The technological revolution associated with the development of artificial intelligence has made it more and more difficult to distinguish between a human created work and a work generated by AI.

Hence, we invite you to read the most recent addition to our series of articles in which we briefly analyse copyright issues in the context of AI-generated works.

Recently, artificial intelligence has managed to take first place in a painting competition and to win an award in a prestigious photography competition. In addition, artificial intelligence is getting better and better in the music sector, literature and, as a matter of fact, in the majority of fields that require a creative approach to any task or issue.

 

1.  Works created with the use of AI tools

Painting

In the Colorado State Fair Fine Arts Competition held in August and September 2022, artists using digital technology were eligible to enter the contest in the painting category. Jason M. Allen won the competition with the painting entitled „Théâtre D’opéra Spatial”.

The author did not create his work using a paintbrush or  standard graphic computer software. The painting was created with the use of  Midjourney, an image creation tool that makes use of artificial intelligence. Jason M. Allen created his work by typing in a text that Midjourney then used to generate the image in fragments. This was  the first time when an AI generated artwork received such an award.

Photography

Artificial Intelligence was also successful on 13 April 2023 at the Sony World Photography Awards. The prize for the best photography in the creativity category was awarded to Boris Eldagsen, a German artist who created his photograph with the help of AI. In the end, the artist did not accept the award, pointing out that his aim was to start a debate on works created by artificial intelligence. Furthermore, he stressed that an AI work is not a photograph.

Music

Musical works generated by artificial intelligence are also becoming more and more popular. Drowned in the Sun,Nirvana’s new song , among others, was created in this way. The song was created using Google’s Magenta system which deals with the creation of music through machine learning processes. After analysing 30 Nirvana songs, the AI tool generated both music and lyrics.

Another example is an experiment in which artificial intelligence was 'taught’ the works of Elvis Presley. An application called Jukebox generated a new composition that Presley never performed. Significantly,  the piece was not based directly on any fragments or samples, and the song was composed from scratch.

Film

Even the companies as large as Marvel Studios use AI-based applications that are capable of generating films or images . As revealed by the director of the latest series on the Disney+ platform, the opening credits of the 'Secret Invasion’ series were generated with the use of artificial intelligence.

ChatGPT

In addition, more and more works are being created using GPT Chat (discussed in our previous article).  Notably,  there are currently around 200 books available in the Amazon shop that are authored by an OpenAI application. For example, a book entitled „The Wise Little Squirrel: A Tale of Saving and Investing” contains both the narrative and illustrations that have been generated by artificial intelligence. Chat GPT is also capable of writing poems, stories and even simple application source code.

2. Are works generated by AI a work within the meaning of copyright law?

First, it is important to distinguish between works created solely with the help of a computer – already defined in the literature and case law – and works that are generated by artificial intelligence. The view that only works created by a human are entitled to copyright protection has been established in many jurisdictions: in Polish law as well as German, Spanish, American or French law.  The above has also been shared by the CJEU, which has repeatedly emphasised that the originality of a work must be a reflection of the author’s own intellectual creation, who must moreover externalise his creative abilities by putting his personal stamp on the work (C-145/10 and C-429/08). A consequence of the above thesis is the requirement that the work originates exclusively from a human being. This means that a work generated by artificial intelligence is unlikely to enjoy copyright protection.

The above view was also confirmed by a recent judgment handed down in the United States on 18 August 2023. The case concerned an action against the US Copyright Office, which denied copyright to Stephen Thaler for an image generated by artificial intelligence. In the judgment, the court shared the view of the US Copyright Office and pointed out that works of art generated by artificial intelligence cannot be protected, as human authorship is a fundamental requirement of copyright law.

However, there are also other views in the literature. As some authors point out, works generated by artificial intelligence can be protected by copyright if its decisive shape depends on a human being whose action is not purely technical. For example, when generating an image by means of AI, a human will formulate the command in a very detailed and elaborate way limiting the freedom of the algorithms.

Currently, however, the prevailing view indicates that due to the premise of creativity, which stems from human nature, only an object that is the result of human activity can be the subject of copyright protection. This seems to be the prevailing view and it cannot be expected without a change in the law that the courts will develop a different line of jurisprudence.

3. Copyright infringement by artificial intelligence

It is worth noting that there is growing controversy over the way AI-based tools that are responsible for creating music, images or photographs work. Applications such as the aforementioned Midjourney or DALL-E, among others, use millions of images found on the open web and then, through learned algorithms and pattern recognition capabilities, they have the ability to generate new images in the same style.

With this in mind, artists who upload their work to the Internet can contribute to the training of various AI tools. In this way, borrowing from their works may occur which will result in copyright infringement.

The economic aspect is yet another issue. If AI uses existing musical works to create new music, the issue of compensation and its amount can become complicated.

You will e ale to read more about this issue in our next article on litigation and copyright infringement in relation to the use of AI.

4. Regulation – a solution to the problem?

Currently, the above copyright issues have not been regulated in Poland at the national or EU level. However, on 20 October 2020, the European Parliament adopted resolutions on intellectual property rights for the development of artificial intelligence technologies (2020/2015(INI)). Importantly, the EP highlighted the difference between human-made creations using AI and AI-generated creations. Furthermore, it indicated that when AI is used solely as a tool to assist the author in the creation process, the current intellectual property framework still applies.

Recently, a new copyright solution has also been adopted by China. An act on the management of generative AI services came into force on 15 August 2023. One of the tenets of the new regulation, is to prevent the use of data that infringes intellectual property to develop generative artificial intelligence.

In addition, China was the first country where a court granted copyright to material created by artificial intelligence. The case concerned an article that was written by the artificial intelligence-based Dreamwriter app, which was licensed to STCS. The Chinese court ruled that the copyright of the article belonged to STCS, and called the competitor company that had made the article in question available on its website to compensate the loss.

5. Summary

Presently, the above-mentioned problems cannot be settled definitively due to the lack of adequate copyright and AI regulations.

Please note, accordingly, that it is currently assumed that copyright protection can be enjoyed by works whose creator is a human being. It can also be expected that more and more copyright infringement disputes concerning the use of others’ works by artificial intelligence-based tools will be initiated in the courts of law.

The full text of the European Parliament resolution is here: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=OJ%3AJOC_2021_404_R_0007