A few days ago, with 523 votes in favour, 46 against and 49 abstentions, the European Parliament approved the AI Act, the first comprehensive law on artificial intelligence to regulate its use in order to protect the privacy and other rights of European citizens.
One of the most heated debates concerns intellectual property: artificial intelligence and copyright appear unable to reach common ground in legislation.
An increasingly important issue concerns not only who owns the rights to works created by algorithms, but also whether the use of generative Artificial Intelligence generativa may infringe copyright.
Let us clarify the issue.
AI and copyright: creative, but only up to a point
In Italy, copyright is governed by Law No. 633/1941 and serves to protect and recognise the value of creative works and their creators. No procedure is required for it to be recognised: copyright becomes an inviolable right as soon as the work is created. Enacted to protect “human” work, the law on intellectual property protection therefore faces challenges when applied to creative products of a different nature.
From literature and graphic arts to music production, there are many fields in which generative AI has demonstrated its ability to operate successfully. One example that went viral is the collaboration “Heart on My Sleeve” featuring Drake and The Weeknd, dedicated to their now former partner, Selena Gomez. The song, created and distributed online by a well-known creator called @ghostwriter, is the result of AI software trained using a vast corpus of works by the two artists and popular songs. The track faithfully reproduces the voices and style of the two singers, although neither of them ever sang a single word of it.
Does AI infringe copyright? Artificial intelligence legislation
The choice of data used to train AI during “training” is crucial, as it directly affects the works it produces. If the algorithm is trained on copyright-protected material, such as images, music or texts, significant legal issues arise.
A further challenge is determining whether artificially generated works are genuinely “original” and whether the creation process is therefore legitimate. One possible argument is that they could be considered “derivative works”. A derivative work is a product that incorporates or transforms an existing work, thereby infringing the original copyright. This issue remains the subject of legal debate and development.
Artificial intelligence and copyright: who is the artist?
Let us now assume that the AI-generated work can be considered original; who would be its rightful owner? The AI, its developer or the owner of the data used for training?
Current copyright laws do not fully accommodate works generated by AI because, as we have said, they were created to protect human work.
Each plausible answer raises further questions:
- we could consider the AI itself to be the author, but it would not be recognised as a rights holder.
- Should authorship be attributed to the developer of the AI? But how can we determine how much influence they have over the content created?
- The author could therefore be the owner of the dataset used for training; however, the data does not necessarily determine the specific form or content of the final work.
AI and copywritingCopyright and artificial intelligence: the jury’s verdict
The legal position is still being debated, but we already have some important precedents to refer to when discussing AI and copyright.
- Recent rulings in the United States have established that works created entirely by Artificial Intelligence cannot be protected by copyright because they lack human authorship. This was confirmed by a decision of the federal court in Washington, D.C., which rejected a request for copyright protection for an artwork generated by Stephen Thaler’s “Creativity Machine” algorithm.
- In Italy, AudioCoop, which represents more than 270 independent record producers, welcomed a ruling concerning works created by artificial intelligence. It proposes banning works generated exclusively by AI and recognising copyright only if at least 50% results from human input.
- During the Festival di Sanremo 2016, “The Scent of the Night”, a work by architect Chiara Biancheri, was used as stage scenery without her permission. When accused of copyright infringement, Rai denied that the work qualified for authorship on the grounds that it was a product of artificial intelligence; however, the courts and the Supreme Court recognised it as creative and eligible for protection, thereby highlighting the importance of human creative input in digital works for copyright protection and establishing a national precedent concerning artificial intelligence law.
Artificial intelligence and copyright: the case for the defence
Following the lawsuit filed on 27 December 2023 by the New York Times against OpenAI and Microsoft over the improper use of its archives, the complexity of the relationship between copyright and artificial intelligence has become increasingly apparent.
OpenAI rejected most of the allegations, defending its use of the data as “fair use” and emphasising that ChatGPT does not reproduce the texts stored online by the newspaper verbatim. At the same time, however, Sam Altman’s company began negotiations with several publishers to reduce the risk of future legal action.
Among the most widely discussed partnerships are those with the French newspaper Le Monde and the Spanish media group Promotora de Informaciones (Prisa). The agreement provides for the use of content produced by both companies to improve the artificial intelligence (AI) systems used by ChatGPT, enabling it to offer users higher-quality content in both French and Spanish. OpenAI has not disclosed details of its payments to Le Monde and Prisa, but according to some unofficial sources, the amount is estimated to be between one and five million dollars per year for licensed access.
What does the future hold?
There will be much discussion of copyright and artificial intelligence. To adapt to the widespread presence of AI, legislation on artificial intelligence is exploring new directions that also call into question the fundamental concepts of originality and creativity.
New technologies are an inescapable reality, offering significant benefits to those who learn how to use them.
However, it is important to understand the differences between the authenticity of a holiday with friends and an AI model’s reconstruction of that experience, and to remember to appreciate both environments for their unique characteristics.
