The Forgotten Creator: Towards a Statutory Remuneration Right for Machine Learning of Generative AI

Generative AI is disrupting the creative process(es) of intellectual works on an unparalleled scale. Algorithmic tools are increasing users’ production capacity of literary and artistic works to almost infinite levels. However, the quality of the outputs is strictly dependent on the quantity and quality of the inputs, some of which are protected by copyright. This scenario gave rise to tensions between copyright holders and generative AI companies. While the formers claim control over this new kind of exploitation of their works, the latters wish to train their algorithms freely with as many contents as possible. This contribution suggests exploring the idea of introducing a statutory license for machine learning purposes as a compromise solution to ensure an attractive environment for the development of artificial intelligence without marginalizing the role played by human authors. This remuneration proposal is rooted in a fundamental rights analysis that balances i.e., the right to science and culture and freedom of artistic expression (Arts. 11 and 13 EUCF, 19 UDHR, 27.1 UDHR, 15.1 a and b ICESCR) vis-à-vis the right for creators to benefit from the protection of the moral and material interests resulting from their scientific, literary or artistic production (Arts. 17.2 EUCF, 27.2 UDHR, and 15.1 c ICESCR).