Authors have begun filing lawsuits to protect their rights to confront artificial intelligence that uses their work to generate content, but their legal battles will not be easy. In Europe and North America, the law tends to support artificial intelligence, although the situation may change, according to two jurists.

Last January, 3 artists in the United States filed a complaint against artificial intelligence companies and tools.

Stable Diffusion, Midjourney and DeviantArt, while photography agency Getty complained against the performance of Stable Diffusion, which turns text into a generative AI image .

treatment and indoctrination

The plaintiffs are arguing against the right of artificial intelligence to process billions of texts or images, which allowed the "indoctrination" of this technology to build its capabilities, and helped it develop its capabilities using the processed texts and images.

A 2019 European memorandum, adopted in 22 EU countries including France, allows for this "right to mine data", including on copyrighted content, if such data is publicly available, unless the rights holder expressly objects.

"This exception to copyright (if he explicitly objects to data mining) - which was designed specifically to allow the development of these technologies - almost went unnoticed," says lawyer Charles Bouvier of the Racine law firm.

Content and style

US law permits data mining within the so-called fair use policy, which was established by a lawsuit against Google related to the digital conversion of books, a lawsuit won by the giant American group that owns the largest search engine on the Internet.

For content created or generated by artificial intelligence, the legal situation is difficult.

Can this work be classified under the category of counterfeiting operations, especially if the user of the artificial intelligence software requests work that mimics the author's "style" or imitates a specific slogan?

In this context, French and European law, like American law, recognizes forgery only in the case of copies of a specific work.

However, with regard to graphics and images, unlike texts, if the source is clearly identified in the image that was created, then the question of forgery is clearly raised.

"snooping" on artists

In Europe, the concept of "snooping" can protect artists whose work is copied by artificial intelligence techniques, as the law punishes the "plunder" of the efforts of others.

French law grants the right to obtain compensation if it is proved that the copying operations missed out on the rights holders potential profits that they could have reaped.

In this context, luxury fashion houses have recently won lawsuits against parties working in the fashion sector, accusing them of stealing elements from their "world", according to lawyer Marc Mousse of the law firm "Auguste Dubuzy", and by this he means quoting the style or limited parts.

commercial use rights

Finally, there is the issue of commercial use of this content.

To whom does this right belong to the commercial use of text and images generated by artificial intelligence?

Is it possible to sell these texts, images and even videos and benefit from copyright?

For a start, lawyers believe that AI is neither owner nor author nor responsible.

"Artificial intelligence systems indicate in their general terms that the user alone is responsible for the way the content is used," says Biro, "there is nothing to prevent it from being marketed (commercially promoted)."

Should it be explicitly stated that the content is derived from AI technologies?

This may be the case with the aim of informing consumers.

A future European note on artificial intelligence could include this transparency clause.

The issue of copyright remains controversial, and French and European law determine that this right can only be used if the work in question is original and expresses the personality of the author.

And "this means that the author is a natural (real) person," according to lawyer Charles Bouvier.

"It would be complicated for users of artificial intelligence to present themselves as authors in every sense of the word," lawyer Eric Barbieri asserts.

Space opera theater

No court in Europe has yet decided on this, but in the US, the Copyright Office recently refused to grant any copyright to comic strips created by AI.

"This is the approach that European courts could take. With one reservation," explains lawyer Pierre Biro.

He cites the case of “Space Opera Theatre,” an AI-generated image that won first place in the digital category at the Colorado State Fair art competition last September, and which the producer spent 80 hours refining into the final product.

"We can consider in this case that the user had a major role and that there is room for copyright," explains Biro, speaking of the efforts made in "monitoring, selection and analysis."

Thus, AI products will follow the path taken by photography, which remained a product of a tool rather than a business until a ruling by the Court of Justice of the European Union in 2011 recognized photographers as having “creative choices”.