Newsletter / 13 April 2023

Intelligence artificielle
Faced with the onslaught of creative and generative AIs, copyright law is somewhat destabilized on its traditional bases. The qualification of "work of the mind" stumbles on these dehumanized robots. The intellectual property code risks losing its Latin, unless it is rewritten.

Faced with the onslaught of creative and generative AIs, copyright law is somewhat destabilized on its traditional bases. The qualification of “work of the mind” stumbles on these dehumanized robots. The intellectual property code risks losing its Latin, unless it is rewritten.


The use of artificial intelligence (AI) by companies, especially in communication, is becoming more and more widespread. Software such as Stable Diffusion, Midjourney, Craiyon, or Dall-E 2 can create images from natural language instructions (text-to-image). It is also possible to create text with tools such as ChatGPT, a conversational robot launched in November 2022 by OpenAI (1), or even music with Flow Machines from Sony (2).



Artistic blurring of copyright


The uses are quite varied: illustration of a newspaper, creation of a brand, texts for a website, an advertising medium or for a post on social networks, musical creation, publication of a complex literary work, …, and soon to produce films.
musical creation, publication of a complex literary work, …, and soon to produce films. Artists have seized upon it to develop an art form called “AI art”, “prompt art” or “GANism” (3). And, sometimes, artists transform the results obtained into NFTs (4), these non-fungible tokens authenticating a unique digital asset on a blockchain. To produce a text, image or music on command, the software needs to be fed with pre-existing texts, images or music and metadata on these contents (“deep learning”). The more reliable information the software has, the more convincing the result will be. As with any technological innovation, the use of such software raises many legal issues. The central question in terms of intellectual property is to know who owns the rights – if they exist – on the content generated by AI?


Under French law, a work is protectable if it is original. Originality is defined as revealing the imprint of the personality of the author, who can only be a human being. It is therefore necessary to determine who is the author, or who are the authors of an image, a text or a music created through an instruction given to a software. It is also necessary to determine who can be the owner of the rights. It could be the authors of pre-existing works, ourselves when we gave an instruction to the software, or the author of the software (for example, the company Stability AI that develops Stable Diffusion). The entities operating these softwares contribute to the process of obtaining unpublished texts, images or music, insofar as it is these content generators that propose a result comprising a set of choices rather than another.


Thus, it is the “autonomy” of AI software that throws the traditional conception of copyright into disarray. A court in Shenzhen, China, had ruled in 2019 that a financial article written by Dreamwriter (AI developed by
Tencent in 2015) had been reproduced without permission, recognizing that the creation of an AI could benefit from copyright. Nevertheless, the software’s contribution is automated and, in our view, the technical use of software to create an image, text or music does not give the owner of the software any rights in the image, text or music: in the absence of human intervention in the choice of colors, shapes or sounds, no copyright or co-authorship can be claimed on behalf of the software.


On February 21, 2023, in the United States, the Copyright Office decided that cartoon images created by the AI Midjourney could not be protected by copyright (5). The conditions of use of these text, image or music generators can confirm this. In the case of Dall-E 2, the “Terms of use” expressly state that OpenAI transfers to the user all rights on the texts and images obtained, and even asks that the content thus generated be attributed to the person who “created” it or to his company. Stability AI grants a perpetual, worldwide, non-exclusive, royalty-free, irrevocable copyright license for all types of use by Stable Diffusion, including commercial use. But in the absence, in our opinion, of any transferable rights, these provisions seem to be mere precautions.



Rights of the person using the software


It is therefore essential, for any person who wishes to use, commercially or not, the contents created via generative or creative AI tools, to check if the company operating the online site where he creates them gives him the rights and under what conditions. Since the creative contribution of the person who gives instructions to the image, text or music generator is limited to the production of an idea implemented by the software, and since the ideas are not protectable by copyright, it is doubtful that a court would recognize the quality of author to this person. Since the user of the software does not mentally conceive, in advance, the content obtained, it is difficult to argue that this content bears the “imprint of his personality”. But above all, one could go as far as denying the qualification of intellectual work to the images, texts or music created by the AI. Indeed, the code of the intellectual property (CPI) grants the protection of the copyright only to “works of the spirit” created by humans.



