Copyright protection for works created by artificial intelligence

Alan Jay PERLIS, a computer specialist, stated in 1982 that “in man-machine symbiosis, it is man who must adjust: The machines can’t.“. This statement is particularly true today.

Indeed, with the development of artificial intelligence, the latter is now capable of generating creations in an almost autonomous way in many fields. We can therefore legitimately ask ourselves whether these creations are eligible to protection by copyright.

However, in the current state of copyright law and doctrine, the creator is necessarily a physical person, and this despite the fact that this rule is not expressly stated in the legal texts. Indeed, the human intervention is essential here, since the human being is the only one to have the “mind” necessary to the creation of the work. Moreover, the Intellectual Property Code specifically targets physical persons.

This limitation as to the nature of the person who can be recognized as an author is due to the sine qua non condition allowing the application of copyright: originality, which is fundamentally linked to the author’s personality and defined in jurisprudence as the imprint of the author’s personality on his creation.

Let us recall here the Painer decision in which the Court established that a photograph is original in the sense that it is an intellectual creation specific to its author and reflects his personality. It also added that the condition of originality is met when “the author was able to express his creative abilities in the making of the work by making free and creative choices“, i.e. by infusing it with his “personal touch“. This condition of originality thus implies the necessity to be in the presence of a physical person since only a physical person is able to make free and enlightened choices testifying of his personality in the work.

Therefore, since artificial intelligence is devoid of any personality and of the consciousness of the result required from the author of the creation, its realizations are not able to reflect any personality and cannot de facto fulfill the condition of originality.

In the same line of thought, the US Copyright Office has just confirmed in a recent case in the United States that works of art generated by artificial intelligence are not eligible for copyright protection.

Faced with this inapplicability of copyright, a part of the doctrine, following the example of Audrey LEBOIS and by the need to ensure a return on investment for the economic actors, consider that the solution would be the implementation of a sui generis right for the producers of creations made by artificial intelligence. Another side considers that it would be preferable for these creations to remain free of private rights.

Whatever the case, it is certain that as long as the legislator has not made a clear and precise decision on this point, this subject will continue to be vigorously debated in the doctrine and among the various economic actors.

– Isabella MOUSTIQUE, Intellectual Property Lawyer at Mark & Law

Sources:

• PERLIS Alan Jay, « Epigrams on programming », ACM’s SIGPLAN journal, SIGPLAN Notices Volume 17, september 1982.
• SOULEZ Marie, « Le droit de la propriété intellectuelle à l’épreuve des technologies robotiques », La Semaine Juridique, 2016, No. 37.
• Decision of the Court of Cassation. 1st civil chamber,  January 15, 2015, No. 13-23.566 : JurisData No. 2015-000315.
• BENSAMOUN Alexandra, FARCHY Joëlle, « Mission Intelligence artificielle et Culture », Final Report, January 27, 2020, December 1st, 2011, C-145/10, Painer, §89, 92.