In our article "Protecting intellectual property and developing AI systems: can they coexist?", we examined the relationship between artificial intelligence and training data in terms of the indiscriminate use of information, some of which may be covered by intellectual property rights.
Regarding the relationship between AI and intellectual property, the other fundamental question is whether works generated by an AI system can be considered original and creative and, if so, who owns the intellectual property rights.
Article 1 of the Italian Copyright Law (Law 633/1941 - LDA) states that
“Intellectual works of a creative nature in the fields of literature, music, plastic arts, architecture, theatre and cinematography, whatever their medium or form of expression, shall be protected by this law.”
In the current wording of the provision, therefore, there is no reference to the fact that the author must be human. However, until now it has been taken for granted that the presence of a human being is referred to and implied in the concept of creativity, as there can be no creativity without a human.
The necessity of the presence of the human being is recalled both in the decisions of the national courts and in those of the European Court of Justice, which on several occasions refers to the intellectual creation of the author, which reflects their personality and is manifested through the free and creative choices of the author in the realisation of the work.
Even in Anglo-Saxon law, the interpretation of the concept of authorship by the courts and the Copyright Office is always inextricably linked to man as a natural person.
On the other hand, the Italian Draft Law on Artificial Intelligence proposes in Article 24 an amendment to Article 1 of the Copyright Law, the new text of which should be amended as follows:
“Works of the human intellect of a creative nature, belonging to literature, music, plastic arts, architecture, theatre and cinematography, whatever their medium or form of expression, are protected by this law, even if they have been created with the aid of artificial intelligence tools, provided that the human contribution is creative, relevant and demonstrable”.
With regard to patents, the US Patent and Trademark Office has issued the “Inventorship Guidance for AI-Assisted Inventions'. The document states that the fact that an invention is made using an AI system does not in itself make it unpatentable. Instead, a thorough analysis of the human contribution is required, as a patent can only be granted for those inventions where the human contribution is significant.
For now, therefore, we can say that the protection of intellectual property, whether it be copyright or industrial property, is granted exclusively to the human author, so there must always be a significant human contribution.
The other relevant element concerns the genuineness of the human contribution, which must be creative, relevant and demonstrable in relation to the contribution made by the machine in the creation of the original work.
For the authorship of a work to be attributed to its human author, the author must be able to demonstrate that his or her creative contribution was relevant in relation to the contribution made by the machine.
Thus, the issue of evidence becomes crucial.
First of all, the author must be able to provide evidence of the instructions (prompts) given to the AI tool during the creation phase of the work and then organise their work accordingly. The evaluation of the prompts will then determine whether the human contribution was decisive in terms of creativity.
However, the issue of prompts does not only arise in the context of proving the decisive contribution of the human being in relation to the processing of the machine.
Another question, different but closely related, concerns the antecedents of a work in relation to a similar work that was also produced by the machine.
It is indeed possible for an artificial intelligence system to generate two entirely similar works after receiving instructions from two different authors. So much so that the major suppliers of general-purpose AI systems provide for this possibility in the general terms and conditions that the user accepts, clearly stating that, given the way in which the algorithm is trained, it cannot be excluded that the machine will produce several entirely similar results/outputs.
Here, too, the issue of proof arises. The author will have to be able to prove which instructions they gave to the machine and also that they had obtained that particular output first.
It is therefore essential to know the general terms and conditions of any AI system one intends to use, with particular attention to AI systems for general purposes.
In conclusion, for the time being, the right to intellectual property is granted only to human beings, but only if the author is able to prove that their contribution, the instructions given to the machine, were decisive in terms of creativity for the development of the work.