Statistical Mimics: Authorship and Generative Artificial Intelligence. A comparative vision between American and European Union Copyright Laws.

Abstract

This paper addresses the question of whether generative AI can create copyrightable works by making a comparative analysis between European Union law and U.S. copyright law. First, it is argued that for copyright law it does not seem possible for an entity other than a human being to be the copyright holder, thus ruling out the possibility of generative AI being considered a copyright holder. It is established that in US copyright the door it may be possible to register part of a work made using generative AI, and that in the EU this door remains open and pending evolution, although European jurisprudence already gives some guidelines. Afterwards, this paper explores possible infringement of exploitation rights in the different parts of the training process of generative AI models and in the activities that lead to the generation of content that is like intellectual works. It is concluded that in US law there is a gap in knowledge as to whether fair use would cover these types of activities. In European Law, although there are exceptions such as those in Directive 2001/29, it is not at all clear whether this will be sufficient to cover these activities, or whether the authorization of the rights owner will be necessary. If the latter is true and judging by the wave of lawsuits that have followed against companies and institutions that have made generative AI tools publicly available, it is possible that licensing negotiation may take a central role in the AI industry, with the negative consequences that this may bring for the advancement of science and for the public domain.