We must not lose sight of the essential: if AI is capable of generating artistic content at all, it is only thanks to human creativity. AI needs to be trained on existing works, those created by the genius of men and women … without which nothing is possible. In this context, copyright will play its customary role in remunerating those whose work is the source of the success of AI. SACEM, our French sister society, recently announced that it favoured “virtuous, transparent and fair” AI and intended to “ensure fair remuneration for the authors, composers and music publishers it represents”. Here, copyright is clearly at the service of fairness.
What if IA was an author?
But the AI debate is also about protecting the output produced by AI. Where AI is used merely as a creative tool and the content generated depends on human artistic decision-making, the consensus is that such content is covered by copyright. On the other hand, content produced purely by generative AI does not have the benefit of copyright protection: firstly, because the latter protects authors, defined as the natural persons who create a work; and secondly, because the subject of copyright (namely the literary or artistic work) must be a creation of the mind, i.e. an expression of human thought. And, until further notice, machines have no minds of their own … Since AI output can be used for free, it follows that human works are liable to be at a disadvantage on the market: they are more expensive and more complicated to use because the relevant licences must be obtained.
We must be alert to this risk and to the fact that works created by the human mind are exposed to unfair competition from content generated by artificial intelligence. But what solutions are there? There is no unanimous support for the idea of protecting such content by copyright. One could legitimately argue that only human beings qualify as authors and are entitled to the corresponding rights. The question is whether AI-generated artistic content should be protected under other laws (unfair competition act, neighbouring rights, etc.). Some legal experts are of the opinion that, under certain conditions, AI-generated output is already protected by the rules against unfair competition.
Certain countries, like the UK for example, have decided to use copyright law to protect computer-generated content. That is not necessarily wrong. Protecting authors also means ensuring that AI-generated output is not commercially more attractive than the works created by the human mind. Even in this view, copyright remains a tool at the service of human creativity.
Should we legislate?
Sooner or later Switzerland will also have to decide whether to legislate on these issues. Not least because in future distinguishing clearly between works created by a human being with AI support (protected by copyright) and works generated solely by AI (not protected by copyright or protected by other laws) is likely to become ever more difficult. Technological progress continues to challenge our field. And that is precisely what makes it so fascinating!