From Leonardo to the Next Rembrandt – The Need for AI-Pessimism in the Age of

Algorithms1
Dr. habil. Péter Mezei
Associate Professor, University of Szeged, Faculty of Law and Political Sciences, Institute of
Comparative Law and Legal Theory. Adjunct Professor (dosentti) of the University of Turku
(Finland). Email: [email protected].

I. Introduction

Law is a fiction,2 and copyright law is an excellent example for legal fictions. All its norms,
definitions, doctrines – e.g. creativity, originality, personality, economic and moral rights,
limitations and exceptions, to name a few – are created and regularly re-created by human minds to
serve metaphorical purposes.3 At the same time, copyright law is not a limitless fiction. It has its
historical development, roots, subjects, objects, purposes and limits. The ultimate question of
copyright law is nothing else than why and to whom do laws assign copyright protection?4 And the
short answer to these questions is simple enough: expressions of the human mind shall be protected
for the benefit of individual creators on the one hand and mankind in general on the other hand.
This shall serve as a starting point and a guiding light when assessing the impacts and guessing the
future of copyright protection of outputs/contents generated by Artificial Intelligence (AI).

The symbiosis of copyright protection and technological innovation dates back to centuries and has
been closely connected ever since the modern movable type-based printing press was invented by
Johannes Gutenberg. In most cases, both society and the rights holders have profited from this
symbiotic interconnection, as the new technologies were created for the sake of humanity and
rights holders became entitled for compensation. On the other hand, Jessica Litman pointed out
that “[c]opyright laws become obsolete when technology renders the assumptions on which they
were based outmoded”.5 New (disruptive) technologies have made copyright law fragile. This
fragility was further exaggerated by the delayed (and occasionally ineffective) legislative reactions.
Likewise, users have always been more willing to take advantage of innovations rather than strictly
following the provisions of copyright law (and paying royalty to the authors). Unsurprisingly,

1
The author of this paper would like to thank the organizers and participants of the meetings where parts of this paper
were presented, including the 4th Binational Seminar of the TU Dresden and the Charles University in Prague, June 27,
2019 [compare to Linke / Petrlík (2020) 39-45.]; the Rodin Museum’s Moral Rights in the Serial Arts conference in
Paris, October 18, 2019 (http://www.musee-rodin.fr/sites/musee/files/editeur/colloques/Droit Moral/Le droit moral
dans les arts d'%C3%A9dition complet.pdf); the Centre for Intellectual Property Policy & Management’s Spring
Public Lecture series in Birmingham, February 6, 2020
(https://microsites.bournemouth.ac.uk/cippm/2020/02/06/peter-mezei-from-leonardo-to-the-next-rembrandt-the-futur
e-of-authorship-originality-and-moral-rights-in-the-age-of-algorithms/); and the LES Hungary’s “Artificial
Intelligence and IP” event, February 28, 2020
(https://www.lesi.org/docs/default-source/meetings-committee/ip-it-les-hungary.pdf). The manuscript was closed on
July 24, 2020.
2
On legal fictions see Fuller (1967); Del Mar / Twining (2015). On legal fictions and copyright law see especially Ng
Boyte (2014) 707-762.
3
On metaphors and law see especially Larsson (2017).
4
This paper aims to use copyright law as a term to describe authors’ rights, related rights and sui generis protection.
Wherever necessary, these terms/categories will be clearly separated.
5
Litman (2006) 22.

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copyright laws and rights holders usually tried to eliminate or, alternatively, to control new
technologies. The clash between the rights holders’ and the society’s interests speeded up by the
emergence of digital technologies, and most importantly by the internet.6

Policy reports and scholarly papers on the protectability of computer generated contents were
published as early as 1965. 7 While the intersection between AI and copyright law has been
continuously discussed since then, it has become an extremely hot topic recently. 8 Both the
number and the depth of research on legal aspects of AI show an extreme growth. Many of these
findings – e.g. related to the ethics,9 legal status,10 liability,11 competition law aspects,12 general
regulation13 or the role of AI in comparative research14 – can have direct relevance for copyright
law. The legal discussion of AI dominates a significant part of the copyright discourse and
academic events these years.

While a significant amount of (let’s call them AI-positivist) papers accept the idea of the
protectability of AI-generated outputs, 15 this paper follows a rather AI-pessimistic approach.
Daniel Gervais questioned whether IP law is ready for AI.16 I believe that copyright law is neither
ready for a paradigm shift, nor is it appropriate to protect AI-generated outputs. Carys Craig and
Ian Kerr noted that any conclusion that copyright law’s existing fictions shall be stretched to cover
AI is “nonsense upon stilts”.17 This paper agrees with this opinion and argues that copyright’s old
author-centric paradigm shall be retained.18 The key arguments will be closely connected to one
single notion of copyright law, namely the author itself. The paper takes the view that the most
fundamental (or core) elements of copyright law are deeply connected to human authorship.
Indeed, as long as there is no convincing policy argument or legal and economic evidence to the
contrary, the status quo of copyright law shall not be stretched to cover algorithmic creativity as
well.

The structures of this paper is as follows. Chapter II focuses on the most important features of AI
from a copyright perspective. This part is strictly target-oriented. Instead of conclusively defining
AI from a scientific perspective (that this author is unable to do) I’ll only filter out the key elements
of algorithmic creativity, and discuss why is it imaginable at all that AI-generated outputs might be

6
Tamura (2009) 63-74.; Mezei (2014) 75-79.
7
See e.g. Samuelson (1986) 1192-1196.; Bridy (2012) 22-24.; Denicola (2016) 264-266 and 268-269.; Boyden (2016)
377-378.; Ihalainen (2018) 726.; Bonadio / McDonagh (2020) 115.
8
The importance of the intersections between AI and IP might be mirrored by the number of recent editorials in the
leading IP journals. See e.g.: Walz (2017) 757-759.; Ginsburg (2018) 131-135.; Bond / Blair (2019) 423.; Spindler
(2019) 1049-1051.; Gervais (2020a) 117-118.; Castets-Renard (2020) 141-143.
9
See e.g. Dettling / Krüger (2019) 211-217.; Magrani (2019) 1-19.; Larsson (2020) 1-23.
10
See e.g. Atabekov / Yastrebov (2018) 774-782.; van den Hoven van Genderen (2018) 15-56.; Bennett / Daly (2020)
60-80.
11
See e.g. Keßler (2017) 593-594.; Oster (2018) 14-52.; Revolidis / Dahi (2018) 57-79.; Garde (2018) 1132-1138.;
Zech (2019) 198-219.; Lohsse / Schulze / Staudenmayer (2019).
12
See e.g. Walz (2017) 757-759.; Beneke / Mackenrodt (2019) 109-134.
13
See e.g. Pagallo / Corrales / Fenwick / Forgó (2018) 1-13.; Fenwick / Vermeulen / Corrales (2018) 81-103.; Turner
(2018).
14
Wolff (2019) 484-504.
15
Compare to Chapter V below.
16
Gervais (2020a) 117.
17
Craig / Kerr (2019) 6.
18
Ricketson (1991) 3.

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protected by copyright law. Chapter III provides a collection of notable examples for algorithmic
creativity – ranging from music to movies, software, literature and fine art. This part is neither in
favour nor against the protectability of AI-outputs. It only highlights that the “AI creative industry”
certainly exists. Chapter IV raises four further (open) questions, and ultimately guesses whether
copyright law is the right tool to protect AI-outputs. Chapter V answers the most important
question of Chapter IV, and includes the AI-pessimistic approach of this author. It discusses five
distinct, still closely interconnected issues/concepts of copyright law; namely, its history, its
justifications, the concept of author, originality and moral rights. I believe that these fundamental
pillars or core elements of copyright law speak against any protection of AI-outputs, and there is no
conclusive evidence that would necessitate the overruling of the status quo. Chapter VI lists
multiple ideas that other (both AI-optimistic and AI-pessimistic) authors raised as possible options
to protect AI-generated outputs by (some form of) copyright law. This paper takes the view that the
majority of these solutions are either unconvincing or ineffective. A very limited number of options
might be acceptable theoretically, but testing them in reality (that is, providing some form of IP
protection to AI-outputs) deserves careful ex ante analysis. Such analysis, especially economic
modelling of the effects of AI-copyright on the original copyright industry and the “newcomers”, is
practically missing yet. In the final chapter, the paper concludes that the time has not come (yet) to
fit emergent works into copyright law.

II. What is Artificial Intelligence?

Dreams of thinking machines, algorithms, artificial intelligence – tools that are first imagined by
Ada Lovelace and Charles Babbage,19 and then put into reality by computer scientists like Claude
Shannon and Alan Turing – came true.20 What AI really means (or should mean) is, however, a
mystery – obscured by thick clouds. As Shlomit Yanisky-Ravid noted, “defining AI is not an easy
task”.21 This can easily be noticed in light of the recurring attempts to define AI that share common
doctrinal elements (similarities) and show significant differences as well.