“Work of the mind” inherent to the human being


In the absence of a positive creative action on the part of a human, one could argue that no “spirit” is mobilized, and therefore no “work of the mind” protectable by copyright is created. If they are not “works of the mind”, the contents thus created would then be intangible goods under common law. They are appropriable not by copyright (6) but by possession (7) or by contract (general conditions granting ownership to the user). They are then creations free of rights, belonging to the public domain. This echoes other types of authorless “works” such as the paintings of the Congo chimpanzee or the famous selfies taken in 2008 by a macaque monkey. In the latter case, the American courts decided that the self-portrait taken by a monkey was not a protectable work because it was not created by a human, who is the subject of rights. On the other hand, as soon as the result obtained is reworked and a formal personal contribution transforms this result, the qualification of “work of the mind” can be retained, but only because of the original modification brought to the result produced by the software.


This case is moreover provided for in the “Sharing & Publication Policy” of Dall-E 2 which asks its users modifying the results obtained not to present them as having been entirely produced by the software or entirely produced by a human being, which is more an ethical rule, of transparency, than a legal requirement. In French law, a new work that incorporates a pre-existing work without the participation of its author is said to be “composite” (8). If the pre-existing works are in the public domain, their free use is allowed (subject to the possible opposition of the moral right by the right holders). On the other hand, incorporating without authorization a pre-existing work that is still protected constitutes an act of infringement. If, for example, one gives the instruction “Guernica by Picasso in color”, one will obtain an image that integrates and modifies a pre-existing work. Picasso’s works are not in the public domain and the rightful owners must be able to authorize or prohibit not only the exploitation of the image obtained and request its destruction, but perhaps also prohibit or authorize the use of Picasso’s works by the software.


The production and publication by a user of a “Guernica in color” could therefore constitute an infringement; but the integration of Guernica in the software’s database (deep learning) alone could also constitute an infringing act (9). Indeed, the CPI punishes the fact of “publishing, making available to the public or communicating to the public, knowingly and in any form whatsoever, software obviously intended for the unauthorized making available to the public of protected works or objects” (10). The “manifest” character of the making available, and the qualification of “making available” itself could be discussed. But it is above all the European directive “Copyright” of 2019 (11) that could come to the aid of the operators of AI generating content by offering a securitization of their use of protected pre-existing works. It provides a framework for the exploitation of protected works for any purpose, including commercial, in order to extract information, particularly in the case of text, image or music generators. It also provides for the possibility for the holders of rights on these works to authorize or prohibit their use, except for academic purposes.


Such an authorization can hardly be prior and the operators, OpenAI for example, therefore set up procedures for reporting the creation of infringing content (12). The site Haveibeentrained.com offers to check whether an image has been provided as input to image generators and to report one’s wish to remove the work from the database. But artists are already complaining about the complexity of obtaining such a removal (13). As we can see, the irruption of AI creations disturbs the intellectual property law, whose current tools are insufficient to answer the questions raised. We can imagine that AI will one day allow us to produce “fake” sculptures of Camille Claudel, by using 3D printing technology, or to make Rimbaud or Mozart write poems and symphonies of an equivalent – or even superior! – that they could have written and played if they had not died so young. The question of the imitation of the style of still living authors is not
without raising other debates.


Note: (1) – On 14-03-23, OpenAI introduced the GTP-4 version of ChatGPT. (2) – See EM@295, p. 4. (3) – “GANism” refers to Generative Adversarial Networks. (4) – Non-Fungible Tokens (NFT). (5) – https://lc.cx/ CopyrightGov 21-02-23, (6) – Only because of their creation, article L. 111-1 of the CPI. (7) – Article 2276 of the civil code. (8) – Article L. 113-1 of the CPI. (9) – Getty Images announced on 17-01-23 that it had filed a complaint against Stable Diffusion for having processed photos belonging to it in a deep learning process. (10) – Article L. 335-2-1 of the CPI. (11) – https://lc.cx/ Copyright17-05-19 (12) – Article 3d of the OpenAI general conditions. (13) – https://lc.cx/ Libération29-12-22 (14) – https://lc.cx/Procé



Article written by Véronique DAHAN and Jérémie LEROY-RINGUET for the magazine Edtion Multimdedia n° 297 10 avril 2023.

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