Copyright and Generative AI: Who Is the “Real” Author?
With the explosion of generative AI technologies (from text-based platforms like ChatGPT to graphical solutions like DALL·E, MidJourney, and Stable Diffusion), the line between human and machine creativity has become increasingly blurred. A crucial question dominates the debate: who is the true author of AI-generated content?
Copyright, as conceived in national and European legislation, is based on the idea of a human creative act. But what happens when the work arises—entirely or largely—from an algorithm?
The state of the regulatory art
Copyright, as we know it, is built on one premise: a creative human contribution is required. Without the "hand of man," there is no protection.
For this reason, today in Europe and Italy it is not possible to attribute the authorship of a work to a software. AI is considered a tool , like a camera or a graphics program.
The recent Italian law on artificial intelligence has reiterated the concept: if there is no human intellectual contribution, the generated work remains outside the copyright .
In the United States the position is similar. Copyright The Office denied registrations for works created entirely by AI, instead granting protection only where humans have made substantial creative choices (such as in selecting, modifying, or combining the results).
There Copyright The US Office has repeatedly denied protection to works generated exclusively by AI. In some cases, it has granted protection only to the portion of the work that reflects human creative decisions (for example, choosing prompts, selecting and modifying results).
The debate takes place in a still fragmented context. Some scholars propose attributing rights to the software owner or licensee, others argue that AI-generated works should fall into the public domain.
The key issues
Originality
Generative systems rework existing data. Is the output truly original or is it a reworking of pre-existing works?
Authorship
If the human merely enters a prompt, is his creative role sufficient to claim authorship?
Responsibility
In the event of infringement (e.g., plagiarism, deepfakes, unauthorized use of protected materials), who is liable? The user, the platform owner, or the AI itself (a legally unacceptable concept today)?
Commercial exploitation
Companies intending to monetize AI-generated content must contractually clarify ownership of rights and usage limits.
Concrete impacts for creatives and businesses
Artists and designers: they risk having their styles reproduced without consent, but at the same time they can use AI as a creative enhancement tool.
Businesses and startup : they must structure clear contracts with employees, collaborators and suppliers who use AI, specifying the ownership of the rights and the methods of commercial exploitation.
Publishing and media: are required to establish internal policies to distinguish between human-created content and AI-generated or AI-assisted content.
Possible solutions
Contractual attribution
Include clauses in contracts that clarify ownership of AI-generated works.
Labelling and transparency
Introduce reporting requirements to distinguish “AI-assisted” from “AI-generated” content.
“Instrumental” approach
Treat AI like a camera or editing software: the copyright remains with those who made the creative decisions on the final work.
New “sui generis” protections
Some propose a specific right, similar to related rights, which would recognize economic value to AI results without calling them “protected works”. copyright ”.
Conclusion
Copyright was built around humans as authors and creators. The arrival of generative artificial intelligence is forcing lawyers, legislators, and creatives to redefine traditional categories.
For now, the rule is clear: without a human creative contribution there is no copyright But economic and technological pressure will push for new solutions, capable of balancing innovation, the market, and creative rights.