When the Robots (try to) Take Over: Of Artificial Intelligence, Authors, Creativity and Copyright Protection

As works are increasingly produced by machines using artificial intelligence (AI) systems, with a result often difficult to distinguish from that of a human creator, the question of what should be the appropriate response of the legal system and, in particular, of the copyright system has become central. If the creative input of the author has traditionally been the generator of copyright protection, AI forces to reassess what in the creative process is special in human creativity and where the creative input lies in AI-generated works. But it also poses more fundamental questions on what the copyright system should achieve and who/what it should protect. In particular, as many human authors will potentially face the competition of these AI machines on the market, new ways of remunerating human creators have to be imagined while making sure that the copyright system does not stand in the way of these important technological developments. This contribution analyses the copyright issues related to so-called “generative AI” systems and reviews the arguments currently advanced to change the copyright regime for AI-generated works. It is argued that the copyrightability of AI-generated outputs should be considered with outmost care and only when AI is used as a technical tool for creators in their creation process- meaning when they can serve a human author. At the same time, AI systems are here to stay, and their development should not be inhibited as they can have many beneficial aspects (including for creators) if appropriately regulated. For this reason, it is proposed that the machine learning process using copyright-protected works to train the AI gives rise to a limitation-based remuneration right to the benefit of human creators. More generally, it is argued that for the EU to continue to be a vibrant place for culture and creativity, (finally) cherishing and putting the Human Author at the center of the copyright system is necessary (and not only to built-up protection/fences to the benefit of copyright industries). In doing so, we might be able to have in the future AI-robots that serve creators and creativity, and not the other way around.