Copyright protects a “work of the mind”, a concept that is not expressly defined in legislation. Protection arises once an idea is expressed in a perceptible form and the resulting work meets the requirement of originality. The assessment of originality falls within the sovereign discretion of the trial courts.
According to French and European case law, originality is understood as the imprint of the author’s personality, reflecting the author’s free and creative choices in the creation of the work, or the author’s intellectual contribution, depending on the category of work concerned. In this context, works generated wholly or partly by artificial intelligence systems raise significant questions as to whether they can benefit from copyright protection.
Granting copyright protection to works generated by AI would raise practical concerns regarding ownership. It would be difficult to determine who should be considered the author of such works: the developer of the AI system or the user who operates it. These uncertainties also extend to the exercise of rights and the attribution of responsibility in cases of infringement or misuse.
To date, the Court of Justice of the European Union (CJEU) has not yet adopted a definitive position on the copyright status of AI-generated works, although its case law on the protection of photographs notably suggests that copyright protection is closely linked to demonstrable human creativity (CJEU, Third Chamber, 1 December 2011, Case C-145/10, Eva-Maria Painer).
At the national level, however, a few developments can already be observed. In particular, a municipal court in Czechia refused to recognize copyright protection of an AI-generated image and held that merely providing a prompt to generate an image does not, as such, confer authorship (Municipal Court in Czechia, 11 October 2023, Case C 13/2023-16).
From this perspective, works generated entirely by artificial intelligence should, in principle, fall outside the scope of copyright protection. By contrast, the status of works partially generated with the assistance of AI remains open to debate.
U.S. jurisprudence also provides a useful comparative reference. In Thaler v. U.S. Copyright Office (2023), the court confirmed that works created entirely by artificial intelligence are not eligible for copyright protection, emphasizing that copyright requires sufficient human contribution. While the precise threshold of human contribution remains uncertain, the decision suggests that drafting a prompt is unlikely to satisfy this requirement.
Pending further clarification of European standards, it may be helpful to document the creative process carefully by distinguishing what is entirely human-created, what is AI-assisted, and what is fully AI-generated, as well as identifying where originality resides. The more clearly one can demonstrate creative choices reflecting the author’s personality, the stronger the claim for copyright protection.
If you are facing uncertainty as to how to secure protection for works created with the assistance of artificial intelligence, our team will be glad to assist you.
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