AI & Copyright: An Analysis

AI & copyright is a new and important topic that worries many people. It is important to understand this issue so that neither providers nor users of AI run afoul of the law or copyright holders. AI is not a new invention, but it is developing very quickly. In recent years, scientists have put a lot of work into developing AI algorithms. AI is based on the idea that machines can learn and thus make smarter decisions than humans. The hope is that AI can help us make better decisions and make the world a better place. But what does AI mean exactly? And what does it have to do with copyright?

Copyright law protects works of authors and artists from unlawful use or distribution. There are different types of copyright, but essentially it’s about someone retaining the rights to their work and only allowing them to use it. Copyright is therefore a protective law for authors and artists. However, it should not be forgotten that both German copyright law and many other laws around the world, through differentiated regulations, want to offer artists in particular the secure opportunity to earn money with their own creativity and, above all, their own achievements. Thus, if a machine uses or exploits copyrighted material, it is acting unlawfully. So here it is a matter of finding regulations or checking whether the regulations are being complied with: Both by the AI providers and by the providers’ respective customers.

Introduction: What is AI & Copyright and why is it important?

Artificial intelligence (AI) is a technology that is rapidly evolving and opening up new ways to create and leverage innovation. Recently, however, it has raised questions about copyright and the legal framework.

One of the biggest problems regarding AI & copyright is the fact that it is difficult to determine the creator or author of AI products. In many cases, AI is used to generate digital works or inventions that do not necessarily originate from a human. Therefore, it can be difficult to determine who owns the copyright to such products, because legally speaking, a machine cannot hold a copyright, nor can it enter into a contract and thus exercise exploitation rights. This can if only the provider of the software, the programmer of the AI or other persons. Another issue is whether the AI developer can actually be considered the author or whether the copyright lies with the person who wrote the algorithm for the AI. However, there are some approaches to solving these problems. For example, a copyright system could be implemented that grants rights to both the human and the algorithm. In this case, the developer of the algorithm must be acknowledged as the author of the work. It must be noted, however, that such systems are not yet fully developed and still require further research; and, of course, multiple legal clarifications.

There are also other challenges related to AI & copyright: how to prevent AI products from being used without authorization? How can you ensure that data protection regulations are complied with? How should you deal with potentially illegal material? In order to answer these questions and at the same time ensure the protection of the originator, rules must be developed that are binding for all parties involved. Therefore, it is necessary to learn more about AI & copyright and explore different measures to solve these problems. With the right strategy, companies and developers can protect their rights while implementing new innovative ideas.

Legal basis for AI-driven content

A critical analysis of copyright law is essential for assessing the legal position of AI-driven content. Copyright is a supranational right that is enshrined in many countries. In Germany, it is based on Articles 5 to 13 of the Copyright Act (UrhG) and, of course, on all other paragraphs and other laws. Copyright protects the intellectual property of works of literature, art and science. It assures the author of a work the exclusive right to reproduce, distribute and publicly reproduce it. Copyright protection extends to all original works that originate from the personal intellectual creation of the author. These include literary, musical, photographic, and audiovisual works. Computer programs and databases are also subject to copyright protection, albeit in a limited way. To be considered copyrighted, a work must have an individual design. It must therefore have its own personal character and not be completely subject to will or chance. Under certain circumstances, this coincidence factor can be very relevant in the legal questions decided here.

In addition to the legislature, the case law of the Federal Court of Justice (BGH) also has a decisive role in the interpretation and application of copyright law in Germany. For example, in its landmark ruling of September 12, 2002 (Ref.: I ZR 304/99), the German Federal Court of Justice (BGH) stated that a work is protected by copyright even if it deviates only slightly from other works. Even if a work is merely composed of pre-existing elements, it may be considered a copyrighted work. With regard to AI-driven content, it should be noted that only original works are protected under German copyright law. AI-controlled content can therefore only be protected by copyright if it is an original work within the meaning of the UrhG. However, it is unclear whether AI-driven content meets these requirements.

Another aspect of German copyright law is the so-called level of creation. According to this, a work is only protected by copyright if it has the required level of creation. However, the level of creation is not an absolutely fixed quantity, but depends on various factors, such as the medium of the work or the expectations of the viewers. With regard to AI-driven content, it is still unclear what level of creation is required.

