In recent years, models of so-called generative artificial intelligence (“AI“), which can credibly replicate human creativity in many areas, have increasingly come to the forefront of public interest. The technological boom in this respect is truly breakneck. On the basis of a brief text input (“prompts”), AI is able to create not only a variety of written texts, but also images, animations, compose music, and the biggest novelty is a video generator in which it is possible to create, for example, a short animated film, but also, for example, photorealistic shots of nature (which does not actually exist).
Legal regulation and development of copyright in the context of AI
As is usually the case, technological developments are faster than the development of legislation, which must reflect the changes in question. Given that much of the use of AI by the general public relates to creative activity, a number of AI-related issues arise in the field of copyright law.
The question of authorship and copyright
According to Czech copyright law, an author’s work is the result of the author’s creative activity expressed in any objectively perceivable form (Section 2(1) of Act No. 121/2000 Coll. on Copyright, “CA“). According to Section 5 of the Copyright Act, the author is only the natural person who created the work. Although artificial intelligence can behave like a human being in many respects, it is undoubtedly not a natural person, and works created purely by artificial intelligence are therefore neither a work of authorship nor subject to copyright. This conclusion was made by the Municipal Court in Prague in decision No. 10 C 13/2023- 16 of 11 October 2023, which was the first in the Czech Republic to address the issue of authorship of an artistic work (specifically a graphic image) created by a generative AI model.
The role of the input prompt and copyright protection
However, the above conclusion raises some further question marks. No work of art produced by artificial intelligence is created without any human activity; there is always a specific assignment (input prompt) in the background that is the result of human activity. Can this input prompt itself be subject to copyright protection? It depends on whether the characteristics of a work of authorship are fulfilled under the AoA. In the above-mentioned case considered by the Municipal Court in Prague, the court assessed that in the case of the input prompt there, it is possible to speak of a subject of a work or possibly an idea, which, however, are not in themselves a work of authorship under Section 2(6) of the Copyright Act. However, this conclusion is undoubtedly not applicable in all cases. If, for example, the input prompt is not a matter of one sentence, but involves several hundred programming parameters that are carefully selected and modified to achieve the desired result, it may be a unique creative activity expressed in an objectively perceptible form. In such a case, the “commissioning party” should therefore be entitled to at least a share in the authorship of the resulting work of art (and thus copyright protection).
The challenges and future of copyright in the context of AI
The copyright aspects of using generative AI models are still in their infancy. On the other hand, a whole other area is copyright infringement by AI, which (given its free access to the internet) often uses copyright works for further creation without having the appropriate licences. The development of legislation in this area will therefore certainly be interesting to follow.
This article is for informational purposes only and does not constitute legal advice or guidance for any particular case.
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