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.(1) In particular, this article focuses on the concept of "work" under EU law.
The concept of "work" has been recognised by the Court of Justice of the European Union (CJEU) as an autonomous and harmonised concept of EU law that must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied – namely, that the subject matter of the work is:
- "original", which means that it reflects the personality of its author, as an expression of the author's free and creative choices. If the subject matter is dictated by technical considerations, rules or other constraints, with no room for creative freedom, such subject matter will not be considered to be "original"; and
- identifiable with sufficient precision and objectivity.(2)
Clearly, it may be difficult to demonstrate the author's free and creative choices in the case of AI-assisted output. The following questions become relevant:
- What types of choices are deemed relevant in the creation of AI-assisted output?
- Can the requirement of originality even be fulfilled given the role of the AI system in the creation of AI-assisted output?
- Is it relevant in which phase of the creative process the alleged free and creative choices have been made?
- Can AI-generated output fall under the aforementioned concept of "work"?
In a September 2020 report, the European Commission (EC) addressed these questions. More specifically, the EC reviewed how to apply the conditions set out by the CJEU to AI-assisted output and AI-generated output, resulting in the proposal of a "four-step test". The CJEU, however, is in no way bound by the EC's report.
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) For the first article in the series, see "Qualification of AI creations as "works" under EU copyright law: AI-assisted versus AI-generated works". For the full series, see "Artificial intelligence (AI): The qualification of AI creations as "works" under EU copyright law".