Pieter De Grauwe Sacha Gryspeerdt August 15 2022 Qualification of AI creations as "works" under EU copyright law: AI-assisted versus AI-generated works GEVERS | Intellectual Property - European Union Pieter De Grauwe, Sacha Gryspeerdt Intellectual Property IntroductionAI-assisted versus AI-generatedIntroductionArtificial intelligence (AI) systems are capable of creating a wide range of artistic, literary and musical works with limited human intervention. In the future, AI systems might be capable of creating output without any human intervention at all. However, EU copyright law today is centred around the original author being a human – not an AI-driven machine. In order to have copyright, two conditions must be fulfilled:the creation must be a "work", as defined in the case law of the Court of Justice of the European Union; andthe copyright owner must be the original author of the mentioned work or have obtained the copyright by transfer.The authorship of AI creations has already been the subject of much debate.(1) However, the first condition about the qualification of an AI creation remains questionable: can AI creations qualify as a "work" to start with? And can AI creations be protected under EU copyright?This article is part of a series of articles that examines whether, and under what conditions, AI creations can qualify as "works" under the current EU copyright framework. In particular, this article focuses on the distinction between AI-generated output and AI-assisted output.AI-assisted versus AI-generatedThere is a general tendency to make a distinction between AI-assisted output and AI-generated output. This distinction has been confirmed by the World Intellectual Property Organization,(2) the European Commission(3) and the European Parliament.(4)AI-generated output"AI-generated output" refers to the generation of an output by AI without any human intervention. In this case, AI can change its behaviour during operations to respond to unanticipated information or events. According to the European Commission, there are currently no examples of AI-generated works.(5)AI-assisted output"AI-assisted output" is generated with material human intervention and/or direction. AI-assisted output can be defined as outputs, applications or productions generated by or with the assistance of AI systems, tools or techniques. Examples include:the 3D painting "The Next Rembrandt",(6) created by Microsoft on the basis of paintings of Rembrandt van Rijn;text translations produced by DeepL;(7) andmusical compositions for the AI Song Contest.(8)For further information on this topic please contact Pieter De Grauwe or Sacha Gryspeerdt at GEVERS by telephone (+32 3 206 99 88) or email ([email protected] or [email protected]). The GEVERS website can be accessed at www.gevers.eu.Endnotes(1) See for example, A Ramalho, "Will robots rule the artistic world? A proposed model for the legal status of creations by artificial intelligence systems", Journal of Internet Law, 2017.(2) See WIPO Conversation on Intellectual Property (IP) and Artificial Intelligence (AI) – Revised issues paper on Intellectual Property and Artificial Intelligence, 21 May 2020.(3) See European Commission Trends and Developments in Artificial Intelligence – Challenges to the Intellectual Property Rights Framework, September 2020.(4) See European Parliament Resolution of 20 October 2020 on intellectual property rights for the development of artificial intelligence technologies, 2020/2015(INI)).(5) See European Commission Trends and Developments in Artificial Intelligence – Challenges to the Intellectual Property Rights Framework; September 2020, page 80.(6) For more information, click here.(7) For more information, click here.(8) For more information, click here.