Copyright and Generative AI: Who Is the “Real” Author?
With the explosion of generative AI technologies (from text-based platforms like ChatGPT to image-generation solutions like DALL·E, MidJourney, and Stable Diffusion), the line between human and machine creativity has become increasingly blurred. One crucial question dominates the debate: Who is the true author of AI-generated content?
Copyright, as defined in national and European legislation, is based on the concept of a human creative act. But what happens when a work is created—entirely or largely—by an algorithm?
The current state of the law
Copyright, as we know it, is based on one fundamental premise: it requires a creative human contribution. Without the “human touch,” there is no protection.
For this reason, it is not currently possible in Europe or Italy to attribute the authorship of a work to software. AI is considered a tool, just like a camera or a graphics program.
The recent Italian law on artificial intelligence has reaffirmed the principle that if there is no human intellectual contribution, the resulting work is not protected by copyright.
The situation is similar in the United States. The Copyright Office has denied registration for works created entirely by AI, granting protection only when a human being has made substantial creative decisions (such as in the selection, modification, or combination of results).
The U.S. Copyright Office has repeatedly denied copyright 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 (such as the choice of prompts, and the selection and modification of results).
The debate takes place against a backdrop that remains fragmented. Some scholars propose that the rights should be granted to the owner or licensee of the software, while others argue that works generated by AI should fall into the public domain.
Key Issues
Originality
Generative systems rework existing data. Is the output truly original, or is it a reworking of pre-existing works?
Authorship
If a human merely enters a prompt, is that creative contribution sufficient to claim authorship?
Liability
In the event of a violation (e.g., plagiarism, deepfakes, unauthorized use of copyrighted material), who is liable? The user, the platform owner, or the AI itself (a concept that is legally unacceptable today)?
Commercial exploitation
Companies that intend to monetize AI-generated content must clearly define ownership of the rights and the limits on use in their contracts.
Tangible benefits for creatives and businesses
Artists and designers: they risk having their styles replicated without their consent, but at the same time, they can use AI as a tool for creative enhancement.
Companies and startups: They must establish clear contracts with employees, contractors, and suppliers who use AI, specifying ownership of rights and the terms of commercial use.
Publishing and media: They are called upon to establish internal policies to distinguish between content created by humans and content generated or assisted by AI.
Possible solutions
Contractual assignment
Include clauses in contracts that clarify ownership of works generated using AI.
Labeling and Transparency
Introduce disclosure requirements to distinguish between “AI-assisted” and “AI-generated” content.
“Instrumental” approach
Treating AI like a camera or editing software: copyright remains with those who made the creative decisions regarding the final work.
New “sui generis” protections
Some propose a specific right, similar to related rights, that would recognize the economic value of AI-generated works without classifying them as “copyrighted works.”
Conclusion
Copyright law was built around the human being as author and creator. The advent of generative artificial intelligence is forcing legal experts, lawmakers, and creators to redefine traditional categories.
For now, the rule is clear: without a creative human contribution, there is no copyright. But economic and technological pressures will drive us toward new solutions that strike a balance between innovation, the market, and the rights of creators.