“AI vs Copyrights – a Latam approach”.
Diego Acuña Domínguez – IP expert @ Latin America IP SME Helpdesk / CEO and Founder
at BRANDLEX.
From time to time, a new disrupting technology generates a legal earthquake, and we are
exactly in the middle of one…
Only months ago, on November 30 of 2022, the Chat Generative Pre-Trained Transformer
(mostly known as “ChatGPT”) was launched, using Artificial intelligence (“AI”) in a way
that we have not seen before. And it literally turned the world upside down, being just the
spearhead of a new technological era.
There are several legal implications that this new technology is generating (i.e. bias and
ethical concerns, privacy matters, gender inequality, fake news, deepfakes, among many
others), but we will focus this article on the tensions arisen with pre-existing right holders
of intellectual property (IP) assets, specifically with works that are protected by copyright
according to the current legislations and the International Treaties (i.e. the Berne
Convention for the Protection of Literary and Artistic Works with more than 180 countries
around the globe that are parties of the agreement).
In very simple words, the Generative Artificial Intelligence (or “G AI”) manages to develop
content, using pre-trained language models to learn the relationships that exist between
data created by people. What these technologies do is create a model of “transformers,”
or neural networks that learn contexts. In this way, when entering certain parameters or
inputs, the system or language model yields a certain result (output), which is mainly
based on predictions it makes regarding what is the most accurate or correct answer.
In this sense, some of the fundamental questions in relation to the protection granted by
copyrights are the following: ¿The works protected by copyright can only be created by
humans, or also by an artificial intelligence? What about the works that have been
created by humans, but with the “assistance” of some Generative Artificial Intelligence?
Where is the boundary between the works created by humans with the “assistance” of
an G AI, and those in which there has been no human intervention or participation at all?
The answers to these fundamental questions are the relevant key for obtaining protection
for these works through copyright.
Currently, most of the legislations require that protectable works must be “an expression
of the human intellect”. Accordingly, if there is no participation by a natural person
(human) in the creation process, these works should not be protectable under the current
Intellectual Property system.
According to the Mexican Copyright Law for example, author is the physical person who
creates an (original) work capable of being disclosed or reproduced by any means or form.
In Chile, the author is the natural person who creates a literary, artistic or scientific work.
This definition includes writers, artists, musicians, filmmakers, photographers, designers,
among others, who have the exclusive right to exploit his work and to authorize its use by
third parties, in whole or in part, in exchange for remuneration, together with the moral
rights over his work, which are inalienable. In Brazil, the Copyright Law clearly states that
the author of a literary, artistic or scientific work is the natural person who created it.
This strict approach may have been useful until a year ago. But not within this new
technological scenario, where millions of works of all kinds are being generated every day
using AI, either with the “assistance” of some G AI or with no human intervention or
participation at all (being solely the random or unpredictable result “generated” by
technological means such as an algorithm or AI). These works can be literary (like a book),
artistic (like an image, photograph, video or song), and especially computer programs or
software (written in code or computer language), so the current approach is blurred and
falling short.
Unfortunately, most of the Copyright Offices in Latin America do not have enough
technological means to cover the high demand for registrations, in order to review each
work beforehand and to analyze whether it has been created by human intellect or by an
G AI. Additionally, none of the current Latin American copyright legislations include a
definition of what we can understand as “assisted creation” using a technology like G AI.
As a logical consequence, there is no clear division line between a work that should be
protected by copyright, and those that should not.
In this sense, ¿can we understand that it is enough to send a simple instruction or initial
guideline in a text (or “prompt”) regardless of its length, to understand that the works
generated by G AI platforms are protectable through the intellectual property system?
Or we must understand that this simple instruction is just not enough, since the result
obtained by the G AI is not what the author that sent the instruction initially expected?
At least in the United States, a recent decision of the U.S. Copyright Office on September
of the last year rejected again the copyright protection for art created using Artificial
Intelligence, denying a request by artist Jason M. Allen for a copyright covering an award-
winning image he created with the generative AI system “Midjourney”. The U.S. Copyright
Office stated that the science-fiction themed image “Theatre D’opera Spatial” was not
entitled to copyright protection because it was not the product of human authorship,
even if Allen input numerous revisions and text prompts at least 624 times to arrive at the
initial version of the image using “Midjourney” and altered it with the software of Adobe
Photoshop.
Regarding Latin America (as occurs in many other Regions) we are in a gray area, without
a clear definition yet on this matter, since the amount of case law regarding these issues isstill low or inexistent. Nevertheless, in Chile for example the Copyright Office recently
rejected an application requesting the registration of a set of photographs titled “39,000”,
which were created with the generative Artificial Intelligence “Midjourney”, even if the
creation process meant the creation of approximately 250 photographs and iterations
were carried out on each of them to obtain the desired result, subsequently carrying out
exhaustive curation and finally ending with 9 images that were sent for registration. In this
case, the applicant expressly stated that the images or photographs were created using
the AI of Midjourney.
We strongly believe that in the short term, the governments or parliaments will have to
adapt the current copyright legislations to these new generative technologies and stablish
a clear border line between what is inside or outside protection, including the
requirements that must be fulfilled in each case within the creative process. Maybe, it is
also the right time to create new categories of copyrights, that may include these works
created using AI.
Also, we hope that the Copyright Offices of the Latin American countries will set clear User
Guidelines including the specific requirements and limitations to the authors or applicants
who request a copyright registration of their works, including for example a statement or
declaration of the specific parts of the work that have been generated using G AI, and
those that are an expression of the human intellect. Some offices like the US Copyright
Office have been very proactive in this sense, and could serve as a base for the Latam
Copyright Offices.
Finally, a foreseeable result of the current “tension” between the copyright holders and
the works generated by G AI, is that the number of conflicts and litigation over copyrights
will increase the short term, since everyday thousands of works created by G AI without
significant human participation, and without any prior control, are being registered and
protected by copyright.
On the other hand, many of the companies that are creating the G AI platforms for the
users are training their models using copyrighted works without the prior consent of the
authors, who are not receiving any kind of compensation.
The problem that arises from the use and massification of these technologies is that the
power source of these G AI systems is the determined “data” that is loaded, since the
system will make the prediction and generate the answer regarding the question asked,
based on that data. In this way, the energy or “gasoline” used by these G AI systems will
be the data that is loaded to it, since it is fed by the system to generate the answers.
And here lies one of the great problems that arise from the use of these new technologies,
since in most cases there is no principle of transparency regarding the data that is
uploaded or included in these predictive models, which is essential not only to understand
the results that they generate, but also to determine whether the loading and training of these G AI systems may affect the copyrights of third parties, that are protected by the
legislation of the different countries.
Probably, these cases will have to be finally solved by the caselaw of the Courts of Justice.
of each of the Latin American countries, who are called to apply the current legislations in
each case and territory. Nevertheles, this will be a huge challenge not only for the
specialized Attorneys at Law, but also for the Judges that will have to understand how
these new technologies work.
For the moment, we will have to wait and see what happens in other jurisdictions such as
the United States or the European Union, who are committed to arrive to an AI regulation
in the short term.