Artificial intelligence and copyright

In recent years, Artificial Intelligence has developed rapidly and has become a significant part of our everyday lives. AI systems are now included in many of our devices and apps to help us in our daily work. This development will continue and AI will become more and more part of our lives. At the same time, this development also poses challenges for existing copyright law, as it has not yet been sufficiently adapted to these new challenges. The existing copyright law is based on the classical producer-consumer model, according to which the producer is the one who produces the work and the consumer is the one who consumes it. However, this model no longer fits well with the new challenges posed by the development of AI. Because in many cases it is becoming increasingly difficult to determine which parts of a work were created by humans and which by machines. Moreover, the existing copyright law is based on the concept of the individual creator, according to which each work was created by a single person or group. But what if a work is no longer created by an individual or group, but by an AI system? This poses major challenges to the current rules of copyright law, and it urgently needs to be adapted to accommodate this new phenomenon. However, it is still unclear what rules should ultimately apply. Some experts argue that AI systems should be considered producers and thus must be viewed as legal entities in their own right. Others, however, argue for a different solution, saying that AI systems should be considered users and not legal entities in their own right. So it’s still in the asterisks what rules should ultimately apply and whether they can even be reconciled with existing copyright law.

AI providers and their responsibilities under copyright law

As mentioned earlier, AI providers have an important role to play in the creation of copyrighted works. First, it is important to note that AI providers generally cannot be held responsible for their customers’ copyright infringements. At least if the corresponding T&Cs have been created correctly 😉 This is usually regulated by a so-called disclaimer in the terms of use of the provider.

However, this does not mean that providers have no duties or responsibilities. The duties and responsibilities of AI providers are essentially the same as those of other businesses that make or distribute copyrighted works. Key responsibilities include ensuring that customers are made aware of their rights and responsibilities and that they take reasonable steps to ensure that they are respected. Another important aspect is the licensed use of the software. Most AI vendors offer their customers a paid license that allows them to use the software for a specific period of time or for a specific project. However, it is important to note that this license only applies to the use of the software itself and usually not to the use of the created works. A separate license must often be purchased to use the created works, either from the AI provider or from the creator of the work itself.

Technical solutions for securing copyrighted works in the context of artificial intelligence

It is obvious that copyright infringement related to artificial intelligence is a growing problem. Therefore, it is important to develop technical solutions to secure and protect copyrighted works. One way to reduce copyright infringement is to implement a system called digital rights management (DRM). This system restricts access and use of digital content. It uses various technologies such as watermarking and encryption to control the use of copyrighted works. It also allows authors to track their works and determine when they are reproduced or modified. Another way of securing copyrighted works in the context of artificial intelligence is blockchain technology. This technology allows users to transfer digital content over a decentralized network in a secure manner. Blockchain technology is a peer-to-peer network in which each participant can store and verify data. This reduces the risk of unauthorized modification of content. Another solution for protecting copyrighted works in the context of AI is to implement a tracking system. This system allows creators to collect and store information about their works, as well as use various analysis methods to determine whether their results are being misused or used without permission. In this way, creators can effectively protect their rights and identify where infringements have occurred. Finally, authorities could also enact new laws or adapt existing laws to improve the protection of copyrighted works in the context of AI and thus provide greater legal certainty to creators. Overall, it is clear that technical solutions are important to safeguard copyrighted works from misuse by AI programs and to give creators more legal certainty in the use of their work. Therefore, it is advisable for government agencies and companies worldwide to adopt these technologies as soon as possible and provide legal frameworks to protect creators. This is the only way to ensure that those who have respect for the property of others and can take advantage of the AI

Conclusion: How do artificial intelligence and copyright influence our everyday life?

Given the complex and interdependent relationship between AI and copyright, it is important that both companies and governments take full advantage of AI’s capabilities without violating applicable laws. With the development of AI applications, the property rights of individual owners to their works must be respected, while at the same time creating a framework in which these technologies can be safely applied. Because of the importance of AI to our lives, government agencies must ensure that they are fair and equitable to all stakeholders. To this end, the laws must be reviewed and reform proposals drawn up. New ways must be found to ensure the protection of intellectual property in a digitized world. In short, AI applications have the potential to dramatically improve our everyday lives – but only on the condition that these technologies are applied according to the principles of copyright law. Therefore, it is critical that companies and regulators adhere to copyright principles when developing innovative applications of artificial intelligence. Only then can they offer users maximum service quality and performance.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.