Generative AI in contractual practice: transparency and legal aspects with a focus on exploitation rights clauses

Introduction to the world of generative AI

The rapid development of generative AI technologies has far-reaching implications for the creation of content in various industries. These technologies, which range from text generators to advanced image editing programs, offer enormous potential for increasing efficiency and creativity. However, they also raise fundamental questions with regard to copyright and property rights, particularly in the context of German copyright law. According to § 2 Abs. 2 UrhG, works within the meaning of the law are only personal intellectual creations. This raises the question of whether and to what extent AI-generated content falls under this definition and is therefore eligible for copyright protection. The clarification of this question is crucial, as it forms the basis for the allocation of exploitation rights. In a world where AI-generated content is becoming increasingly common, it is crucial to understand and adapt the legal framework. This applies in particular to the exploitation rights to these works. The challenge is to find a balance between protecting intellectual property and promoting innovation and creativity. The special features of German copyright law, which traditionally focuses on the creator of a work, must be taken into account.

Legal implications of the use of AI

The use of AI in content creation raises complex legal issues, particularly in the area of copyright. In the German legal system, the copyright to a work is attributed to the person who created the work (Section 7 UrhG). In the case of AI-generated content, however, it is unclear who is considered the author. This lack of clarity can lead to legal disputes, especially when it comes to the use of this content. It is therefore important to make clear provisions in contracts as to who owns the exploitation rights to AI-generated content. These regulations should not only define who may use the content, but also how and to what extent it may be used. In addition, they should also cover aspects such as license fees, copyright infringement and responsibility for copyright compliance. Section 31 UrhG, which regulates the transfer of rights of use, is particularly relevant here. It must be clearly defined whether and to what extent usage rights to AI-generated content can be transferred and what restrictions apply.

Transparency in contracts

The importance of transparency in contracts involving AI-generated content cannot be overemphasized. Clear communication about the use of AI in content creation is crucial to avoid misunderstandings and legal disputes. Contracts should detail the extent to which AI technologies have been used to create content. This is particularly important as the boundaries between human and machine creation are becoming increasingly blurred. A transparent presentation of the role of AI in content creation helps to manage the expectations of all parties involved and ensures that rights and obligations are clearly defined. In addition, transparency promotes trust in the technology used and its results. In an environment where AI is becoming increasingly important, it is important that users and customers feel that they understand and can trust the technology and its impact. Section 24 UrhG also plays a role here, which regulates the free use of a work and can therefore be relevant when using AI-generated content.

Recommendations for drafting contracts

When drafting contracts relating to the use of AI technologies, specific aspects should be taken into account in order to minimize legal risks and create clarity for all parties involved. A central point is the formulation of exploitation rights clauses. These clauses should precisely define who owns the rights to AI-generated content and how it may be used. It is important that these clauses are detailed and specific in order to avoid possible ambiguities. They should also contain provisions for licensing, the distribution of license fees and the handling of copyright infringements. It is also advisable to include provisions on liability in the event of errors or infringements caused by the AI. This includes questions of liability for incorrect or illegal content generated by the AI. Finally, contracts should also take data protection and security aspects into account, especially when AI tools process personal data. Section 97 UrhG is also relevant here, which regulates claims for copyright infringements and can therefore play a role in the use of AI-generated content.

Conclusion

The use of generative AI in the creation of content offers numerous opportunities, but also poses legal challenges. Careful and transparent contract drafting is essential to protect the rights of all parties involved and to ensure legal certainty. In particular, the formulation of exploitation rights clauses plays a decisive role in creating clarity regarding the use and exploitation of AI-generated content. In view of the constantly evolving technologies and legal framework, it is important that contracts are designed flexibly and are regularly reviewed and adapted to keep pace with the latest developments. For comprehensive legal advice in this dynamic and complex area, it is advisable to seek professional support. Particular attention should be paid to the specific requirements of German copyright law to ensure that all legal aspects are correctly addressed and integrated into the contract design.

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.