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Who has the copyright to an AI-produced picture?

Generative artificial intelligence can produce text and pictures that look like created by humans. But who owns the outcome of content produced by AI? Czech courts have now directly dealt with the issue of copyright protection for content created with the help of generative AI, Council of Europe’s Audiovisual Observatory reports saying it’s  first time ever ruling. In a case about an AI created picture, the court stated that “artificial intelligence by itself cannot be the author (…) when only a natural person can be the author, which artificial intelligence certainly is not.”

The decision was made available by Prague’s municipal court. According to the data in the judicial database, no appeal was filed against it and it is therefore final, the Observatory reports.

“The dispute was sparked by a Prague law firm’s publication of an image created by artificial intelligence. According to the law firm (the plaintiff), the image was created based on a prompt/assignment: “create a visual representation of two parties signing a business contract in a formal environment, for example in a conference room or in the office of a law firm in Prague. Show only the hands.” 

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“The law firm used the resulting image in its web presentation, where the defendant obtained it and also placed it on its website. However, the plaintiff did not prove this fact in the proceedings.”

The image was attacked by the plaintiff, claiming that he was the author. He also demanded a delay and removal claim, i.e. the image should disappear from the website and that it should not be used in any way. The city court rejected the lawsuit in its entirety, the Observatory reports.

First, the court stated that “artificial intelligence by itself cannot be the author (…) when only a natural person can be the author, which artificial intelligence certainly is not.”

The Observatory says that according to the court, the image created by the AI tool does not even represent a work of authorship according to the Copyright Act, as it does not meet the conceptual features of a work of authorship. 

“This is not a unique result of the creative activity of a physical person – the author. The plaintiff himself did not personally create the work, it was created with the help of artificial intelligence, and it was proven in the proceedings based on the assignment” the judgment’s reasoning states.

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The court then commented on the nature of the assignment itself, which was the basis for the subsequent image generated by AI. “It is possible to talk about the theme of the work or an eventual idea, which, however, is not a work of authorship in itself,” the court concluded.

Specialists at the World Economic Forum have earlier warned that copyright laws need to change to keep up with the potential of AI.

“With generative AI impacting content creation, it is essential for policy-makers and legislators to re-examine and update copyright laws to enable appropriate attribution, and ethical and legal reuse of existing content”, specialists summarised results of a conference called “Responsible AI Leadership: A Global Summit on Generative AI”  that took place in San Francisco. 

Trying to answer the question if content made by AI is copyrightable, it seems specialists agree that it depends on the level of human interaction. How much have humans contributed and how much is made by software?

Professor Arun Sundararajan, New York University, has said an important factor when discussing AI and copyright is the scalability: Once this is encoded into an AI system, new creations can be generated at a breath taking pace, he said at a World Economic Forum conference.

“The law is also unclear today on the ownership associated with something generated by AI, a particular creation. So if an AI system writes a story or generates a piece of art or composes a song, in some jurisdictions, if it is completely AI-generated with no human participation at all, nobody owns it, it’s in the public domain.”

“If there’s enough human assistance, such as providing a storyline which the AI completes for you or you outline a song and the song is then AI-generated, then you can continue to own the copyright.”

“On the issue of who owns the creative process, there seems to be little or no law that is giving us a definitive answer on how we can reclaim ownership of our creative process.”

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