Pamela Samuelson called AI “a specialty field within computer science that is aimed at producing
computers that exhibit intelligent conduct”.22 Amit Konar viewed AI as the “simulation of human
intelligence on a machine, so as to make the machine efficient to identify and use the right piece of
‘Knowledge’ at a given step of solving a problem”.23 Nils J. Nilsson opined that “AI is that activity
devoted to making machines intelligent, and intelligence is that quality that enables an entity to
function appropriately and with foresight in its environment”. 24 The European Commission
defined AI as “systems that display intelligent behaviour by analysing their environment and
taking actions – with some degree of autonomy – to achieve specific goals”.25 According to
Florian De Rouck “AI systems will be designed to perform human-like cognitive tasks, steadily

19
On the calculating machine and the analytical engine, as well as Lovelace’s and Babbage’s collaboration see Gleick
(2011) 115-120.
20
On Turing’s universal machine and Shannon’s rat see ibid. at 204-268.
21
Yanisky-Ravid (2017) 673.
22
Samuelson (1986) 1186., note 1.
23
Konar (1999) 1.2.
24
Nilsson (2010) 13.
25
Artificial Intelligence for Europe, COM(2018) 237 final, 1. See in greater details: High-Level Expert Group on
Artificial Intelligence (2019) 8.

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improving their performance by learning from experience or external data”. 26 Finally, Mauritz
Kop, citing Stephen Hawking, argued that AI is “a non-human system that possesses cognitive
functions and skills such as learning and reasoning. A smart computer that can think and plan
strategically. A science that can assist humanity to find answers to the big questions/themes we
face”.27

AI can be either a software or a hardware;28 and it can be a system, an entity and a science as
well.29 More importantly, depending upon the independence and the “creativity” of the given
software or hardware, we can differentiate between strong (full), general or weak (narrow) AI.30
This latter category is what matters the most from the perspective of copyright law. From mere
tools or assistants to human activities, algorithms, robots or machines have become “creators” (or
generators in my understanding) of information.31

The creation of/with AI has three main stages: (1) coding; (2) input, training or machine learning;
and (3) output.32 Coding is mainly a human privilege (yet), and input/training is also heavily
overseen by humans in the majority of cases. Various algorithms (most importantly Artificial
Neural Networks or strong AI) are coded in a way that they are capable of learning autonomously,
that is, to select the input they are willing to analyse. Indeed, “machine learning algorithms can
rewrite themselves”.33 In sum, a significant amount of output might be generated by the machine
with no causal connection between the original human programmer and the final output – usually
coined as computer-generated (or emergent, generative or procedurally generated) “works”.34

The real challenges to copyright protectability might come from this part of AI. As long as a
machine or algorithm is only a mere tool or assistant to a human creator, copyright law is more or
less ready to classify the final output as a protectable subject matter. Challenges arise as soon as the
causal link between the human coder or end-user and the output fades. We will continue to focus on
this latter situation.35

III. AI in the creative industries

AI is a part of our daily life.36 Many of us use automatic word processing and translation services,
commute with GPS-navigation offering real-time traffic data (based on the geolocation function of
our cell phones), use chatbots to file our complaints or request information from various
corporation, or discuss any questions with virtual assistants like Siri. AI is used in sports, health

26
De Rouck (2019) 432.
27
Kop (2020a) 4.
28
Artificial Intelligence for Europe, COM(2018) 237 final, 1.; Yanisky-Ravid (2017) 673-674.
29
Kop (2020a) 4.
30
On the technological aspects of the various forms of AI and machine learning see Noto La Diega (2018) 98-101.;
Rohner (2019) 46-51.; Ballardini / He / Roos (2019) 119-121.; Wolff (2019) 487-489.
31
Compare to Gervais (1991) 628-654.
32
Gervais (2020b) p. 5-7.
33
Zech (2019) 1145. As Zech also noted: “[n]owadays, artificial neural networks may reach a complexity of up to 10 8
‘simulated neurons’ with up to 1011 ‘simulated synapses’”. Ibid. at 1146.
34
De Rouck (2019) 434.
35
Compare to Dornis (2019) 1253-1254.
36
See e.g. Denicola (2016) 253-254.; Keßler (2017) 589-590.; Yanisky-Ravid (2017) 664-666.; Yanisky-Ravid /
Velez-Hernandez (2018) 4-6.; Ginsburg / Budiardjo (2019) 396-398.

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care, weapon industry, robotics, virtual reality, fintech, retail stores, digital marketing, fashion
industry, and it is the holy grail of self-driving cars.37 Museums and other members of the “art
industry” also use AI as a part of their services; e.g. humanoid/anthropomorphic robots to learn the
reactions of visitors,38 provide help to the visitors,39 apps based on image recognition technology
to support museumgoers to identify artworks,40 or to measure the value/price of an artwork.41
Robot AI might be able to foresee global epidemic, 42 and hence support the fight against
humanitarian catastrophes.43 Big data would also remain an uncontrollable ocean of information
without algorithms.

AI has an exponentially growing relevance in the copyright industry as well. AI is both a topic of
creative contents (object) and the generator of such contents (subject). A vast amount of motion
pictures focus on the life, feelings, love and fate of AI in an anthropocentric world;44 the way how
artificial creations (machines, algorithms or even Replicants) confront with humans;45 and how
machines might create art.46 In the movie industry, AI might be effectively used for marketing
purposes, e.g. for selecting the best possible date of cinema releases.47 It won’t take too much time
to see the first ever movie with an A.I. robot in the “female lead role”.48

The list of algorithmic compositions grew long as well. Iamus,49 EMI,50 AIVA51 or Jukedeck52
evidence machines’ ability to generate new musical contents.53 Algorithms are ready to finish
symphonies,54 to compete on a “Eurovision” contest dedicated to algorithms,55 or to generate
parodies of existing works.56 Indeed, they are capable to translate the spike protein (the structure)
37
Hao (2019); Keh (2019); Metz (2019); Kessel (2019); Grady (2019); Alba (2019); Wakefield (2020); The
Economist (2020); Palazzetti (2020).
38
On Musee du quai Branly’s “Berenson”, the robotic art critic see Munro (2016).
39
On “Pepper” , the humanoid robot of Smithsonian see Alpeyev (2018).
40
On “Magnus” see Haigney (2019).
41
Bailey(2020).
42
Prosser (2020).
43
Broad (2020); Carey (2020).
44
Compare to movies like “Ex Machina” or the South-Korean popular TV-show “I am not a robot”.
45
Compare to movies that tell us modern Frankenstein stories, e.g. “The Terminator” or the “Matrix” saga, the clash of
HAL and the astronauts in “Space Odyssey 2001”, the hunt for Replicants in “Blade Runner” (even though Replicants
were not “machines”, but bioengineered beings).
46
Compare to the fight robot Chappie in “CHAPPiE”, Ava in “Ex Machina”, or my personal favourite, Andrew Martin
(NDR-113) in “Bicentennial Man”. On Ava in “Ex Machina” see Yanisky-Ravid (2017) 667.; Yanisky-Ravid /
Velez-Hernandez (2018) 7. For further examples from various movies see Craig / Kerr (2019) 1-2.
47
Siegel (2020).
48
Keegan (2020); Bahr (2020).
49
Ball (2012). See further Denicola (2016) 264.
50
Johnson (1997). See further Deltorn / Macrez (2018) 17-18.
51
“AIVA: The Artificial Intelligence composing emotional soundtrack music”. See https://www.aiva.ai/.
52
Featherstone (2017). See further Bonadio / McDonagh (2020) 112.
53
For further examples see e.g. Deltorn / Macrez (2018) 3. and 5-6.; Ralston (2005) 283 and 287-288.
54
See e.g. Boxall (2019); Huggler (2019). The premiere of Beethoven’s AI-finished symphony was scheduled for the
end of April 2020, but it was postponed to November 2020 due to the COVID-19 epidemic. See Horseman (2020).
55
Nic Fildes: When AI Takes on Eurovision: Can a Computer Write a Hit Song?, ArsTechnica, May 11, 2020
(https://arstechnica.com/gaming/2020/05/when-ai-takes-on-eurovision-can-a-computer-write-a-hit-song/).
56
The contents of “Weird A.I. Yancovic” (mimicking the name of the famous music parodist, Weird “Al” Yancovic)
are generated by two neural networks, GPT-2 and XLNET. Mark Riedl, the founder of the project has to face, however,
legal challenges of its model. Two months after the posting of the “artificial parody version” of Michael Jackson’s
“Beat it” on Twitter, IFPI requested the take-down of the content. See Truong (2020).

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of SARS-CoV-2 into classic music (that researchers believe to help understanding the functioning
of COVID-19 and to fight the global epidemic it caused).57

AI scored significant victories in the domain of art. The Next Rembrandt project gained a lot of
publicity,58 as well as the sale of the AI-generated Portrait of Edmond Bellamy by the auction
house Christie’s for 432,500 USD. 59 Although it is not “classic art”, but e-David generates
portraits with its “artificial brushes”,60 and the futuristic dream images of DeepDream 61 look
significantly creative in a traditional copyright sense.62

AI – or simply robots – has long been the object of classic science-fiction literature,63 but it has
already become a subject/source of such “creativity” as well. Projects like Ray Kurzweil’s
Cybernetic Poet, 64 AARON, 65 BRUTUS, 66 or Racter 67 show the capacity of AI to generate
literary works, from haikus to novels.68 Some outputs are as entertaining (and some are as boring)
as human works. Artificial poets and novelists might need to be ready to e-dedicate their works for
their human readers, if this trend continues.

