The media has been full of stories lately about AI-generated art and texts. These reports raise interesting questions related to IP law. When news about the first lawsuits came in, we took the opportunity to share our thoughts on them in some academic work that will be published in the weeks ahead.
The cases brought before courts in the UK and the US concern claims by artists as well as rightsholders against providers of AI art generators. These generators, accessible online, create unique pieces of art in a matter of seconds. But in order to enable them to do so, they have to be "trained", typically by feeding them huge amount of data. Such training data comprises pictures, drawings and photographs that are protected by copyright. While the current debates focus primarily on whether AI-generated works qualify as intellectual property and, if so, who is to be considered the legal owner of these rights, the pending cases step in earlier. The courts will have to clarify whether the training of the art generator may legally involve works protected by IP laws without the rightsholders' consent.
In essence, the discussions will revolve around whether AI training is "neutral" from a copyright perspective or whether it includes the use of works that fall within authors' exclusive rights. Since AI training does include acts of reproduction (which is an exclusive right), the discussions may shift to exceptions and limitations provided by copyright law. On the one hand, AI training could be compared to a person surfing the web and reviewing the available material in order to learn from it (which is neutral from a copyright perspective or just includes transient or incidental reproduction, which is allowed). On the other hand, the reproductions for AI-training purposes have an economic relevance and are normally not merely transient or incidental. The outcome under different national or regional laws (e.g. US and EU copyright law) may vary, also depending on the available exceptions and limitations and their interpretation.
These are only a few of the burning copyright issues in relation to AI tools. Stay tuned for future Schoenherr Legal Insights where we will highlight some legal challenges (and their prospect for alterations) of AI art generators.
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