Blog by Jared  L. Curcio, Junior Associate

Technology will never take the place of human beings, right? Computers are soulless, and they don’t have the ability to think or adapt to the various humane experiences and emotions that you and I experience every single day. As world-renowned artist, Pablo Picasso, had once put it as he addressed the creative capabilities that computers display, “They are useless. They can only give you answers,”^[1] and thus, the need for people in their various respects will continue to be irreplaceable.^[2] Though, as global society continues to experience a wave of rapid technological advancement, particularly in the space of artificial intelligence, a more realistic contrary to these dated presuppositions are seeming to prove this line of thought wrong. Very wrong. In consequence, the legal jurisdictions around the globe must now closely analyze their current copyright frameworks to adapt to these more human-like advancements.

Generative artificial intelligence [GenAI] refers to a category of artificial intelligence techniques and models that are designed to generate new and original content, including text, imagery, audio, and other data, giving rise to the numerous questions to the copyright system and the law. ^[3] GenAI operates on machine-learning processes which use neutral networks involving the extrapolation of patterns from large amounts of data, leading to the production of a comprehensive output. ^[4] Outputs from these models can be indistinguishable from human generated content, and because of the voluminous consumption of human-generated data used to train the algorithms which it operates, the models can appear “creative” when outputting product.^[5]  This method of data consumption is referred to as “mining.” This significant level of creativity resulted from the model’s output “butts-heads” with copyright protections that are  required in most jurisdictions around the world. The common scheme among copyright law that leads to its protections is the requirement that the work product be “original” or  “humanly creative.”^[6] The question then becomes whether there is a significant human involvement in the output of GenAI, which would meet the requirement to fall under such protections.^[7] Putting this question in other words, is society willing to accept that computers can produce output that meets the threshold of an “original work” created by a human being.

Among the many global efforts in the continued push for an increase in AI regulation, Europe is one of the major players taking on a leading role.^[8] The European Union’s Artificial Intelligence Act, expected to take the global stage in 2026, provides a legal framework for the responsible use of AI.^[9] Though, the main text of the law does not specifically speak to copyright issues, it does repeatedly make specific mention to the topic within the text’s recitals.^[10] Recital 105 of the Act reflects the data mining exceptions to copyright, provided by the 2019 EU Directive^[11] – “allowing reproductions and extractions of works or other subject matter, for the purpose of text and data mining, under certain conditions”^[12] – ensuring that AI developers may partake in mining activities while maintaining respect for copyright law. Additionally, recital 107 of the Act stipulates that providers of GenAI models will be required to provide a detailed summary of the content used for the training, in a comprehensive way that will allow copyright or parties with legitimate interests to exercise and enforce their rights under EU law^[13] – “to facilitate parties with legitimate interests, including copyright holders, to exercise and enforce their rights under Union law, for example by listing the main data collections or sets that went into training the model, such as large private or public databases or data archives, and by providing a narrative explanation about other data sources used”^[14] – ensuring transparency and allowing copyright holders with legitimate interest to exercise and enforce their rights under EU law.

This is just one small step in addressing the vast impact that GenAI will have on global copyright frameworks. The European Union has stayed committed to balancing innovation in AI development with the protection of copyright laws, and their continued efforts provide a legal framework to address the interplay between technological advancement and the safeguarding of creative works.

 

 

^[1] Erik Brynjolfsson & Andrew McAfee, The Business of Artificial Intelligence, Harv. Bus. Rev., Jul. 2017.

^[2] See Id.

^[3] EUCRIM, The Protection of the Financial Interests in a Changing Context (Issue 4/2023), at 327 https://eucrim.eu/media/issue/pdf/eucrim_issue_2023-04.pdf.

^[4] Generative Artificial Intelligence: The Impact on Intellectual Property Crimes, Eurojust, Nov. 2023, at 4 [hereinafter Impact on Intellectual Property Crimes].

^[5] What is Generative AI?, McKinsey & Company (Apr. 2, 2024), https://www.mckinsey.com/featured-insights/mckinsey-explainers/what-is-generative-ai

^[6] See Impact on Intellectual Property Crimes, supra note 4, at 6.

^[7] Id.

^[8] Eur. Comm’n, Shaping Europe’s Digital Economy: AI Act (last visited Oct. 8, 2024), https://digital-strategy.ec.europa.eu/en/policies/regulatory-framework-ai.

^[9] Id.

^[10] Artificial Intelligence and Copyright: Use of Generative AI Tools to Develop New Content, European Innovation Council and SMEs Executive Agency (July 16, 2024) [hereinafter AI and Copyright], https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/artificial-intelligence-and-copyright-use-generative-ai-tools-develop-new-content-2024-07-16-0_en.

^[11] Id.

^[12] European Parliament legislative resolution of 13 March 2024 the Proposal for a Regulation and of the Council on Laying Down Harmonised Rules on Artificial Intelligence and Amending Certain Union Legislative Acts,  2024/138, 2024 [hereinafter EU AI Act].

^[13] AI and Copyright, supra note 10.

^[14] EU AI Act, supra note 12.