Copyright on AI-Generated Work in France: Current Legal Perspective

Searching and sorting information, drafting letters, creating content, translating texts, etc, are a few examples of what artificial intelligence (AI) helps us do every day, to such an extent that it is now an integral part of our daily lives. AI is everywhere and raises many questions, as well as possibly giving rise to a fear of technology that cannot be controlled. While some see in AI an opportunity to develop skills and efficiency, others criticise its inaccuracy and the dangers it may cause, especially regarding AI-generated work.

While the CEO of ChatGPT says that OpenAi has generated USD1.3 billion, France intents to invest EUR2.22 billion in AI from 2021 to 2025. This would inevitably lead to a significant number of AI-developed creations, questioning the applicable legal aspects in terms of intellectual property. Who would be the owner of the copyright on AI-generated work?

On 2 February 2024, representatives of the 27 EU member states approved the long-awaited AI Act. law. The Council and Parliament reached an agreement on this law on 9 December 2023. This new law, aiming to regulate the use and development of AI, is not yet applicable and should be voted by the EU Parliament before being published in the EU’s Official Journal to enter into force. Once promulgated, it will be the first law worldwide to regulate AI. Most notably, it aims to ensure that AI respects fundamental rights and guarantees legal certainty to facilitate investment and innovation in AI.

The AI Act gives a definition of the AI System: “’artificial intelligence system’ (AI system) means software that is developed with one or more of the techniques and approaches listed in Annex I and can, for a given set of human-defined objectives, generate outputs such as content, predictions, recommendations, or decisions influencing the environments they interact with”.

Apart from the EU AI Act, France is also enacting laws to regulate the use of AI. For instance, a law proposal No 1630 was submitted on 12 September 2023, to provide a copyright framework for AI. Those provisions aim to protect authors by regulating exploitation of AI-generated work to collect compensation pertaining such work. 

In its first Article, this law proposal provides that: “The integration by artificial intelligence software of works of the mind protected by copyright in its system, and a fortiori their exploitation, is subject to the general provisions of the present code [CPI] and therefore to the authorization of the authors or rightful claimants”. Article 2 specifies that the ownership of the AI-generated work “without direct human intervention” belongs to“the authors or assignees of the works that made it possible to conceive the said artificial work”. However, criteria for what “direct human intervention” encompasses are not clearly mentioned and there is room left for interpretation. Compensation and collective rights management will be operated by authors’ societies or other collective management organisations.

In order to ensure transparency towards the public, Article 3 sets down the obligation to add the wording “AI-generated work” and to specify the names of the authors that led to the creation of such work. However, names can be difficult to collect, and no sanction is specified in this new law, thereby questioning the effectiveness of such obligation. Social networks such as TikTok, Facebook and Instagram already allow users to label their AI-generated content.

Considering the diversity of sources that can lead to creations, it can be difficult to identify authors. In the circumstance where the work is generated by an AI device from work whose origin cannot be determined, Article 4 provides that a tax intended to enhance the value of a creation is introduced for the benefit of the organisation in charge of collective management.

However, some provisions of this law would be difficult to apply in practice. Indeed, identifying all the sources and therefore the names of the contributors could be challenging in case of successive modifications and alterations. This law proposal would pose more questions than it would solve, and new laws are to be expected to be enacted.

As AI is constantly evolving, a Generative Artificial Intelligence Committee was also created in France, in September 2023, to establish concrete proposals within six months to adapt the government’s strategy on AI.

Elsewhere, the US seems to refuse copyright on works of art created by AI without any human contribution, (United States District Court for the District of Columbia, 18 August 2023, No 22-1564, Stephen Thaler c/ Shira Perlmutter), the Beijing Internet Court has accepted copyright on an AI-generated image of a young woman, considering that the work was original, as the person who used the AI actively participated in the creation, thereby reflecting the author’s personality (Li Yunkai v Liu Yuanchun).

For now though, it appears that the same conditions for copyrighted work created without an AI system apply: the work must be original and reflect the author’s personality. The copyright protection will therefore depend on the degree of human intervention. As it stands, it is no different from the similar case law rendered by courts on computer-generated works.