Pieter De Grauwe Sacha Gryspeerdt August 29 2022 Qualification of AI creations as "works" under EU copyright law: four-step test GEVERS | Intellectual Property - European Union Pieter De Grauwe, Sacha Gryspeerdt Intellectual Property IntroductionAI-assisted outputAI-generated outputCommentIntroductionThis article is part of a series of articles that examines whether, and under what conditions, artificial intelligence (AI) creations can qualify as "works" under the current EU copyright framework.(1) In particular, this article focuses on the question of whether AI-assisted output and AI-generated output can qualify as protected "works".To answer this question, the European Commission (EC) has proposed a four-step test.(2) This article discusses every step of this test and applies them to "The Next Rembrandt" (Figure 1),(3) a 3D-printed painting created by an AI system.Figure 1: "The Next Rembrandt"AI-assisted outputStep oneThe AI-assisted output must be a production in the literary, scientific or artistic domain (article 2(1) of the Berne Convention for the Protection of Literary and Artistic Works). This includes, for example:news articles;poems;compositions;geographical maps;photos; andfilms.The output of many AI systems will fall under this category. "The Next Rembrandt" fulfils this condition as the final output generated consists of a 3D painting.Step twoThe AI-assisted output must be the result of human intellectual effort. In the Painer case, the Court of Justice of the European Union (CJEU) clarified that it is possible to create works of authorship with the aid of a machine or device.(4) According to the EC, AI-assisted outputs will always go hand in hand with some form of human intervention – for example:the development of software;the gathering or choice of training data; andediting.Therefore, this condition will generally be fulfilled for AI-assisted output."The Next Rembrandt" meets this requirement. The creators of "The Next Rembrandt" gathered data from the entire collection of the works of Rembrandt. In order to obtain this data, the creators analysed a broad range of materials, such as high-resolution 3D scans and digital files, which were upscaled by deep learning algorithms to maximise their resolution and quality. This extensive database was then used to create "The Next Rembrandt".The creators also designed a software system that used different algorithms to identify Rembrandt's style (ie, composition, geometry and painting materials) and construct a face out of the features. Yet another software was developed to convert the digital file into a 3D printed work that could mimic the brush strokes used by Rembrandt. Therefore, the result was at least partially the result of human intellectual effort.Step threeThe AI-assisted output must be original. In the Painer case, the CJEU stated that a creative combination of ideas at distinctstages of the production process might be sufficient for the result to qualify as a "work" protected under EU copyright law.(5) The originality of an AI-assisted output will depend on whether a human author has made creative choices during the production process, and whether these creative choices are reflected in the final result. In the assessment of originality, creative choices in three phases of the production process(6) are taken into account.Conception phaseThis phase involves creating and elaborating a work and requires a series of detailed design choices, such as genre, style, materials and technique. These decisions can also entail the choice of the AI system, as well as the selection of input data. With AI-assisted outputs, these choices will mostly be exercised by a natural person. The AI system will, in general, play no role in this phase.The creators of "The Next Rembrandt" made choices concerning the input and training data that was used to generate the final output. It could be argued, however, that their choices concerning style, composition and colour, among other things, were not "free and creative", because they were dictated by the earlier works of Rembrandt.Execution phaseThis phase involves converting the design or plan into draft versions of the final work. Examples include:producing text;recording music;taking photographs; andcoding software.In this phase, the AI system will often play a dominant role in the creative process, whereas the user will have a rather more operational role by guiding the AI system towards the desired output. However, this can still entail creative choices on the part of the user. In the case of supervised deep learning systems in particular, the user's role is vital in constantly monitoring the output, giving feedback and adjusting the AI system.The AI system played a dominant role in the creation of the draft versions of "The Next Rembrandt". It used the principles it had learned to replicate Rembrandt's style and to generate new facial features for the new digital painting. The same is true for the 3D printed painting that mimics the brushstrokes of Rembrandt. However, the creators must have actively monitored, adjusted and given feedback to the AI system throughout the creative process in order to achieve the final output.Redaction phaseThis phase involves processing and reworking the draft versions into a finalised cultural product before it is published and marketed – for instance:rewriting;formatting;editing;mastering; andother "post-production" activities.For AI-assisted outputs, the human actor will often make creative choices in this phase. For example, a musician using an AI music composer will often edit the output before finalising their track. On the other hand, the output generated by the DeepL translator(7) will usually not require extensive redaction by the user.In the context of "The Next Rembrandt", it may be argued that the creators made many choices throughout the creative process in the redaction phase, such as the selection of the AI-generated facial features and the position of shadows and facial features. The decision