AI also became more than a tool in the news industry. RADAR, with significant human
intervention, creates automated news reports; 69 Automated Insights’ and Narrative Science’s
algorithm reports about sports events;70 Quakebot, developed by the Los Angeles Times, reports
on earthquakes in California.71 The protection of such AI might become a reality soon. In China,
for example, a court ruled in early 2020 that Tencent has valid copyright claim over the articles
produced by the corporation’s Dreamwriter algorithm.72 As the Court argued, direct connection
(or causal link, as I argued above) existed between the editorial team’s creative choices and the
final output of the algorithm. The selection, judgment and skills of the editorial team’s members
and the above-the-minimum level of creativity of the outputs ultimately allow for the protection of
the news reports by copyright for the benefit of the publisher (the employer of the editors).73

IV. Open Questions of the Future of AI and Copyright

57
Lang (2020).
58
See https://www.nextrembrandt.com/. See further Yanisky-Ravid (2017) 663., note 5.; Yanisky-Ravid /
Velez-Hernandez (2018) 3-4.; Maggiore (2018) 383-384.; Zibner (2019) 3.
59
Cohn (2018). See further Lauber-Rönsberg / Hetmank (2019) 570.; Dornis (2019) 1253.; Craig / Kerr (2019) 3-4.
60
Starr (2013). See further Yanisky-Ravid (2017) 662-663.
61
See https://deepdreamgenerator.com/. See further Guadamuz (2017) 171-172.; Palace (2019) 223-224.
62
For further examples see e.g. Craig / Kerr (2019) 2-3.
63
Compare to Isaac Asimov’s Robot Universe, which is the richest literary source on the future of robotics.
64
Poetry by the Cybernetic Poet, Kurzweil Cyberart Technologies
(http://www.kurzweilcyberart.com/poetry/rkcp_how_it_works.php). See further Bridy (2012) 15.
65
Anderson (2001). See further Denicola (2016) 263-264.; Ginsburg / Budiardjo (2019) 411-418.
66
Rensselaer Polytechnic Institute (1998). See further Bringsjord / Ferrucci (2000).
67
See https://archive.org/stream/pdfy-T3abGAQ80ecd63PL/racter_policemansbeard_djvu.txt. See further Ramalho
(2017) 12.; Palace (2019) 220-221.
68
Such a notable example is “The Day a Computer Writes a Novel”, which was – less surprisingly – a novel written by
an algorithm. See Schiller (2016). See further Yanisky-Ravid (2017) 668.; Ihalainen (2018) 725.
69
See https://pa.media/radar/. See further De Rouck (2019) 433-434.
70
Beckett (2015). See further Denicola (2016) 257-259.; Palace (2019) 224-225.
71
Oremus (2014). See further Boyden (2016) 380-381.; Denicola (2016) 257.
72
Yan (2020); O’Neill (2020). On a detailed analysis of AI under Chinese copyright law see He (2019) 218-238.
73
Tencent Dreamwriter (2020) 652-659.

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Before turning to my arguments against the introduction of any norms on AI-copyright, we shall
address a few open questions of this field.

First, do we face any “AI winter” yet? AI-science has chilled at least twice since research on this
field started many decades ago.74 In light of the continuous development of Artificial Neural
Networks, the enormous amounts of funding involved,75 as well as the fact that AI has become a
part of our daily routine,76 we might tend to believe that no significant AI winter is ahead of us
anymore. Critical voices exist, though. Some have noted that the hysteria around AI “could
actually end up turning people against AI research, bringing significant progress in the technology
to a halt”.77 Or as a columnist wrote: “[t]oday’s ‘AI summer’ is different from previous ones. It is
brighter and warmer, because the technology has been so widely deployed. Another full-blown
winter is unlikely. But an autumnal breeze is picking up”.78

Second, will future AI algorithms need any human intervention at all? This question might look
naïve as we already have strong AI that generates outputs without human contribution. We need to
stress, however, that coding of AI (the first step of the AI-process) is still dominantly a human
domain. Furthermore, not all AI can generate outputs autonomously. The success of algorithms
depends heavily on human participation in the creation process yet. The best example here might
be The Next Rembrandt project. There, programmers taught the algorithm and selected the features
of the new “painting” as well. The ultimate creation of the output was done by the AI itself, but
strictly bound to programmers’ decisions. The same is true for RADAR, as introduced above. In
short, human participation in the “AI industry” remains necessary for a period of time. This also
means that challenging copyright’s status quo is not an urgent task yet.

Third, will there be any market/need for AI-generated contents? At first sight, this question might
be outdated, since the sale of the Portrait of Edmond Bellamy evidences that there is at least some
market for some emergent works. Still, we shall remain cautious with generalizing the relevance of
the Christie’s auction. On the one hand, the sale of AI artworks by auction houses is still the
exception rather than the rule. On the other hand, the mere sale of any output does not necessitate
any legislation on this field. In the lack of empirical evidence, we are unable to measure whether
AI-generated outputs could replace human creations on the market or not.79 It is similarly far from
certain that the successful sale of the Portrait of Edmond Bellamy could be repeated in other fields
of the creative industry. While art is quite subjective, the biological differences of the inception of
various artworks are significant. Harmony and logic has for example more relevance in the field of
music or literature. Random words bear no meaning, but random brush strokes might be visual art.
Finally, “market” is neither only about the quality of the given content, it is also about branding.
While AI-generated music is a reality, there is no guarantee that humans would find AI-music more

74
Lim (2018).
75
Deltorn / Macrez (2018) 4.
76
“If, for several decades, AI experienced waves of enthusiasm and setbacks (“winters” of AI), it is now part of
everyday life, whether it is using a personal virtual or virtual assistant, or travelling in a semi-autonomous vehicle.” See
Castets-Renard (2020) 141.
77
Naudé (2019).
78
Cross (2020).
79
Lauber-Rönsberg / Hetmank (2019) 578.

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appealing and would purchase more tickets to a Compressorhead80 concert than to a Motörhead
event. (We have no evidence to the contrary either.) We lack empirical and economic evidence
regarding the marketability of AI-outputs, which is a great concern from a policy perspective.

Fourth, is there any real need to protect AI-generated outputs by copyright law? In her study on the
“European Civil Law Rules in Robotics”, Nathalie Nevejans took the view that “[t]here is no need
to overhaul the whole body of literary and artistic property law, but merely to adjust it in the light of
the autonomous robots´ new/future abilities”.81 I am not confident that this is a correct opinion.
Copyright law is a complex net of various concepts, doctrines, theories and rules. Stretching this
net to fit AI into copyright law does neither look an easy task nor a wise decision. Some elements of
copyright law can easily be applied in an AI environment, even in the lack of any paradigm shift.
For example, software programmers, who develop an algorithm and contribute to the causal link
between the input and the output, might fit into the concept of author.82 Similarly, the existing
rules on the copyright and sui generis protection of database authors and database
makers/producers, respectively, might be applied to a certain level.83

Emergent works trigger more uncertainties. What legislative justifications can serve as a basis for
the protection of emergent works? What about exclusivity of rights or monopolies? Shall we grant
exclusive rights to those algorithms that might flood the market with an unlimited amount of
outputs? Shall we grant personality and moral rights to AI? Who shall have the ownership interests
over the AI-generated outputs? Shall we find a human behind the machine? Shall we analogically
apply the work-made-for-hire doctrine in the AI environment? What about originality? Can AI be
intellectual, creative and expressive? How to count the term of protection, if algorithms do not age?
Shall autonomous machine learning comply with the existing limitations and exceptions of
economic rights? Shall we use the rules on technological protection measures and rights
management information to AI outputs as well? Without the lack of any personality on AI’s side,
who shall bear the liability or accountability for any possible infringement of others’ copyrights
(during the coding, learning and output phases)? Who and how can enforce any possible rights in
favour of AI? Who shall enjoy the benefits (harvest the fruits) and receive any rewards for the
misuse of any AI-generated output? Will AI have any standing to defend itself or sue others? And
this list might easily include further dozens of similar questions.

In short, copyright law is far more complex than allowing a mere “adjustment” to fit AI into its
domain. Indeed, relying on the sports language of American football: the ruling on the field might
only be reversed if there is any indisputable (conclusive) evidence for the reversal. More clearly:
the status quo of copyright law might only be overruled or stretched if there is significant and
balanced evidence that AI deserves an equivalent level of protection with humans. Otherwise we
might run into a serious trap. As Jan Zibner noted, “[t]o regulate an uncertain phenomenon with no
strict terminology and understanding (…) is challenging”.84

V. The ruling on the field…

80
Compressorhead is a “robot band”. Its robot musicians present (let’s skip calling it perform) human made
compositions. See e.g. Leonard (2013).
81
Nevejans (2016) 6.
82
Hristov (2017) 435.; Lauber-Rönsberg / Hetmank (2019) 572-573.; Nägele / Apel (2020) 297-299.
83
Noto la Diega (2018) 113-149.; Nägele / Apel (2020) 299-301.
84
Zibner (2019) 8. See further Nägele / Apel (2020) 289.

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I often use the metaphor of an ancient Greek temple to describe copyright law in general. An
ancient Greek temple has three main parts: the foundations and crepidoma; the columns; and the
entablature (including the most decorated, top triangle-shaped tympanon).85 In a pure metaphoric
sense, the foundations and crepidoma of the temple of copyright is its history and the incentives
that the system is based on. The columns of the temple are the doctrinal elements of the existence of
copyright law, e.g. the author and related rights holders; originality (threshold of protection);
subject matter; economic and moral rights; limitations and exceptions; term of protection. The
entablature of the temple of copyright are the tools, methods and practices how copyrights are
exercised and enforced. Five elements of this metaphoric temple require careful analysis in order to
decide, whether AI-generated outputs can fit into the concept of copyright law. These are the
history of copyright, copyright incentives, the concept of authorship, originality, and moral rights. I
believe that these core elements of the regime run against the inclusion of emergent works in
copyright law. As long as AI-outputs do not fit into or fulfil the requirements of these “core
elements”, we cannot talk about AI-copyright at all.

