Are artistic works generated by AI protected by copyright?

6 minute read
25 January 2024

The intersection of artificial intelligence (AI) and intellectual property (IP) laws is a rapidly evolving field that has been discussed in a number of court cases around the world.

The issue of AI and copyright raises important questions about the nature of creativity and authorship, as well as the role of machines in the creative process.

In this article, we take a closer look at a recent landmark decision in China, what it means for image copyrighting, and exploring the status of AI-generated content in France.

On 27 November 2023, a Beijing court (the Beijing Internet Court) ruled that an artistic work generated by artificial intelligence (AI) qualifies as an original creation protected by copyright. Neither party has appealed the decision, and the said first instance judgement has now been effective. Will other follow?

In this case the creator of an image, which was created using an AI image generator, alleged a blogger violating his copyrights in the AI-generated picture, his right of authorship, and the right of dissemination via information networks. The blogger had used the picture to illustrate a poem on a content-sharing platform.

The Beijing Internet Court recognised that the plaintiff held copyright over the image generated by the AI. The judge held that the image was 'original' because of the intellectual effort expended by the author in choosing and formalising the requests (prompts) to make the AI tool work.

The active participation and creative choices made by the human behind the image generator were therefore decisive in establishing the existence of copyright over that image, so that the degree of involvement of the human during the creative process appears to be a determining factor in granting copyright.

The judge also ruled that when people use AI models to generate images, it is essentially humans using tools to create the work and therefore the human have the copyright to the images, which is protectable under Chinese copyright law. However, the court also emphasised that the plaintiff should prominently indicate the use of the AI technology or model, based on the principles of good faith and the need to protect the public's right to know.

Although the judges stressed the need to proceed on a case-by-case basis to assess whether the works generated by the AI reflect the author's personal expression and are or are not eligible for copyright protection, the fact remains that this decision could have considerable repercussions both for future litigation in this area and for the technology industry, particularly in China.

The judgment has sparked wide-ranging discussions and debates in China, with both support and differing opinions emerging. The intellectual property community has long debated the copyrightability of AI-generated works, but it seems that a definitive conclusion has yet to be reached. The ruling of this case, which revolves around AI-generated artworks, continues to draw attention to the copyrightability of AI-generated works, bringing the focus back to the topic that has been trending in the past year. It goes further to delve into the specific scenario of generating artistic images using generative AI, building upon the previous discussions.

On a practical level, the recognition of copyright in works generated by AI encourages companies to use such tools, especially as it increases the commercial value of the products generated in this way. Moreover, this decision is consistent with the objectives of China, which is a key player in the fields of digital economy and technological innovation and makes no secret of its ambition to become a world leader in AI.  

Within the European Union, and especially in France, a broad consensus is emerging to deny copyright protection to productions generated exclusively by AI.

In the French tradition, originality requires the work to bear the imprint of the author's personality, which would exclude machine-generated creations. An extensive copyright protection to products resulting from AI would be detrimental to human creations and the value attached to them. Hence this position is based as much on historical and philosophical considerations as on economic ones.

French courts have not yet ruled on protection of creations assisted by AI tools but in theory nothing seems to stand in the way of content benefiting from copyright protection where the AI has simply been used as an aid in the creative process.

In such case, in accordance with the French anthropic conception of copyright, which protects the creative work of human beings, it would be likely that any copyright ownership over AI-assisted creation would be attributed to the physical person involved in the creative process, and therefore at the origin of the creative choices.

Nothing is yet set in stone, and the first decisions handed down by the French courts will be sure to attract everyone's attention.

If you are interested to hear more about AI and copyright we recommend watching our recent webinar Getting copyright right for Generative AI,or read our recent insights on the status of AI and IP protection laws on Artificial Intelligence Law.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.