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 critically reviews the arguments currently advanced to change the copyright regime for AI-generated works. At the same time, it is argued that the development of AI systems should not be inhibited as these can have a many beneficial aspects (including for creators) if appropriately regulated. For this reason, this contribution suggests 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.