1. Copyright’s short history

The emergence of copyright protection is due to the appearance and conjunction of four different
factors. First, the (European) invention of the printing press replaced manual multiplication with
massive reproduction of written works (mainly books), and made the copies marketable. We might
call this factor the “material side” of copyright’s history. Second, individualism and the
Renaissance increased the interest of self-expression as well as the protection of the
personal/intellectual interests of authors. We might call this factor the “personal side” of
copyright’s history. Third, with the advent of public education as well as the Renaissance’s artistic
explosion, citizens’ demand to become owners of physical copies of intellectual creations
culminated in a new copyright ecosystem. We might call this factor the “market/consumption side”
of copyright’s history. Fourth, for various centuries (from the 15th to the 18th century), kings or
other leaders of European countries/cities granted “patents” to specific printers to exclusively print
specific or all books at a designated geographical territory.86 It took centuries to learn that these
monopolies do not serve the society in general. It was only in 1709 that the English political
environment became ready to settle and regulate the copyright ecosystem.87 We might call this
factor the “legislative side” of copyright’s history.88

A look at the first ever copyright acts of the world might evidence the basic rationale of copyright
law. In England, before the Statute of Anne came into force on April 10th, 1710, the Stationers
Company controlled book publishing.89 The Company’s monopoly was based on its role as a
censor on behalf of the Crown.90 The interests of the authors were rarely articulated. The authors
could sell their “copy rights” to the printers for a one-time fee, but they did not receive a share from

85
Cautious readers might notice that the structure of an Ancient Greek temple is much more sophisticated, partially
depending upon the relevant order (Ionic, Doric or Corinthian), than the short generalization I used above. On Ancient
Greek architecture see in details: Barletta (2001).
86
See e.g. Matthews (1890) 587-589.; Ginsburg (2016) 237-267.
87
Compare to Rose (2010) 67-88.
88
Mezei (2014) 73-75.
89
Compare to e.g. Gadd (2016) 81-95.
90
Matthews (1890) 589-590.

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the income that the Company generated from the publications. The Company and its censorship
turned to be a limitation to a prospering publishing market and national literature in the 17th century.
John Milton (in his Areopagitica) and later Daniel Defoe argued in favor of the elimination of
censorship and the introduction of freedom of press, as well as the legislative protection of authors.
The Statute of Anne finally eliminated the Company’s monopolies, declared that the rights of
reproduction and distribution should be vested in the authors for a limited (but renewable) period of
time, and introduced the doctrine of public domain.91 Based on the IP Clause of the Constitution,92
the first Copyright Statute of the United States, introduced in 1793, intended to “promote the
progress of science and useful arts”. The law thus aimed to reach a balance between the interests of
the creators and the society as a whole. The basic objective of the first French Copyright Statute
(the so called “Chénier Act”), similarly created in 1793, during the bloody years of the French
Revolution, was to introduce liability for the content of the citizens’ speech.93 Irrespective of the
different economical, technological, intellectual, social and political challenges that these countries
faced in the 18th-19th century, these first copyright acts were common in the protection of
individual human authors on the one hand, and in serving the interests of the general public on the
other hand.

The history of copyright law undeniably proves that the development of technology has instigated
the most legal changes. At the same time, as Rochelle C. Dreyfuss correctly noted, IP law has also
enabled the various industrial revolutions: “[t]raditional forms of intellectual property rights
(patents, copyrights, and trademarks) created strong incentives to expend time, effort, and money
on producing the advances that gave rise to the Information Age”.94

Yoshiyuki Tamura depicts the joint evolution of technology and copyright law with three “waves”.
The first wave was the European invention of the printing press. In Tamura’s opinion the second
wave came in the second half of the 20th century with the appearance of analogue reproduction
technologies, when a larger portion of the society became able to copy protected materials at home.
Digital technologies and the internet brought the third wave, as they allow for easy, fast and cheap
access to and use of protected subject matter in the digital domain.95 Irrespective of Tamura’s
selective conception (it merely disregarded technologies that were related to the appearance of
audio and audiovisual contents, e.g. photographs, camera, motion pictures, radio, sound recordings
etc.), his theory correctly points out that most of the challenges and changes to the copyright
system were induced by the newly invented technologies in the last three centuries. At the same
time, the technological development has always correlated with the consumers’ needs, as well as
their service to the society and to the rights holders as well.96

In sum, irrespective of the effects of various technological achievements on law and society as well
as the emergence of corporate interests, and ultimately the dominance of trade related aspects of
intellectual property over the romantic concept of authorship, copyright’s history evidences that

91
Patterson / Birch / Joyce (2009) 244-256.
92
See US Constitution Article 1., Section 8., Paragraph 8. On the relevance and meaning of the IP Clause see further
Bracha (2016) 342-346.
93
Latournerie (2001) 43-46. On the historic development of French copyright law see in great details: Rideau (2016)
391-422.
94
Dreyfuss (2020) 2. See further Grosse Ruse-Khan (2020) 3.
95
Tamura (2009) 66-68.
96
Regarding the development of protection of musical works see e.g. Mezei (2014) 77-78.

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the ultimate goal of copyright law has always been to serve individual authors’ human-centric and
the human society’s general commercial and cultural purposes – in short: the cultural and economic
development of humankind. As we have seen above, AI is such a broad concept (hardware,
software and science at the same time) that it can serve the human society’s goals in a broad sense.
Just recall the AI-led research in the fight – and hoped triumph over – global epidemics that
seriously hamper economic, social and cultural development. Nevertheless, AI’s general
advantages do not mean that algorithms shall be treated on an equal level with humans’ individual
or collective interests. Copyright history is unquestionably a human history. Indeed, as subject
matter has been historically connected to human authorship under the Berne Convention, emergent
works would not enjoy the multinational protection of the Convention at all, even if their countries
of origin would protect AI by copyright.97

2. Copyright Incentives

A myriad of researchers discusses the justifications of copyright protection. Only to name a few,
William Fisher, in his widely cited paper spoke about welfare, fairness, culture and social planning
theories.98 Shlomit Yanisky-Ravid mentioned law and economics, personality, labour theories.99
Takashi Yamamoto differentiated between labour, personality, incentive and vehicle theories.100
Carys Craig and Ian Kerr recognized deontological (personality and labour) and teleological
(utilitarian) theories.101

This paper is unable and unwilling to judge which opinion is the most convincing. I therefore use
the most well-known expressions, and I’ll differentiate between three main forms of justifications
of copyright law: the personality, the labour and the utilitarian theories. It is worth noting that no
copyright regimes are based on any single justifications like these; indeed, all countries rely on a
mixture of various theories.102 Even the most utilitarian copyright regimes respect the personality
of authors;103 and, vice versa, “it’s all about the money” in the most author-centric regimes as well.

What matters more, for the purposes of this paper, is that both the personality and the labour theory
are strictly connected to an individual creator’s personal achievements. While the labour theory
focuses more on the invested energy and hard work of that person, and the personality theory
focuses more on the intellectual/metaphysical bond between the author and “her child”, both
justifications admit that protection is granted to the human author for the creation of the intellectual
output.

97
Ginsburg (2018) 134-135.
98
Fisher (2001) 168-199.
99
Yanisky-Ravid (2017) 699-707.
100
Yamamoto (2018) 4-8.
101
Craig / Kerr (2019) 32-33. For further discussions related to incentives and artificial intelligence see e.g. Bently /
Sherman (2009) 34-39.; Ramalho (2017) 18-20.; Rohner (2019) 70-74.; Dornis (2019) 1257-1258.
102
Ginsburg (1990) 991-1031.; Ricketson (1991) 4-8.
103
“Utilitarianism, in short, does not escape the ideological clutches of the romantic author-function. Moreover, the
individualized, atomistic self of liberal theory that supports and overlays the romantic author figure is positively
vibrant in utilitarian theory.” See Craig / Kerr (2019) 35. Or as Monroe Price and Malla Pollack put it, “the intention
central here is the intention to profit from the system – not the intention to create masterpieces”. See Price / Pollack
(1992) 713.

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The labour and the utilitarian concepts share another common point: copyright protection is
granted to reward the intellectual (occasionally physical) investment in the creation and to
incentivise any future creations. Under these concepts, the author (be it a human or a “deemed
author”, e.g. a corporation) shall enjoy the fruits of her work.

