The copyright issues that generative AI poses
As is well known, the use of artificial intelligence (AI) in content creation has marked a momentous turning point in recent years, so much so that it is now capable of generating and producing works of different kinds, including musical compositions, literary texts, visual artworks and design projects.
For example, thanks to the use of artificial intelligence in the music industry, starting from musical bases generated by algorithms and refined by musicians, it has been possible to compose songs of various genres, from classical music to modern pop. Such AI platforms can be used for free by anyone who wants to generate new musical compositions; in fact, it is enough to download the appropriate program from any search engine and briefly describe the content you want to listen to for the desired musical text to be played.
Not only that. AI is also being particularly used in the field of visual art and in fact has made it possible to recreate works of art exhibited and sold at auctions as one-of-a-kind pieces, among which it is worth mentioning some collections made with the help of AI exhibited in the well-known MoMA (Museum of Modern Art) museum in New York.
And even in the field of literature, artificial intelligence is being used to create poems, short stories and entire novels simply by asking the “machine” to analyze and study existing literary collections.
Such artificial intelligence systems are better known as “Generative Artificial Intelligence,” as the content is created and generated by using complex algorithms and machine learning models. These are systems designed to learn from large amounts of existing data through which they are then able to generate new content.
It goes without saying that this extraordinary ability of AI astonishes but also worries, as it challenges the traditional notion of authorship and raises a number of questions about the ownership of rights over such creations and works.
Indeed, one of the main difficulties related to this content creation process, is whether the work generated by generative AI can be considered “original” according to the traditional notion of copyright and whether the AI creation process represents a “reworking / transformation,” legitimate or not, of the original work.
Since the algorithm uses third-party, copyright-protected material, it could be argued that generative AI is capable of generating derivative work, which, as is well known, is a new creation that incorporates or modifies a pre-existing work already protected by law. In this context, if a generative AI algorithm is trained, for example, with copyrighted pieces of music, it is open to question whether the result obtained violates the copyrights of the original works to the extent that it constitutes an unauthorized reworking of them.
If, again for the sake of argument, one was to classify the work created by generative AI as an autonomous and original work, one would then have to ask which party would be entitled to the relevant intellectual property rights over that creation.
However, the current copyright rules are unable to provide any guidance on such questions, given that they were conceived at a time when it was hardly conceivable that any content could be created by anyone other than a human being.
As a result, identifying the artificial intelligence system as the author of the work, and thus the holder of the relevant copyright, would raise a number of complex legal issues, certainly including that of legal capacity, which, as is well known, is the ability of a subject to be the holder of subjective legal situations and thus of rights and duties. This requirement is inevitably lacking when discussing artificial intelligence systems.
For the above-mentioned reasons, the question therefore arose as to whether the authorship of the work should therefore be attributed to the developer of the generative artificial intelligence system.
However, this statement poses a further problem: the creativity and originality of the work is not directly ascribable to the action of the developer, rather than to the artificial intelligence system itself, or in any case it is particularly difficult to identify the creative contribution of one or the other.
The same also applies to the owner of the data used in the training/learning phase of the artificial system; in fact, even if one wanted to identify this subject as the owner of the copyright, the dataset provided by him, in the absence of a learning model, would in any case not be able to generate the work and therefore once again there would be a risk of attributing and recognizing rights that are not exclusively due to a human being.
Case law has attempted to provide an answer to these numerous questions. Indeed, an initial decision by the Copyright Office in the United States of America denied any copyright recognition to works created entirely by a generative AI system, clearly stating that for a work to be protected by copyright, there must be a human author involved in its creation.
This orientation has also been confirmed by more recent court rulings in the US and, in particular, by a federal court in Washington D.C. in 2023.
In Europe, a similar conclusion has also been reached: the Supreme Court recently ruled on this issue in Judgment no. 16346 of 2023, regarding the definition of authorship for works created by means of AI systems and the level of integration of the creativity of the artist in the use of the software. In the opinion of the judges of the Court, it is necessary to assess on a case-by-case basis whether, during the generative process of the work, the software in use has integrated with the creativity of the human user.
The difference between a simple automatic generation of content by generative AI systems and a work that is an expression of the creativity of the artist through digital AI is therefore of fundamental importance. Only in the latter case, by demonstrating therefore that there has been a significant human creative contribution, is it possible to find ways of enforceable protection under copyright law.
In this context, the need for an intervention by the legislator to redefine key concepts and prepare new copyright regulations for the AI phenomenon, which is destined to grow exponentially, is unquestionable.
One solution that is worthy of attention could be the drafting of new forms of licenses and copyrights that would better suit today's reality and represent a meeting point between technological innovations and copyright protection. For instance, we could consider introducing specific licenses for AI-generated works or developing new ways of enforcement in which the collaboration between human ingenuity and the aid of AI is clearly recognised.
Finally, more cooperation at European and international level is desirable, considering the global dimension of technological innovation and distribution of creative works. Digital technologies, such as the internet and content distribution platforms, are by their very nature global and therefore require a coordinated response from authorities in different countries.
It will be crucial to work together to establish standards and rules that work globally, while ensuring that the copyrights of different jurisdictions are respected.
Internet of Things and Artificial Intelligence: the end or beginning of standard essential patents?
The COVID-19 pandemic has forced everyone into quarantine which in turn also has imposed a re-organisation of personal and working life directly within our homes.
