Artificial intelligence (AI) is revolutionizing numerous sectors, including the artistic and creative one, raising complex issues regarding the protection of copyright and therefore of authorship rights.
Who owns the rights to a work generated by an AI? How can existing regulations adapt to this new reality?
Recently, several jurisdictions have introduced guidelines to clarify copyright regulation in the context of AI, with significant implications for artists, developers, and tech companies.
The guidelines on copyright and artificial intelligence in the States
The United States Copyright Office (USCO) recently published guidelines that establish a fundamental principle: works created entirely by artificial intelligence cannot be protected by copyright.
However, if a work is the result of a collaboration between AI and a human creator, it can be subject to protection, provided that the human intervention is decisive.
According to the USCO, the author must demonstrate having made significant creative choices in the process of creating the work.
This means that a work generated by AI with a simple textual input might not be considered sufficiently original to obtain copyright, while a work in which the artist manually modifies and reworks the content generated by the AI might be protectable.
An emblematic case is that of Kris Kashtanova, an artist who attempted to register a work created with the help of the Midjourney AI. The USCO determined that copyright could only be recognized for the parts of the work that showed a clear human intervention.
The European Landscape: the EU’s Approach to artificial intelligence in terms of copyright
In Europe, the debate is equally heated. The European Union has introduced the Artificial Intelligence Regulation (AI Act), which establishes a series of obligations for companies that develop and use AI. Although the regulation does not focus exclusively on copyright, it addresses topics such as transparency in the training of AI models and the use of protected data.
In particular, the EU is discussing whether the works used to train AI models should be covered by specific licenses.
This aspect is crucial, as many artificial intelligences are trained on huge databases of images, texts, and music without the explicit consent of the original creators.
Some countries, like the United Kingdom, are considering the possibility of exemptions for text and data mining (TDM), allowing AI companies to use protected works without the need for authorization. This prospect, however, is strongly contested by the creative industry, which fears a devaluation of human work.
The Art Market and the Impact of Artificial Intelligence
AI has an increasingly significant impact on the art and creativity market. Works generated by models like DALL·E and Midjourney are attracting collectors and galleries, but at the same time raise questions about their legal nature.
In 2023, an artwork generated by AI was sold at auction for over 400,000 dollars, demonstrating the commercial potential of this new medium. However, the lack of copyright protection could discourage artists and investors, as there is no guarantee on the intellectual property of the works.
Another example is the music industry: some AI platforms generate tracks based on the styles of well-known artists, raising controversies over possible copyright violations. Companies like Sony and Universal are exploring ways to protect the rights of human artists, including through the use of digital watermarks.
Legal Challenges and Reform Proposals
The current regulations do not yet seem entirely adequate to address the complexity of generative AI. Some experts suggest possible reforms to balance innovation and protection of copyright:
- Obbligo di Trasparenza: Companies that develop AI should clearly state which datasets are used to train their models.
- New Licenses for Data Mining: A system of mandatory licenses could ensure fair compensation to artists and rights holders.
- Definition of Human Creativity: Clearer criteria could be introduced to determine the degree of human intervention necessary to obtain copyright protection.
- Market Monitoring: Create supervisory bodies to ensure that AI is not used to violate intellectual property rights.
Artificial intelligence is redefining the very concept of creativity and intellectual property. New regulations must find a balance between supporting technological innovation and the protection of artists’ rights.
While the debate continues, it will be essential to monitor the evolution of the sector and adopt measures that ensure a fair and sustainable market for all the actors involved.
As expert in digital marketing, Amelia began working in the fintech sector in 2014 after writing her thesis on Bitcoin technology. Previously author for several international crypto-related magazines and CMO at Eidoo. She is now the co-founder and editor-in-chief of The Cryptonomist and Econique.
She is also a marketing teacher at Digital Coach in Milan and she published a book about NFTs for the Italian publishing house Mondadori, while she is also helping artists and company to entering in the sector. As advisor, Amelia is also involved in metaverse-related project such as The Nemesis and OVER.