Irrespective of the justification(s) that a given country applies in its copyright regime, all theories
are inherently bound to the concept of author. In an AI-environment, the personality right
justification shall be declined per se, as long as algorithms do not have any e-personality (which is
not the case yet). The labour and the utilitarian concepts might look applicable to a certain level to
emergent works, as these theories focus on the reward and the incentives of creation rather than on
the creator itself. Algorithms, however, rarely have any interests in rewards and incentives. Daniel
Gervais noted perfectly that “if an AI machine is programmed to ‘create’, it requires no ex ante
legal incentive or ex post reward for doing so”.104 No doubt, several policy considerations might
argue for the introduction of AI-copyright. Kalin Hristov noted that the copyright status quo might
chill innovation in general or the developers to create, use and improve the AI machines’
capabilities, as well as limit the number of available works for teaching, research or other
purposes.105 Similarly, Robert C. Denicola was on the view that “a work’s contribution to the
public welfare does not seem dependent on the process that produced it”, hence it seems to be
socially desirable to extend copyright protection to emergent works.106

It seems so that the existing copyright status quo might only be amended or extended to emergent
works, if there is any new, convincing justification to cover AI-generated outputs. At the moment,
we are not aware of proper evidence on the detrimental effects of the lack of AI-protection. In sum,
there are more convincing arguments against than in favour of the protection of emergent works
under the leading copyright justifications.107

3. The concept of authorship

Copyright statutes, as well as international copyright treaties fail to define one of the most
important elements of the regime, namely the concept of “author”. Commentators of the Berne
Convention confirm that the lack of the definition is generally due to the common understanding
among the Member States that authors are those humans, who create the original works of
expression.108 Even in the silence on authorship, the Berne Convention necessitates to the same
conclusion by requiring that authors are nationals of the Member States of the Union, as nationality
can only be granted to human individuals. 109 The same result can be reached through a

104
Gervais (2020b) 48. See further Samuelson (1986) 1199.
105
Hristov (2017) 438-439.
106
Denicola (2016) 273.
107
Noto La Diega (2018) 107-108.; Rohner (2019) 79.
108
Ricketson / Ginsburg (2005) 358.
109
Berne Convention, Art. 3. Compare to Nordemann / Vinck / Hertin / Meyer (1990) 43.; Ricketson (1991) 8-10.;
Gervais (1991) 643-644. Article 4(a) opens the door for a broader authorship concept with respect to cinematographic
works, as it allows for the application of the Convention to makers of these works if they are headquartered – that is,
they have legal personality – in any of the Member States. Compare to Article 15(1) as well, which says that “[i]n order
that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary,
be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it
shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if
this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.”

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fundamental/human rights approach. Both the Universal Declaration of Human Rights and the
International Covenant on Economic, Social and Cultural Right 110 grant human rights to
“everyone” – where “everyone” practically means “humans”.111 This logic is further supported by
case law. The CJEU concluded in various cases that originality (and therefore copyright protection)
requires that authors shall put their personal touch on their intellectual creations.112 Since the
seminal Trade-mark Cases,113 US courts often use the expression “creation of the mind” in this
context – and there they refer to human minds. 114 In sum, domestic copyright regimes are
generally based on the “originalist premise” of authorship.

Copyright acts, however, protect others than humans as well. The European Union’s Software
Directive – through a legal fiction – expressly allowed for the Member States to grant authorship
status to legal persons. 115 Another example for “deemed authorship” comes from the
work-made-for-hire doctrine. According to it, an employer (or commissioner), including legal
persons, might automatically be treated as the author of the work that originates from the employee
(commissioned person), or it might contractually acquire the copyrights related to the given work.
The classic European related rights break the anthropocentric system of copyright law by granting
separate rights to producers of films, sound recordings and other corporations, e.g. broadcasting
organizations; and by allowing for transfer of copyrights of authors and performers to the related
rights holders at the same time. Strong policy arguments favoured such “breaks” of the
author-centric copyright. Those policy arguments include(d) the fights against piracy, supporting
investment and innovation. To the contrary, such a “break” is correctly refuted, where no strong
policy arguments support the protection of non-human originators. Such a notable example is the
lack of protection for the benefit or animals. This is best evidenced by the famous (or notorious)
Monkey selfie case. There a US federal court refused to grant protection to photographs made by a
black macaque.116 Several scholars base their policy considerations on this case to argue in favour

110
Article 27 and Article 15, respectively.
111
Bonadio / McDonagh (2020) 116.
112
Compare to Case C-5/08 - Infopaq International A/S v. Danske Dagblades Forening, Judgement of the Court
(Fourth Chamber), 16 July 2009 (ECLI:EU:C:2009:465); Case C-145/10 - Eva-Maria Painer v. Standard Verlags
GmbH and Others, Judgment of the Court (Third Chamber), 1 December 2011 (ECLI:EU:C:2011:798); Joined Cases
C-403/08 and C-429/08 - Football Association Premier League Ltd and Others v. QC Leisure and Others, and Karen
Murphy v Media Protection Services Ltd., Judgment of the Court (Grand Chamber), 4 October 2011
(ECLI:EU:C:2011:631); Case C-604/10 - Football Dataco Ltd and Others v. Yahoo! UK Ltd and Others, Judgment of
the Court (Third Chamber), 1 March 2012 (ECLI:EU:C:2012:115); Case C-310/17 - Levola Hengelo BV v. Smilde
Foods BV, Judgment of the Court (Grand Chamber), 13 November 2018 (ECLI:EU:C:2018:899); Case C-683/17 -
Cofemel – Sociedade de Vestuário SA v. G-Star Raw CV, Judgment of the Court (Third Chamber), 12 September 2019
(ECLI:EU:C:2019:721). See to the same effects: Case C-833/19 - SI, Brompton Bicycle Ltd. v. Chedech / Get2Get,
Opinion of Advocate General M. Campos Sánchez-Bordona, 6 February 2020 (ECLI:EU:C:2020:79).
113
Under this Supreme Court ruling from 1879, the copyright law only protects “the fruits of intellectual labor” that
“are founded in the creative powers of the mind.” See Trade-Mark Cases, 100 U.S. 82(1879), p. 94.
114
On the meaning and the historic development of authorship in the US copyright law see especially Samuelson
(1986) 1197-1199.; Bridy (2012) 3-9.; Palace (2019) 226-231.; Gervais (2020b) 23-36.
115
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of
computer programs (Codified version), Article 2(1). Compare to Ballardini / He / Roos (2019) 123.
116
Naruto, et al. v. David John Slater, et al., 888 F.3d 418 (2018). Although the Ninth Circuit affirmed the lower
court’s ruling on the ground that the monkey had no standing to sue, but the ruling itself complies with the U.S.
Copyright Office’s most recent understanding of the concept of “author” as well. The Compendium of U.S. Copyright
Office Practices declare that “The U.S. Copyright Office will register an original work of authorship, provided that the
work was created by a human being. (…) Because copyright law is limited to ‘original intellectual conceptions of the
author,’ the Office will refuse to register a claim if it determines that a human being did not create the work.” See: U.S.

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of an AI-copyright regime.117 This view is, however, superficial and totally misleading at the same
time. Animals might execute cognitive tasks that might serve “communication purposes”; they
however, never do such acts for “dissemination purposes”. Animals do not aim to be treated as
authors, do not fight for individual rights nor do they create for rewards and incentives. If we use
the Naruto case as an analogy, it might be a better analogy against AI-copyright rather than in
favour of it.

Shall AI be treated as a subject of authorship?118 Should we grant such status to algorithms even in
the clear lack of any personality on their side?119 And finally, even if we grant e-personality to
machines, shall that concept be an equivalent of the personality rights granted to humans?

I take the view that only humans can be authors in a copyright sense. 120 As Christopher
Buccafusco perfectly summarized: “[c]onstitutionally, copyright law requires authors; it cannot
simply kill them off”.121 Or as Guido Noto La Diega noted, “[t]he fully dehumanised production of
authorial and entrepreneurial works requires either interpretative stretches or, better, a legislative
reform that clarifies the crucial points of authorship and ownership of AI works”. 122 For the
purposes of copyright protection there must be a human behind the machine, and authorship cannot
be fully “de-romanticized”;123 or, as Josefien Vanherpe put it: “[c]reativity is hereby viewed as a
quintessentially human faculty”.124 And vice versa, the generation of any output is outside of the
scope of copyright law, if there is no causal link between the output and any human behind the
production of that output. If legislation intends to assign some form of IP protection to
AI-generated outputs, that protection shall not be based on any “algorithmic authorship”. These
two words represent an irresolvable paradox.

4. The threshold of originality

Similarly to the concept of author, originality is not defined by international copyright norms.
Nothing else than an open list of possible subject matters and a mere reference to “original works”
in the Berne Convention, 125 and the coverage of idea v. expression dichotomy by various
treaties126 help countries to set the threshold of protection in their domestic copyright regimes.

Copyright Office (2017) §306. Later, the Compendium lists “[a] photograph taken by a monkey” as the #1 example for
expressions that are ineligible for registration in the lack of human authorship. See ibid. at §313.2.
117
On the Naruto case see Guadamuz (2016) 1-12.; Buccafusco (2016) 1274-1275.; Lambert (2017) 14-15.; Hristov
(2017) 448-449.; Liu (2018) 61-65.; Yanisky-Ravid / Velez-Hernandez (2018) 49-50.; Ihalainen (2018) 726.
118
As Pamela Samuelson put it concisely: “[o]nly those stuck in the doctrinal mud could even think that computers
could be ‘authors’.” See Samuelson (1986) 1200.
119
Denicola noted that “writings rather than authors are the more obvious starting point, and asking whether a
computer can create a writing seems more pertinent than asking whether it can be an author”. See Denicola (2016) 271.
120
Deltorn / Macrez (2018) 8-9.
121
Buccafusco (2016) 1260.
122
Noto La Diega (2018) 106.
123
Craig / Kerr (2019) 30-37.
124
Vanherpe (2020) §19.
125
Compare to Berne Convention, Article 2(1) and (3). See further Ricketson (1991) 10.
126
See WIPO’s Copyright Treaty, Article 2; TRIPS Agreement, Article 9(2).