All of this has simply proven and increased our already worrying dependence from IT means and new technologies, the use of which increased exponentially in 2020 in all sectors, even in those where this would have been difficult to imagine (let us consider, for example, court hearings done remotely via audio-video link, school distance learning, etc.).
Similarly, we are also witnessing an ever increasing digital integration in objects, devices, sensors, and daily goods which now have become a part of our everyday life.
With that being said, we should ask ourselves now what impact the current technological revolutions will have within the field of intellectual property and, in particular, within the patent sector.
In our view, the current changes will certainly bring about a rejuvenation in the field of inventions; indeed, to the extent that is of interest for our purposes, it should be noted that thanks to the decisive role of artificial intelligence and the “internet of things”, we may legitimately expect an increase in the filing of so-called standard essential patents.
It is well known that standard essential patents (SEPs) are patents that protect technologies considered to be – indeed – essential for the implementation of standards which are recognised by the relevant standards setting organisations.
These patents are already present within our life more than we imagine and in fact we use them for calling others, sending messages via our smartphone, sending files via e-mail, listening to our music playlists or simply watching our favourite TV series whilst sitting on our couch at home.
Today, the most well-known standards probably would include “Bluetooth”, “WiFi” and “5G” but, as we said above, performing any of the above actions involves dozens of standards each of which is in turn protected by the aforementioned patents.
In a recent communication sent out last November to the European Parliament, the European Commission evidenced the crucial role of standard essential patents in the development of 5G technology and the Internet of Things, for example noting that just for standards of mobile connectivity the ETSI (European Telecommunications Standards Institute) has declared more than 25.000 patent families.
However, in the same communication the Commission also evidenced the difficulties that some businesses encounter in trying to reach an agreement for the grant of licenses with the holders of standard essential patents, which consequently has determined a rise in disputes between rights-holders and users.
Indeed, it’s known that a patent is defined as essential following a sort of self-declaration by its holder to the effect that the patent is necessary and essential for the application of a standard and, therefore, by means of this declaration, the holder is available to grant a license over such patent to those who intend to utilize the relevant standard under so-called “FRAND”, namely conditions that are Fair, Reasonable And Non-Discriminatory.
What occurs in practice is that the holder of the standard essential patent, having ascertained the presence within the market of a product that uses a certain standard, will turn to its producer or distributor and ask the latter to sign a license agreement containing “FRAND” conditions.
At that point the user has no other choice but to accept the license at the conditions that have been proposed by the patent holder; indeed, unlike what happens with patents that are not standard essential where the user clearly may search for alternative solutions that do not infringe the patent, this is not possible with standard essential patents given that they concern standards used for complying with technical provisions that form the basis of millions of products and therefore allow for interoperability between such products.
Moreover, investing in the development of an alternative standard is very expensive (for example, consider the development of a potential alternative to the “Bluetooth” standard), but – even if we should assume the feasibility of developing an alternative standard – consumers would then have to be persuaded to “switch” to a new standard and substitute their devices with new ones.
The risk that this kind of situation may cause distortions within the market and especially instances of abuse on part of the holders of standard essential patents is therefore very high; indeed, those holders may decide the fate of a product within a certain market because they force all operators of that same market to use the standard upon payment of a royalty.
In order to balance the interests at play, the well-known judgment of the Court of Justice in the case of “Huawei v. ZTE” (C-170/13 of 16.07.2015) had already been issued in 2015 and provided for a series of obligations upon holders of standard essential patents, namely, among other things: a) the obligation to guarantee at all times so-called FRAND conditions in favour of potential licensees; b) the obligation of the patent holder to always warn in advance the user of the protected standard by indicating the patent that has been infringed and specifying how such violation has occurred and, if the user fails to cooperate, to commence legal proceedings.
According to the Court of Justice, if these conditions are met then it cannot be held that the holder of the standard essential patent has abused its domination position within the market and therefore no sanction may lie under art. 101 of the TFUE.
However, reality is somewhat different insofar as holders of standard essential patents still have excessive negotiating power vis-a-vis the user of the protected standard. Indeed, as already noted, the essential nature or lack thereof of a patent depends on a self-declaration given by the same holder of the patent which also establishes a “de facto” presumption of “essentiality” of the patent; this further facilitates the holders in legal proceedings because the burden of proof then falls onto the alleged infringer who will have to prove non-interference or the non-essential nature of the patent.
It should also be noted that as of now there are no provisions that protect the weak party, that is the user of the standard essential patent and, indeed, for example there are no reference criteria that clearly define conditions that are fair, equal, and non-discriminatory. In other words, the user cannot verify if the conditions that are proposed by the patent holder are actually “FRAND” and so two options become possible: either accept the conditions or rebel and start proceedings against the patent holder.
Even though the matter of standard essential patents has formed the subject of several judgments and specific calls by the European Commission throughout the years, several questions have been left open and require immediate action by the legislator in order to strengthen legal certainty and reduce the rising number of disputes within this field.
In our opinion, it would be advisable for example to create and establish an independent body that could verify in advance the essential nature of a patent before it is protected as well as to create rules that are specific, effective, and fair capable of regulating the grant of licenses for standard essential patents.
Furthermore, considering the ongoing technological revolution and the consequent increase in the use of such patents, we trust that these reforms will be introduced in a timely manner.