Gianpaolo Todisco - Partner
Current intellectual property laws were conceived in an era in which creativity was the exclusive prerogative of human beings. However, the increasing use of generative AI, such as ChatGPT for texts or MidJourney for images, has made it necessary to rethink the regulations.
At the moment, most international legislation states that only a human being can be considered an author or inventor.
For example, the United States Patent and Trademark Office (USPTO) has repeatedly rejected patent applications for inventions made by AI, arguing that only a human being can be recognized as an inventor.
The United Kingdom Intellectual Property Office (UKIPO) follows the same line, excluding AI as a possible copyright holder.
European Union: EUIPO and the European Court of Justice also agree that only a natural person can claim copyright on a work.
Italian case law has developed a notion of creativity which, as highlighted by the Court of Cassation in sentence no. 25173/2011, “does not coincide with that of creation, originality and absolute novelty”, but refers to the “personal and individual expression of an objectivity”. This principle was further developed by the Court of Cassation with sentence no. 10300/2020, which specified that the work must “reflect the personality of its author, manifesting the latter's free and creative choices”.
The Italian system, as confirmed by the Civil Code in art. 2575, recognizes copyright on “works of the intellect of a creative nature”, assuming a direct connection between the work and the personality of its creator. As highlighted by the Court of Florence in sentence no. 1372/2022, “copyright does not protect ideas but only the expressive form that the author gives to the work, since it is in the expressive form that the author manifests his creativity and expresses his personality”.
One point of debate is whether AI can be recognized as an author in all respects. Currently, regulatory bodies consider AI to be a tool, and the rights to the generated works belong to the programmer or the user who gave the input for the creation. However, in some cases human intervention is minimal or even non-existent, making it difficult to establish authorship of the work.
The absence of clear regulations poses several problems. First of all, legal protection: works generated by AI may not be protected by copyright, making them freely usable by anyone.
From the point of view of plagiarism and copyright infringement, many AIs are trained on existing data and could create content that resembles copyrighted works, raising legal issues.
Finally, if AIs generate works of art, music and texts on a large scale, artists and creators risk seeing their work devalued or replaced.
Possible Solutions and Future Prospects
New categories of copyright: create a new form of protection for works generated by AI with a percentage of human involvement.
Attribution of rights: assign ownership of AI works to the creator of the algorithm or to whoever provided the creative input.
Regulation of AI use: define clear rules on how to train AI without violating pre-existing copyrights.
In conclusion, artificial intelligence is transforming the intellectual property landscape and poses challenges that legislators must address quickly. Until regulations are updated, companies and creators will have to be careful in their use of AI-generated content to avoid legal problems. The debate is still open, and the decisions made today will define the future of creativity in the digital age.