The“transformative use”of AI companies: between creative freedom and intellectual property rights

Abstract

In a context of increasing application of generative artificial intelligence (AI) systems, understood as those foundational models of artificial intelligence intended to generate, with different levels of autonomy, content such as complex text, images or audio, the analysis of the so-called “transformative use” of artificial intelligence companies is faced. The focus is on analysing North American jurisprudence on “fair use” from the obligatory balance between creative freedom and the protection of intellectual property (copyright), with special reference to the Warhol case; as well as the commitment of the Regulation on Artificial Intelligence of the European Union (2023 text) to demand, in these cases, transparent information on the data (and its owners) used for its training.