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For long, the domestic variations of originality showed significant differences,127 ranging from the
“sweat of the brow” doctrine in the USA128 through the British “skill, labour and judgment”129 or
the Canadian “exercise of skill and judgment”130 to the Continental European quest for “personal
imprints” of the authors131 and the (strictest) German “Schöpfungshöhe” (level of creativity).132 In
the last three decades, however, we have witnessed a global merger of the concept of originality.133
This “global entropy” is partially due to various concurring events/rulings in different
countries/regions of the world. E.g. the United Kingdom accessed the European Economic
Community (later the European Union) in 1973, and the EU directives have led to doctrinal
changes to the topic of originality in the UK.134 The United States joined the Berne Convention in
1988 (as well as other multilateral treaties in the 1990s); and the Supreme Court of the United
States quashed the “sweat of the brow” doctrine in its seminal Feist v. Rural ruling in 1991.135 In
fact, the USA got closer to its European counterparts regarding the meaning of originality.136 The
CJEU introduced a “common denominator” concept of the threshold of originality. This
autonomous concept of EU law turned to be stricter than the British concept of “skill, labour and
judgment”, but was a clearly lower standard than the German “Schöpfungshöhe”.137

It is also important that originality is closely connected to various other concepts of copyright law,
and hence it cannot be discussed in an isolated way. All intentions to apply originality to emergent
works requires the careful balancing of originality, authorship, 138 subject matter 139 and – in
countries where it is (still) relevant – creativity.140

127
Gervais (1991) 634-640.; Goldstein / Hugenholtz (2010) 189-194.
128
On the pre-Feist case law on originality see Bridy (2012) 15.
129
See especially Ladbroke v. William Hill [1964] All E.R. 465 at 469. Compare to Bently / Sherman (2009) 94-107.
130
CCH Canadian Ltd. v. Law Society of Upper Canada, Supreme Court of Canada, 2004 SCC 13.
131
Goldstein / Hugenholtz (2010) 190.
132
Schricker (1995) 41.
133
Gervais (2002) 949-981. See further Judge / Gervais (2009) 375-408.
134
Rahmatian (2019) 4-34.; Maggiore (2018) 389.
135
Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), p. 345. On the post-Feist meaning of
originality in the USA see Ginsburg (1992) 338-388.; Guadamuz (2017) 180-183.; Yanisky-Ravid / Velez-Hernandez
(2018) 22-31.; Gervais (2020b) 39-46.
136
“[T]he decision is closest to the aesthetic test: The Feist Court wants a living, breathing author; without one, there
cannot be the ‘originality’ demanded. (…) Copyright Law in the United States is shifting toward the European model,
but it is still entrapped in the ideology of its American past”. See Price / Pollack (1992) 717 and 720.
137
Besides the case law of the CJEU listed in note 107 supra, on the concept of originality under EU law see e.g.
Synodinou (2012) 93-113.; Rosati (2013); Leistner (2015) 626-630.; Pila / Torremans (2016) 271-284.; Guadamuz
(2017) 177-180.; Bonadio / McDonagh / Arvidsson (2018) 666-669.; Margoni (2018) 5-8.; Ballardini / He / Roos
(2019) 124-125.; Nägele / Apel (2020) 294.; Walter (2020) 3-5.; Kur (2020) 290-300.; Suthersanen / Mimler (2020)
573-575.
138
E.g. the CJEU case law follows to interpret originality as the “author’s own intellectual creation”; and the US
Copyright Act expressly states that “original works of authorship fixed in any tangible medium of expression” are
protected by the federal law. (Compare to U.S. Copyright Act, §101.)
139
The Berne or the Rome Convention allows for a flexible codification of protected subject matters. Article 2 of the
Berne Convention provides an example for an open list (examples) of works, but Member States are free to introduce
other categories or a closed list of protected works. Compare to the United Kingdom’s Copyright, Designs and Patent
Act, §1 and 3-8 and the United States’ Copyright Act, §102. See further Bently / Sherman (2009) 58.; Goldstein /
Hugenholtz (2010) 195.; Yanisky-Ravid (2017) 714-715.
140
Such a notable example is the US copyright law, where a “modicum of creativity” is a doctrinal element of
originality. To the contrary, The Supreme Court of Canada expressly refuted the requirement of minimum level of
creativity. See CCH Canadian Ltd. v. Law Society of Upper Canada (2004) para, 16 and 25.

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David Cropley’s recent book on human creativity started with a simple statement: “[n]obody really
knows what creativity is!”141 Unsurprisingly, AI-positivist researchers pay close attention to the
concept of creativity to convince their readers that AI-generated outputs fulfil the requirements of
originality. As Florian De Rouck put it, “[w]hether a computer can be creative is ultimately a
philosophical question”.142 Similarly, Tim W. Dornis argued that creativity might be viewed from
the perspective of the process or the result; where “process creativity” focuses on the originator’s
creative choices, and “result creativity” focuses on the output’s features.143 This second category
might be the means to protect emergent works.

This logic is, however, flawed for at least a few reasons. First, as indicated above, creativity is not
a prerequisite of protection in many countries, including the European Union. To the contrary,
originality is generally fixed to authorship and subject matter, both of which are closely connected
to humans and human achievements. Second, originality’s “original premise” is much more
personal and cultural than any utilitarian understanding, e.g. Dornis’ “process creativity”, would
suggest. Indeed, as Neil Weinstock Netanel convincingly noted, copyright’s “production function”
is to provide “an incentive for creative expression on a wide array of political, social, and aesthetic
issues, thus bolstering the discursive foundations for democratic culture and civic association”.144

The romantic concept of authorship (and the quest for geniuses in the process of creation) might be
dead – but human-centric authorship is still alive. As Sam Ricketson put it: “[t]here [should] be
some intellectual contribution above and beyond that of simple effort (‘sweat of the brow’)” for the
purposes of copyright protection.145 Copyright law is not an investment protection scheme.146 The
fact that some countries have entered a sharp “AI race” recently,147 does not legitimize the need for
(urgent) protection of emergent works. 148 Originality cannot be dehumanized, and cannot be
lowered to cover non-human, algorithmic (mass) production of outputs as well – at least not
without any good reason.

5. Moral rights versus AI

Finally, moral rights deserve close attention by both AI-pessimists and positivists. The main
purpose of moral rights – e.g. the most well-known examples: the rights of paternity, integrity, first
publication and withdrawal – is to build a strong personal relationship between the author and her
work.149 In a truly metaphoric sense, moral rights intend to protect the author’s “trademarks” in the
copyright industry.

141
Cropley (2019) 1. It shall be noted, however, that Cropley’s book is not dedicated to copyright law, but to discuss
creative human innovations across ten epochs of human history.
142
De Rouck (2019) 434. See further Rohner (2019) 62 and 66.
143
Dornis (2019) 1254-1255.
144
Netanel (1996) 288 and 347-351.
145
Ricketson (1991) 10.
146
Gervais (2020b) 41.
147
Hristov (2020) 2.
148
To the contrary, see Thampapillai (2019) 96-113.
149
Sundara Rajan (2011) 9.

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Anne Lauber-Rönsberg and Sven Hetmank noted that “[t]oday, the emotional bond between author
and work has been loosened”. 150 No doubt, moral rights – that are the manifestations of the
Romantic concept of authorship – are dead in some sense in the 21st century. Still, they work as “an
indicator of [the work’s] subject, reliability, and quality”.151 Similarly, Michel Foucault believed
that “the author’s name is not simply an element in a discourse (…); it performs a certain role with
regard to narrative discourse, assuring a classification function”.152

By their nature, moral rights are bound to the human originators of the protectable expressions, and
as such, they are inherent obstacles to any argument in favour of AI-copyright. We shall put aside
this fact for a second, and try to answer the following question: can AI exercise the rights treated to
be moral (or personal)? More precisely: can an algorithm have a name that is connected to its
output? Can an AI decide the time of first publication? Can it decide on the withdrawal of the
content; and can it “believe” that its output is complete in its form, and no detrimental changes or
modifications shall be made to the expression? The answer might be clearly affirmative. Indeed, as
humbly indicated above, moral rights represent the “trademarks” of the creators of contents, and in
an overly trade oriented IP world, algorithms might be able to exercise such rights with great
effectiveness.

It is, however, a totally different question, whether algorithms can have any interests in those moral
rights? Similarly to Daniel Gervais’ comment on the lack of interests for rewards and incentives by
the AI,153 it is truly doubtful that machines need any enforceable rights to protect these moral or –
as they are more frequently called in the European droit d’auteur and Urheberrecht – personal
interests. And this is undeniable because AI simply does not fit into the existing concept of moral
rights, as algorithms have no “personality”.

VI. Options of protection – and the reasons of their dysfunctionality

In the previous chapter, I discussed five doctrinal elements of copyright law that are unfit to
embrace emergent works at the moment. Unsurprisingly, this view of mine is far from accepted
either in academia or in practice. Indeed, the summary report of AIPPI’s 2019 annual world
congress on “Copyright in artificially generated works” analysed the response of over 30 national
groups to AIPPI’s questionnaire. The report evidenced that significantly diverging views exist on
the protectability of AI-generated outputs. 154 It is worth the time to take a quick look at the
available options regarding protectability.

