By Anna Beke-Martos*
The industry is abuzz with the seemingly endless opportunities Artificial Intelligence (AI) offers.
However, as there almost always is — there’s a rub: Copyright does not protect machine-created works. They are essentially, as far as Copyright Law is concerned, a free-for-all.
Accordingly, those who rely on AI to create content will have little to no possibility to protect their product. And, perhaps more importantly, when selling or licensing such content, they will essentially sell or license rights which they simply do not own. The buyers (or licensees), in turn, will have much less assurance that they can indeed exploit the content exclusively and without interference from third parties.
The consequences are potentially far-reaching and hugely disruptive. The inclusion of AI-created content in works and catalogs may destabilize the market, increase risk for buyers, and, as a consequence, reduce the license fees they may be willing to pay. This is not to say that AI cannot make the content better. But it may reshape the industry and require a lot of legal juggling.
Of course, one could argue that AI-created content would not be the first non-copyrightable item offered by content creators. TV formats per se are, as a general rule, also unprotected by copyright. This has been affirmed, with minimal exceptions, by numerous courts around the world, and yet the market for TV formats was seemingly unaffected. It was left to the creativity of lawyers to ensure that formats can be and are traded with minimal legal risk.
Another point, legitimately raised by many, is that in case of a dispute, it may be hard to actually prove whether certain elements of a work were, in fact, created by AI. While in the U.S., the procedural rules of discovery may reduce AI-users’ ability to camouflage the true source of their work, in most European countries, the rules on how to provide evidence are different, and often less strict. A decided upside of the many differences between American and European court systems is a cultural one: the attitude of Let’s sue! (… even if we are just one percent right and 99 percent wrong) is — to date — mercifully alien to most European jurisdictions. The downside of the European flexibility is that it inevitably causes uncertainty. With uncertainty comes risk, and risks should be first, mitigated to the lowest extent possible legally, and second, leveraged into business decisions — both during content creation and during sales/acquisitions.
One thing is certain: Creative industries rely on the protections offered by Copyright Law. The exclusive right to license the various uses of content and the right to receive remuneration for such uses aim to incentivize human creativity. These legal protections were put in place for, and indeed only make sense if applied to flesh-and-blood humans. One can anticipate (and perhaps even hope) that if these protections are systematically abused, lawmakers will not idly stand by.
*Anna Beke-Martos is an Intellectual Property, Media, and Entertainment lawyer based in Budapest
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