Should Artificial Intelligence Creations Receive Greater Legal Protection?

Sui Generis or Public Domain? The Future of AI-Created Works

Artificial intelligence (AI) has reached a stage where it can produce art and literature that rivals human creativity.

From paintings that mirror the brushstrokes of masters like Rembrandt to novels that almost clinch prestigious literary awards, AI is redefining what it means to be creative.

But as machine-made art continues to blur the lines between human and artificial creativity, one pressing question emerges: Who, if anyone, should own the rights to these works?

The Missing Copyright for AI Creations

Currently, copyright laws in many jurisdictions do not extend to works created by AI. In places like continental Europe, copyright protection is rooted in the notion of human authorship.

For example, Germany and France both define copyrightable work as a "personal spiritual creation," reflecting an anthropocentric view.

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Similarly, the UK’s Copyright, Designs, and Patents Act states that authorship belongs to the individual who creates the work, not the machine.

This exclusion leaves AI-generated works in a legal grey area. The logic behind this omission is straightforward: robots lack consciousness and cannot imbue their creations with personal meaning.

Without this human touch, the moral rights that underpin much of copyright law are deemed irrelevant to machine-authored works. But does this rationale still hold in an era where AI-generated content is nearly indistinguishable from human-made creations?

The Financial Perspective: Who Gets Paid?

Beyond moral rights, copyright also exists to reward creators financially. Historically, this stems from the idea that those who put effort and skill into creating something deserve the right to profit from their work.

But when a robot generates a painting or a novel, who deserves that financial reward? Is it the programmer who designed the algorithms, the trainer who fed the data, or the user who operates the machine?

Determining ownership among these contributors is not straightforward. The programmer might argue that their algorithms are the backbone of the AI’s creative ability. The trainer could claim that their curated data shaped the AI’s output.

And the user, as the one who initiated the process, might feel entitled to the end product. This tangled web of contributions makes it difficult to assign clear financial rights, leading some to suggest leaving AI works unprotected in the public domain.

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Free Access and the Public Domain

One argument for keeping AI-generated works unprotected is that the public domain could benefit from free access to these creations.

If no one holds exclusive rights, these works could be freely shared and used, fostering cultural enrichment and innovation. However, this assumes that creators of AI content would willingly disseminate their works without any financial incentive.

Without the promise of profit, there’s a risk that these creations could remain locked away, depriving the public of their potential value. Some propose granting rights to the individuals or organisations who distribute AI-created works, incentivising them to make the content accessible.

But this idea raises its own questions. Should distributors be granted exclusive rights simply for making works available? Would such an approach exclude the public domain from benefiting at all?

The Risk of Devaluing Human Creativity

Critics of free access to AI-generated works argue that it could undermine the value of human-authored creations. Why pay for a license to use a human-made artwork when a comparable AI-generated piece is freely available?

This could create an environment where human creators struggle to compete, potentially discouraging traditional forms of artistic expression.

However, others argue that AI cannot truly replicate the deeper meaning often found in human creations. While robots can mimic styles and techniques, they lack the self-awareness and emotional depth that drive much of human creativity.

This difference, some believe, ensures that human-authored works will continue to hold unique value, even in a world filled with AI-generated content.

Incentives for AI Development

Another angle to consider is how copyright—or the lack thereof—affects the development of AI itself. If AI-generated works remain unprotected, it could discourage investment in creative AI technologies.

Developers, trainers, and users may hesitate to pour resources into these systems if there’s no clear path to financial reward.

One potential solution is the creation of a new, sui generis right specifically for AI works. This could provide the necessary incentives while addressing the unique nature of machine-made creations.

However, assigning such a right raises its own challenges. Who would hold this new form of ownership? And how would it account for the collaborative nature of AI development?