The default (and, in my opinion, the correct155) answer to the challenges of emergent works is
public domain. While some might argue that a public domain solution would lead to lost
incentives, we shall agree with Victor Palace, who noted that “the artificial intelligence industry is
likely to continue flourishing regardless of copyrights – as it has until now – because of the
incentives inherent to the artificial intelligence industry”.156 Others confirm that preserving the

150
Lauber-Rönsberg / Hetmank (2019) 573.
151
De Rouck (2019) 435.
152
Foucault (1984) 107.
153
Compare to note 103 supra.
154
Osha (2019). See further Bond (2019).
155
On the counterarguments to a public domain regime see Bonadio / McDonagh (2020) 132-133.
156
Palace (2019) 239.

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unprotected nature of AI-generated outputs prioritize the community’s interests over available
knowledge, which could ultimately enhance cultural development, 157 maybe also by fostering
cooperation between AI and humans.158 An alternative approach to the public domain concept
calls machine-enabled outputs “authorless”. Under this concept, if the designer of the machine
cannot claim sole authorship over the output/work; does not control the machine’s executional
process; and the designer and the user of the machine do not collaborate in real time (to create the
output in question), the output shall become “authorless”, and shall remain in the public domain.159

The “least intrusive” IP-oriented solution is the Japanese legislative proposal to introduce a
“non-human-created IP” regime to cover AI-generated outputs, according to which “[r]ather than
extending the copyright system, the policy body will look into a framework that handles works
created by AI in a manner similar to trademarks, protecting them from unauthorized use through
legislation prohibiting unfair competition”, and “the plan is to grant protection only to properties
that achieve a certain degree of popularity or otherwise hold market value, in light of AI-based
systems' ability to create an enormous body of work in a short time”.160

The idea of a brand new “disseminators’ right” – similarly to the one introduced by the EU
Copyright Term Directive related to the publisher’s right in the publication of previously
unpublished works – also appeared in the scientific literature.161 Others discussed the application
of the existing concepts of (the European Union’s) database makers’ sui generis regime162 or of the
neighbouring rights to emergent works.163 Others expressly favoured the introduction of a brand
new sui generis regime.164

A lot of authors paid close attention165 to the UK’s – as well as New Zealand’s, Ireland’s, Hong
Kong’s, South Africa’s and India’s similar – fiction to grant protection to “humans behind the
machine” regarding computer generated works.166

157
Compare to Yamamoto (2018) 10-15.; Kop (2020a) 24-29.
158
Palace (2019) 240.
159
Ginsburg / Budiardjo (2019) 453-454.
160
Segawa (2016). See further Ihalainen (2018) 727-728.; Kop (2020a) 7.
161
Ramalho (2017) 22.
162
Noto La Diega (2018) 114.
163
Dornis (2019) 1260-1264.
164
Bonadio / McDonagh (2020) 133-136.
165
See e.g. Ricketson (1991) 28-30.; Ramalho (2017) 17-18.; Maggiore (2018) 395-399.; Lauber-Rönsberg / Hetmank
(2019) 574-575.; Kop (2020a) 7.; Gervais (2020b) 55-56.; Lambert (2017) 13-14.; Guadamuz (2017) 175-177.;
Deltorn / Macrez (2018) 12-13.; Bonadio / McDonagh / Arvidsson (2018) 669-671.; Bonadio / McDonagh (2020)
119-124.
166
Compare to Copyright, Designs and Patents Act 1988, §9(3) [“[i] n the case of a literary, dramatic, musical or
artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements
necessary for the creation of the work are undertaken”] and §178 [“‘computer-generated’”, in relation to a work, means
that the work is generated by computer in circumstances such that there is no human author of the work”]. See further
Payen Components South Africa v. Bovic Gaskets (1996) 33 IPR 406 at 411, where the Supreme Court of South Africa
differentiated between “computer-generated” and “computer-assisted” works. On an a contrario endorsement of this
solution (that is the critique of the lack of similar norms and its consequences for the protectability of
computer-generated works in Australia) see McCutcheon (2013a) 915-969.; McCutcheon (2013b) 46-102.; Selvadurai
/ Matulionyte (2020) 538.

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Many scholars discussed whether the work-made-for-hire doctrine could be tailored to effectively
serve the interests of AI-employers;167 and so “the human behind the machine” can be rewarded
for all past and future outputs of any machine. Others discussed – and immediately declared
“undesirable or even impossible” – the reduction of the copyright term of protection.168 Some
solicited for a combined acknowledgement of authorship and ownership interests over emergent
works and a compulsory licensing of these outputs under Creative Commons licenses.169 Finally, a
lot of emphasis has been put on the discussion of authorship and ownership interests (without any
further restrictions) on programmers’, software owners’ and/or users’ side; 170 or even joint
authorship for humans and AI.171

Some of these proposals simply lack merit or run against the mere logic of copyright (and civil)
law; e.g. those related to the reduction of copyright term or the mandatory combination of
authorship and Creative Commons licensing. Other ideas are based on the possibility of stretching
existing concepts to cover the AI-industry. As database makers’ sui generis protection or
neighbouring rights regimes are based on significantly different policy purposes, and the exact
norms offer insufficient flexibility to cover emergent works either, 172 these proposals cannot
generally be endorsed.

Similarly, irrespective of its fanciness, the tailored work-made-for-hire (or, more properly,
“contents-generated-for-hire”) doctrine lacks any doctrinal/philosophical basis,173 and it fails to
meet all fundamental requirements of the (US) copyright law. First, such doctrine would
over-reward the possible rights holders by protecting the unlimited outputs produced by the
algorithm.174 Second, the prerequisites of “work”, “author” or “employee” (the last two would
require a “human worker”) are fully missing in an AI-environment. 175 Third, even under the
work-made-for-hire concept the original work (the rights upon which are transferred to
employees/commissioners) is (and must be) created by humans. The work-made-for-hire concept
simply cannot be separated from the originalist premise of human authorship. Finally, any
non-anthropocentric work-made-for-hire doctrine would clearly run against the spirit and the
obligations under the Berne Convention.176

At least on its surface, the most promising option, the concept of “computer generated works”, fails
to meet the high expectations either. First, while it leaves enough space for manoeuvre, it fails to
cover the widest range of AI-generated outputs.177 Second, this norm has triggered only a single

167
Compare to Hristov (2017) 445-447.; Yanisky-Ravid (2017) 707-718.
168
Lauber-Rönsberg / Hetmank (2019) 577.; Kop (2020a) 28.
169
Devarapalli (2018) 727-728.
170
Ralston (2005) 303-304.; Hristov (2017) 443-445.
171
Ralston (2005) 305-306.; Grubow (2018) 387-423.
172
Compare to Lauber-Rönsberg / Hetmank (2019) 575.; Rohner (2019) 81.; Kop (2020a) 8. Indeed, neighbouring
rights tend to be obsolete, “outdated and inherently unbalanced”. See Hugenholtz (2019) 1006-1011.
173
“Here, the risk is that a repeated use of the fiction that treats an AI output as human work made for hire will chip
away at the legal distinction between humans and AIs and ultimately undermine the ontological category of “author” as
a particular sort of relational, discursive social practice”. See Craig / Kerr (2019) 22.
174
Palace (2019) 236.
175
On these counter-arguments see e.g. Bridy (2012) 26-27.; Gervais (2020b) 46-48.; Bonadio / McDonagh (2020)
118-119.
176
Ricketson (1991) 28.
177
Noto La Diega (2018) 106.

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decision in a three decades long timespan in its birthplace, the UK,178 which perfectly mirrors its
limited success in real life. Third, recalling Lionel Bently and Brad Sherman’s opinion, “these
changes were useful insofar as they clarified that creations generated by a computer could be
classified as works, they said nothing about how the originality of such works was to be
determined”.179

New sui generis regimes might look practical in regulating an “emerging field” of IP, however,
they are not without faults either. On the one hand, due to their tailor-made nature, there might be a
significant disagreement over the acceptance of the exact norms on a multilateral level. On the
other hand, the database makers’ sui generis rights have also triggered serious criticism. E.g. Julia
Johnson correctly noted that „[i]n 2002, the World Intellectual Property Organization (WIPO)
published a study identifying five concerns with the sui generis approach to database protection:
that it could remove information from the public domain; create perpetual monopolies; harm the
free flow of information; stifle the development of software and information systems; and hamper
access to intellectual property in the developing world”.180 We shall be ready to address such
critical notes, too, in case countries introduce any sui generis regime for the benefit of AI-investors.

VII. Conclusion

Michel Foucault, in his discussion on what the concept of author might mean, quoted (and
criticized) Samuel Beckett’s famous question: “what does it matter who is speaking”?181 Foucault
himself argued that “it does not seem necessary that the author function remain constant in form,
complexity, and even in existence. I think that, as our society changes, at the very moment when it
is in the process of changing, the author function will disappear”.182 AI-positivists usually echo
this opinion and believe that “[i]f the copyright regime did not apply, such works could arguably
cause market failures in the absence of other (legal) mechanisms which ensure substantively
similar protection with appropriate public interest safeguards”.183 Or, as Toby Bond and Sarah
Blair questioned it, “[s]hould copyright only reward acts of truly human cognition or does it play a
more utilitarian role in society, encouraging the production and distribution of new works
irrespective of the manner in which they were created?”184

With due respect, this paper respectfully disagrees with the opinions noted above. I highlighted
those fundamental arguments that support an AI-pessimistic view, or, being more terminologically
pessimistic, the reasons why the current copyright regime (without being unnecessarily hacked)
cannot cover emergent works. Some visionary opinions might be quoted to support this position.
Sam Ricketson noted three decades ago that “[p]eople, rather than machines, have always been the
object of the [Berne] Convention, and, from the point of view of principle, doctrine and
practicality, this object should continue to be upheld”.185 Lev Grossman put it in his seminal article

178
Nova Productions Ltd. v. Mazooma Games Ltd. [2006] EWHC 24 (Ch). Compare to Dickenson / Morgan / Clark
(2017) 458-459.; Bond - Blair (2019) 423.
179
Bently / Sherman (2009) 107.
180
Johnson (2015) 256.
181
Foucault (1984) 101.
182
Ibid. at 119.
183
De Rouck (2019) 435.
184
Bond / Blair (2019) 423.
185
Ricketson (1991) 37. See further Ginsburg (2018) 131.