to use a 3D print comprising 13 layers for the digital output of the AI system can also arguably be seen as a free and creative choice.The EC concludes that the amount of free and creative choices made by a human actor in the creative process of AI-assisted output should not be underestimated. Therefore, these choices may contribute to the result of an original work. An AI-assisted output could qualify as a work protected by copyright if a human actor initiated and conceived the work and subsequently redacted the output in a creative manner.Step fourThe work needs to be identifiable with sufficient precision and objectivity. Given the "black box" characteristic of machine learning systems, the human actor may not be able to predict the outcome of the execution phase. However, as long as the output stays within the ambit of the author's general authorial intent, this condition should not form an obstacle."The Next Rembrandt" will most likely meet this requirement. Indeed, the creators had a clear initial intent to make a 3D painting in the style of Rembrandt. Therefore, the generated output will fall within the creator's general authorial intent.It is important to note that copyright protection will occur automatically at the conception of the work and there is no registration requirement for copyright in the European Union. The validity of copyright is only assessed after the fact before national courts. It remains to be seen whether national courts will indeed decide that the choices made by the creator in the production of an AI-assisted output are in fact free and creative choices. More specifically, it remains to be seen whether national courts will agree that choices made only in the conception phase and in the redaction phase – as suggested in the EC's four-step test – will suffice to fulfil the condition of originality.From a practical perspective, authors are advised to meticulously document all creative choices made in every phase of the creative process of developing an AI-assisted output. This will enable them to demonstrate the original character of the work and claim copyright protection.AI-generated outputAI-generated output is created without any human intervention. Therefore, it does not meet the requirements to qualify as a "work" laid down in the four-step test. For AI-generated output to enjoy copyright protection in the European Union, the current legal framework does not seem suitable. In order to tackle this issue, the legislature will have to assess whether it is desirable in the current social and economic context to grant copyright protection to machine creations.The World Intellectual Property Organization (WIPO) takes the view that, by excluding AI-generated works from eligibility for copyright protection, the copyright system would be seen as an instrument for encouraging and favouring the dignity of human creativity over machine creativity. On the other hand, according to WIPO, if copyright protection were accorded to AI-generated works, the copyright system would be seen instead as an instrument favouring the availability for the consumer of the largest number of creative works and of placing an equal value on human and machine creativity.If the existing legal framework for copyright protection remains as it is – that is, tailored around the author as a human being – AI-generated outputs will not be eligible for copyright protection. However, the EU legislature may consider creating a separate type of protection for AI-generated works, such as the sui generis type of protection for databases in the European Union.CommentThis series of articles has examined the question of whether, and under what conditions, AI creations can qualify as "works" protected under EU copyright. Generally, a distinction is made between AI creations made with human intervention and/or direction (AI-assisted output), and those made without any human intervention (AI-generated output).The current EU copyright framework is generally suitable to assess whether AI-assisted output – forexample, the 3D painting "The Next Rembrandt" – can qualify as a "work". The EC's four-step test suggests that AI-assisted outputs can be protected under EU copyright law, but the condition of originality will have to be assessed by national courts in the European Union. More specifically, a human interlocutor will need to have made free and creative choices during the conception and redaction phases of the AI work.As AI-generated output is created without any human intervention, it does not meet the requirements to qualify as a "work", as laid down in the four-step test. For AI-generated output to enjoy copyright protection, the current legal framework is not suitable. The EU legislature will likely need to address this point in the future.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 earlier articles in the series, see:"Qualification of AI creations as "works" under EU copyright law: AI-assisted versus AI-generated works"; and"Qualification of AI creations as "works" under EU copyright law: concept of "work" under EU law".For the full series, see "Artificial intelligence (AI): The qualification of AI creations as "works" under EU copyright law".(2) See European Commission Trends and Developments in Artificial Intelligence – Challenges to the Intellectual Property Rights Framework; September 2020, pages 79-85.(3) "The Next Rembrandt" is "a computer-generated 3-D–printed painting developed by a facial-recognition algorithm that scanned data from 346 known paintings by the Dutch painter in a process lasting 18 months. The portrait consists of 148 million pixels and is based on 168,263 fragments from Rembrandt's works stored in a purpose-built database". See "About The Next Rembrandt" in "Artificial intelligence and copyright", World Intellectual Property Organization.(4) CJEU, 1 December 2011, C-145/10, Painer.(5) Ibid.(6) For further information, see "Artificial Intelligence (AI): Dissecting the AI Value Chain".(7) For more information, click here.