Generative AI: The Emerging Intellectual Property Challenges in France

Generative artificial intelligence (AI) is hotly debated and there are many questions about its legal implications, particularly with regard to intellectual property (IP) law. This article will focus on whether the use of IP-protected content during AI’s development process can be classified as an infringement, and if AI-generated work could potentially breach IP rights.

AI functions by analysing a dataset, a process known as “machine learning”. During this training process, IP-related issues may arise when AI uses IP-protected content without the consent of the IP right owner. This lack of consent may infringe the owner’s exclusive rights. However, is IP infringement automatic or could the AI training fall within the scope of legal exceptions? The answer could vary depending on the type of IP rights used in the training process.

If the content is protected by copyright (droit d’auteur), the “data mining” exception would likely apply. This exception was introduced by the European Union Directive 2019/790 dated 17 April 2019 implemented in France in Articles L. 122-5.10 and L. 122-5-3 of the French IP code (IPC). These articles stipulate that, once a copyrighted work is disclosed, and as long as it was accessed legally, digital copies or reproductions may be made for the purpose of text and data searches, regardless of the purpose of the search, unless the author has explicitly objected to this.

This data mining exception seems applicable to the AI training stage. A right holder who does not want their work to be used in data mining processes must therefore explicitly object to such use when publishing their work. For instance, they could stipulate this in the terms of use of the website where the content is posted. Technical solutions, such as applying a “cloaking” layer to digital work preventing AI from capturing elements of it, may also be available. However, the challenge lies in proving that the AI used the protected work during the machine learning process despite the right holder’s objection. This is critical and may vary depending on how the training and creation process work.

Assuming that an AI tool installed on a user’s device is trained offline by a user using legally obtained protected works, such training could also potentially fall within the scope of the private copy exception under French law (Article L. 122-5.2 of the French IPC).

Although no legal action has yet been brought before French Courts for IP infringement by an AI, this matter is gaining traction in other countries. For example, three American artists allege that Stability AI, DeviantArt and Midjourney have infringed the rights of “millions of artists” by training their AI on five billion images scraped from the web “without the consent of the original artists”. The decisions in these different cases are eagerly anticipated.

If trademark rights protect the content, it must be taken into account that there are no similar exceptions as for copyright, and there may be trademark infringement if a trademark is reproduced or imitated. The main question would therefore be whether such a use is used as a trademark; ie, in the course of trade, which would need to be assessed on a case-by-case basis.

Provided certain legal conditions are met, AI-generated content could infringe copyright, trademark rights, and other IP. This then raises questions regarding the assignment of liabilities. Would the company developing the AI tool be held liable, or would it be the user of the AI tool? Could there be joint liability? These questions remain open for discussion.

Copyright protection would raise the most important issues. In France, copyright protection is granted to works deemed “original”, which is defined as a work that reflects the “author’s personality”. Traditionally, if there is no human personality involved in the creative process French copyright (droit d’auteur) does not apply, thereby nullifying potential action for copyright infringement.

However, direct authorial execution is not mandatory under French law. French Courts have recognised copyright protection for works that are the result of instructions given by the author, which reflect the author's personality, even if the work was computer-generated.

An AI-generated work may not qualify for copyright protection under French law, as the general instructions provided by the user could be viewed as mere suggestions rather than binding instructions, especially if the AI tool maintains control over the decisions made in the creative process, without any personal input from the author. That said, if the user modifies the AI-generated work to such an extent that the final output bears the imprint of the user’s personality, it could be copyrighted. The user, of course, would need to demonstrate their creative input and the originality of the work.

Interestingly, the United States Copyright Office, in its “Zarya of the Dawn” decision of 23 February 2023, rejected copyright protection for a comic book created solely using Midjourney. The Copyright Office held that the generated works were merely guided by machine learning, and that the user had no creative control or any ability to predict the generated result.

As AI-generated work may not be protected by copyright, the French Superior Council for Literary and Artistic Property (Conseil Supérieur de la Propriété Littéraire et Artistique) proposed in its 2020 report four options to protect AI-generated creations:

Any legal initiative in this regard must align with the forthcoming European AI Act and the AI Liability Directive, which are currently under discussion.