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on singularity, “[c]reating a work of art is one of those activities we reserve for humans and
humans only. It's an act of self-expression; you're not supposed to be able to do it if you don't have
a self”. 186 Indeed, “allocating the copyright to the artificial intelligence would result in
overwhelming and unnecessary legal uncertainty, and it would be contrary to the goal of the
Patent and Copyright Clause”.187 This might be true in Europe as well, even though we have no
equivalent to the IP Clause of the United States Constitution. Finally, and maybe most
importantly, Daniel Gervais convincingly summarized the ultimate goal of copyright law: “both
art in myriad forms and quality journalism have had and should continue to have a role in helping
humans understand and better their world. (…) [H]uman progress should serve as a normative
guidepost”.188

In sum, this paper takes the view that, on the one hand, copyright law is a fiction, a legal
manifestation of a complex (socio-cultural and economic), fluid and constantly changing set of
interests. Unless comprehensive and convincing social, cultural and economic (empirical)
evidences exist (or come into existence) to the opposite, the lack of justifications, sound policy
arguments and doctrinal clarity shall bar the introduction of any copyright protection for emergent
works.189 A rare example for empirical evidences is a paper by Kalin Hristov. His questionnaire –
analysing the response of fifty-seven AI scientists, tech policy experts and copyright scholars –
also concluded that

“half of participants believe that the US copyright system is not adequately prepared for a future influx of AI-produced
works. Respondents, however, fail to reach a resounding consensus on what changes should be implemented by the US
Copyright Office. The divided nature of expert opinion and the limited data available to researchers studying
intellectual property protection of AI works indicates the need for future research on the topic.” 190

As long as we are uncertain that the society in general, and human progress (especially culture) in
specific would benefit from an AI-copyright regime, rather than only a few stakeholders involved
in AI-research, we favour not to regulate at all. We shall agree with Axel Walz, who noted that
„[r]egulation, though, is not the only possible, and in many cases may not even be the best
approach to retain control over AI”. 191 Likewise, Daniel Schönberger took the view that the
“claims for legislative actions are not convincing”.192 I believe that the wisest decision would be to
follow a wait-and-see approach, and check whether licensing of AI-generated outputs (not as a
work, but as information or data) necessitates any intervention – either pro or contra the interests of
“creators” or AI-investors.

Admittedly, this summary opinion fails to answer an important question. Namely, will the
copyright protection of AI-generated outputs ever become a reality? We shall admit that it would
be unwise to regret or refuse this possibility – especially as copyright law is a fiction. Finding an
appropriate incentive193 or policy194 for, as well as the appropriate form of the protection and the

186
Grossman (2011).
187
Palace (2019) 234.
188
Gervais (2020b) 9.
189
Compare to Ginsburg / Budiardjo (2019) 455-456.; Vanherpe (2020) §23.
190
Hristov (2020) 13.
191
Walz (2017) 759.
192
Schönberger (2017) 158. See in greater details ibid. at p. 159-160.
193
Compare to Ballardini / He / Roos (2019) 130-134.
194
Manuel Desantes Real took the view that AI can be the flagship of the Fourth industrial revolution, where the

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detailed and balanced set of rules (maybe one of the many options introduced above or a mixture of
them) does not seem to be impossible at all. At the moment, however, the protectability of
emergent works is a less acute copyright question than whether the use of algorithms in data
analysis runs against existing copyrights (including database makers’ sui generis protection), or
whether AI (creators, investors or users) can rely on any limitation or exception.195 Indeed, it looks
a balance compromise to apply limitations or exceptions for the benefit of AI in order to support
effective machine learning activities, rather than envisaging any copyright protection for the
AI-generated outputs. Similarly, it is still an open question whether automated (algorithmic)
enforcement of copyright is desirable or acceptable,196 or, ultimately, whether it leads to modern
(digital) copyright censorship.197

We shall agree with James Grimmelmann that “[c]opyright law doesn’t recognize computer
programs as authors, and it shouldn’t. Some day it might make sense to, but if that day ever comes,
copyright will be the least of our concerns”. 198 The inferiority – or less timely nature – of
protection of emergent works is also visible from many policy reports of national and
intergovernmental AI-policies that tend to put greater emphasis on the intertwined notions of
trust199 and transparency in,200 as well as accountability of201 AI. E.g. copyright law played no
significant role in the European Union’s policy documents since the Civil Law Rules of Robotics
was finally abandoned. Both the European Strategy for AI of 2018, 202 and, most recently, the
White Paper 2020 have sidestepped this issue.203 Indeed, the White Paper 2020 laid down the
foundations of a human-centric and ethical, trustworthy regime of AI regulations that provide for
clear norms on the responsibility for as well as the guarantees of the safety of AI research and
outputs. The White Paper declared a key prerequisite of any such system of rules that outputs are
overseen by humans, and European values and other existing rules are respected. The U.S.
Government’s AI Initiative expressed its intent to secure the economic leadership of the United
States in the field of AI, on the one hand, and listed key policies and practices e.g. investing in AI
research and development; unleashing AI resources; removing barriers to AI innovation; training
an AI-ready workforce; promoting an international environment supportive of American AI
innovation; and embracing trustworthy AI for government services and missions.204 Neither the

available approaches to AI and IP might range from stagnation to adaptation, disruption or reinvention. Under this
opinion, AI-pessimism is not a real approach. See Desantes Real (2020) 3-27.
195
Sobel (2017) 45-97.; Schönberger (2018) 160-172.; Binctin (2019) 5-32.; Rosati (2019) 198-217.; Chiou (2019)
401-411.; Kop (2020b) 9-11.; Lemley / Casey (2020); Bonadio / McDonagh (2020) 126-131.; Meys (2020) 457-473.;
Selvadurai / Matulionyte (2020) 539-542.; Flynn / Geiger / Quintais / Margoni / Sag / Guibault / Carroll (2020)
393-398.
196
Compare to Elkin-Koren (2017) 1082-1100.; Grosse Ruse-Khan (2020) 16.
197
Senftleben (2020) 339-340.
198
Grimmelmann (2016) 403.
199
On trust in AI see e.g. Rohner (2019) 78.; Kop (2020a) 29-31.; McLeod Blythe (2020) 119-125. The reliability of
AI algorithms is a crucial prerequisite of their widespread use. As long as they generate a significant amount of false
positives in e.g. criminal investigations, they shall only be applied with cautions. As the New York Times reported,
“[i]n 2019, algorithms from both companies were included in a federal study of over 100 facial recognition systems
that found they were biased, falsely identifying African-American and Asian faces 10 times to 100 times more than
Caucasian faces”. See: Hill (2020).
200
On transparency in AI see e.g. Larsson / Heintz (2019) 1-16.
201
On accountability of AI see e.g. Bandy / Diakopoulos (2020) 36-47.; Nahmias / Perel (2020) 1-54.
202
Artificial Intelligence for Europe, COM(2018) 237 final. Compare to Opitz (2018) 28-30.
203
White Paper on Artificial Intelligence, COM(2020) 65 final (2020).
204
American Artificial Intelligence Initiative (2020).

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European, nor the American goals demand any strong IPR regime for the benefit of AI-investors or
algorithms themselves.205

Nevertheless, legislative proposals might be on the horizon soon. The WIPO has launched a public
consultation on AI and IP. As a part of that, WIPO has prepared a draft and a revised Issues Paper
on IP Policy and AI, and has also completed two rounds of “conversations”,206 while planning the
third round of those conversations for November 2020.207 Indeed, it might be the wisest option, if
WIPO takes the lead in solving the necessarily global tensions surrounding the IP/copyright
protection of AI-generated outputs.

The European Parliament, unlike the European Commission, seems to be more receptive to the idea
of AI-copyright as well. On the one hand, the “Draft Report on intellectual property rights for the
development of artificial intelligence technologies”, published on April 24, 2020, recommended to
side-line the hurdles posed by originality (and the personal touch) by relying on “the creative result
rather than the creative process”.208 On the other hand, the report also intended to focus on the
“human behind the machine”, and proposed that

“an assessment should be undertaken of the advisability of granting copyright to such a ‘creative work’ to the natural
person who prepares and publishes it lawfully, provided that the designer(s) of the underlying technology has/have not
opposed such use. This reasoning would be in line with the European system of protection of ‘works data’; such data
may be exploited as part of the data used to train AI technologies which can then generate secondary creations,
including for commercial purposes, provided that the right to such use has not been expressly reserved by their
209
rightholders”.

In sum, the European Parliament’s (current) position opens the door for some kind of
AI-positivistic legislation. 210 Whether such system would truly favour human culture and the
copyright ecosystem in general, is still unclear. We shall therefore keep a watchful eye on the
proposed assessment of the European Parliament.

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