licenses the software? The employees that use the software?

b) Commercial exploitation of AI-generated content: Will my company be entitled to commercially exploit the AI-generated content and stop third parties from using it? Could my company implement or combine the AI-generated content into its own creations? Are there potential risks of third-party copyright infringement?

Gen AI software creates images by learning from large datasets, but if these datasets contain copyrighted works without proper authorization, the generated content could infringe on those rights. Ensuring that the data used to train AI is properly licensed or in the public domain is crucial to avoid legal issues and protect intellectual property

Regarding the ownership of the creations made with the use of generative AI tools, the answer will likely vary depending on aspects such as the laws of the relevant jurisdiction that govern the AI and the creation of the work, if any, and the extent of the role performed by both the human user and the AI platform in generating the output. Furthermore, the IP provisions under the Terms and conditions (T&C) of the license with the service provider, will also play a critical role.

As a result of those variations, copyright over works developed with generative AI may belong:

(i) To the creators of the algorithm who retain ownership over the works created by their algorithm.

(ii) To the user of the AI tool (which is the most common).

(iii) To no one (the works created through the generative AI tool are either considered to not be protected by copyright).

The current standard situation specified at the T&C of the average AI service provider, is that the user is considered the right holder of the works obtained. Normally, when ownership goes to the user, the commercial exploitation of this work is also permitted.

On the second issue of commercial exploitation on the other hand, one of the main concerns regarding the implementation of the AI tools (directly linked to the copyright ownership of the results), is the entitlement to exploit commercially the outputs obtained.

In principle, you are allowed to such exploitation of the results if the user is the owner of the outputs as per the applicable national law and the terms and conditions of the tool used.

However, there are several circumstances where the commercial exploitation may lead to copyright infringement:

(i) The results obtained reproduce (totally or partially) pre-existing copyrighted works that were used to feed and train the algorithm.

(ii) The T&C specifies that you may not exploit commercially the results obtained.

In essence, AI-generated content is governed by the provider’s terms and relevant laws. It is important to choose a provider that uses legally licensed data and ensures the rights for commercial use, while also preventing the reuse of generated results to retrain the algorithm.

Conclusion

While awaiting clear legal guidance, deployers and users of AI tools should take steps to minimize risks in their creative processes. Copyright infringement claims are on the rise as we see a burgeoning growth in the development of Gen AI products.

Cases like NY Times v. Open AI, Bollywood Music Labels v. Open AI, Shutterstock v. Open AI are going to shape the legal landscape around this issue. Questions around the fair-use doctrine will be tested once again as there are both proponents and challengers to this. While it remains to be seen which direction the law takes on this matter, companies must be prepared to protect themselves against any potential risks arising from the use of AI, specifically Gen AI.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.