ChatGPT, MidJourney, DeepSeek…Artificial intelligence is now part of the daily lives of many Internet users. While these technologies are commonly used to generate images, videos, texts and other time-consuming tasks, few users are aware of the legal consequences of producing them. Artificial intelligences are trained on large databases of pre-existing works, enabling them in turn to produce new content. Some might be tempted to claim copyright over the content generated in this way, but is it really protected, and who owns the rights to it?
Is a work generated by artificial intelligence protected by copyright?
Copyright is a form of ownership by the author of the works he or she creates. To benefit from this protection, the work must be an original human creation bearing the imprint of its author’s personality. Protection covers literary, musical, artistic or digital works resulting from ” an intellectual creation by the author which reflects the author’s personality and is manifested in the author’s free and creative choices ” (Eva-Maria, CJEU,1 Dec. 2011, C-145/10). Case law has gradually moved towards a more objective conception of the concept of originality, which is assessed according to the author’s ” own intellectual contribution ” to the creation of the work, having regard to the advent of databases and software (Cass., 17 Oct. 2012, no. 11-21.641).
While artificial intelligence may be considered to be a tool at the service of the creator in the same way as a paintbrush, this concept may be called into question when the machine occupies a predominant place in the process of creating the work. Many works of art are created at the drop of a hat: the user gives instructions to the AI, but does not create the work with his or her own hands.
In this hypothesis, the regime for works generated by an AI is similar to that for conceptual art, given that the execution is carried out by the machine: protection is subordinate to the substance of the work provided upstream by the user. The user’s instructions must demonstrate free and creative choices (for conceptual art: ” showing that the artist’s conceptual approach has been formally expressed in an original material work ” Cass. 13 Nov. 2008, no. 06-19.021). The preparatory acts carried out by the artist must reflect a sufficient degree of human intervention to enable him to claim copyright protection. This applies in particular to the choice of software, the content of the instructions formulated, and any adjustments made to the result generated.
In 2005, the Bordeaux Court of Appeal ruled that “ an intellectual work, even one created using a computer system, can benefit from the rules protecting copyright, provided that it reveals even in a minimal way the originality intended by its creator ” (Bordeaux Court of Appeal, 31 January 2005, JurisData no. 2005-262987, concerning plans for mobile bottling units created using a computer system). On the other hand, the doctrine considers that in the absence of human intervention in the creation process, the work cannot be protected by copyright.
Consequently, copyright protection for content created by artificial intelligence is subject to theoriginality of the work in question, as well as a sufficient degree of user intervention in the creation process.
Who owns the rights to elements generated by artificial intelligence?
The question of who owns the copyright in content generated by an AI remains uncertain in France.
Under French law, the owner of copyright is in principle a natural person (Cass., 15 Jan. 2015, no. 13-23.566), so that the status of author cannot be granted to the robot itself, which has no legal personality.
On the other hand, in its 2020 report, the Conseil supérieur de la propriété littéraire et artistique (CSPLA) is considering designating the designer of the AI or its user as the author of the works generated. Some academics are open to recognising the designer as the author. The other part remains cautious in this respect, given that the AI produces the content independently of the will and knowledge of the latter. However, the CSPLA considers that ” the designation of the AI designer appears to be the solution most respectful of copyright “.
The AI user is also considered as a candidate for author status, provided that he makes creative choices in the development of the content, without being assimilated to a simple sponsor. As the Court of Cassation has pointed out, ” the status of author cannot be granted to a person who has confined himself to supplying an idea or a simple theme ” (Cass., 8 Nov. 1983, Bull. Civ. I., no. 260).
The terms of use of the OpenAI platform transfer to the user all his ” rights, titles and interests ” in the content generated at his request, it being specified that this transfer does not extend to the content generated by other users, even if it is identical. Finally, the platform retains the right to use the content generated ” to provide, maintain, develop and improve our Services, to comply with applicable legislation, to enforce our terms and policies and to ensure the security of our Services “. However, users have the option of objecting to the content they generate being used for machine learning purposes.
As French law currently stands, it is not possible to provide a specific answer to the question of AI, although ordinary law does apply. Divergent positions can also be observed internationally. English law confers the status of author on the person who ” took the steps necessary to create ” a computer-generated work (Copyright, Designs and Patents Act 1988, art. 9.3). The United States refuses to grant such protection to AI-generated works (United States Copyright Office, Case 1:22-cv-01564-BAH, Oct.1, 2023), while China recognised it in 2023, in view of ” the author’s intellectual investment in the creation of the image ” (Beijing Internet Court, Nov. 27, 2023).
Goldwin actively monitors legal developments in the field of artificial intelligence and can advise you on any intellectual property issue. Our specialist team is on hand to advise you on the ownership and scope of your rights and on legal proceedings.
