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“This isn’t going to stop, art is dead, dude. It’s over. A.I. won. Humans lost.”
Jason Allen’s A.I.-generated work, “Théâtre D’opéra Spatial”
Obsah obrázku patro, interiér, budova, krb Popis byl vytvořen automaticky
Jason M. Allen via Midjourney

Colorado State Fair, 1. místo, kategorie digitální umění

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Artificial intelligence and intellectual property law
Matěj Myška
Obsah obrázku text Popis byl vytvořen automaticky

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Resources used
̶European Commission, Directorate-General for Communications Networks, Content and Technology,
Hartmann, C., Allan, J., Hugenholtz, P., et al., Trends and developments in artificial intelligence
: challenges to the intellectual property rights framework : final report, Publications Office,
2020, https://data.europa.eu/doi/10.2759/683128 = Report
̶Guadamuz, Andres, A Scanner Darkly: Copyright Infringement in Artificial Intelligence Inputs and
Outputs (February 26, 2023). Available at SSRN: https://ssrn.com/abstract=4371204 or
http://dx.doi.org/10.2139/ssrn.4371204 = Guadamuz, 2023
̶Guadamuz, Andres, Do Androids Dream of Electric Copyright? Comparative Analysis of Originality in
Artificial Intelligence Generated Works (June 5, 2020). Intellectual Property Quarterly, 2017 (2),
Available at SSRN: https://ssrn.com/abstract=2981304
̶
̶

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Topic mapping
̶Protection of AI
̶AI programme
̶Invention
̶Protection of AI creations
̶“Works“
̶Databases
̶Object of rights related to copyright
̶??? Sui generis proteciton
̶“Invetions“
̶IPR infringement by AI
̶Training AI
̶Creations AI
̶

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AI specification

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Understanding of AI
(MYŠKA, Matěj a Jan ZIBNER. Umělá inteligence: výzva autorství. Iurium Scriptum. Olomouc: Nugis
Finem, 2019, roč. 2019, č. 1, s. 1-18. ISSN 2570-5679.)
̶Activity
̶Machine intelligence
̶Turing
̶Oblast zkoumání
̶Science field – Functioning of non-human entities and computational capabilities
̶Nilsson
̶Software
̶Machine
̶Komuves, Schafer
̶
̶“computer-based systems that are developed to mimic human behaviour”
̶“discipline of computer science that is aimed at developing machines and systems that can carry
out tasks considered to require human intelligence, with limited or no human intervention.”
̶“systems that focus on solving concrete application problems”
[Repport]
̶
̶
̶

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AI as Technology
̶Supervised / Unsupervised learning
̶Transformative / Generative AI (variational autoencoders, (VAEs), autoregressive models,
generative adversarial networks (GANs), diffusion models)
̶„…common misconception that a generative operation is akin to putting together a collage of
pre-existing images“, Guadamuz, 2023, s. 7
̶„Just as with other generative models, the output is not an exact replica of the training data, it
is a statistical approximation of it.“ Ibid., s. 9
̶„This is vital in understanding the issue of generating outputs, training models do not hold every
piece of data in their training, they hold data representations clustered into similar works.“
Ibid., s. 9
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Protection of AI

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Ochrana AI
̶Copyright law
̶Computer program – original
̶But not: programming language, data, graphical user interfaces, methods, algorithms, functionality
̶
̶Patent law (EPO – EPC)
̶Patentable subject-matter (CP per se excluded! Art. 52(2) EPC)
Computational models and algorithms – excluded – non-technical character
E.g. classification of text documents (T 1358/09)
BUT computer-implemented invention
Technical effect - the use of a neural network in a heart-monitoring apparatus for the purpose of
identifying irregular heartbeats makes a technical contribution. The classification of digital
images, videos, audio or speech signals based on low-level features (e.g. edges or pixel attributes
for images) are other typical technical applications of AI
(https://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_ii_3_3.htm)
̶Novelty, the result of an inventive step, industrial applicability

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Protection of AI creations
https://www.youtube.com/watch?v=jnQ0zEQPu_A

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Ochrana výtvorů AI
̶Creative process (Report)
̶conception
̶execution, and/or
̶finalisation (or redaction)
̶Two basic questions:
̶Is it a work?
Who is the author?

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International Law
̶Art. 2: (1) RBC
̶'The expression 'literary and artistic works' shall include all creations in the literary,
scientific and artistic domain, whatever may be the mode or form of their expression...'
Original...
̶Human intellectual endeavor or creativity
HOWEVER, it does not exclude a work created by technical means
̶DOES NOT DEFINE THE AUTHOR autora ALE fyzická osoba – čl. 6b – moral right
̶PEOPLE NOT MACHINES [Ginsburg]
̶Human rights argument: Universal Declaration of Human Rights - Art. 27 odst. 2
̶Everyone has the right to the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author.

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EU Law
̶2006/116/EC - work within the meaning of the RBC
CJEU > Concept of the work – RBC [Levola Hengelo, bod 39]
̶CJEU Infopaq, Levola Hengelo, Funke Medien
̶author's own intellectual creation - the holy mantra

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Czech Law
̶§ 2 CCC: (1) The subject of copyright is a literary and other artistic work and a scientific work
that is a unique result of the author's creative activity and is expressed in any objectively
perceivable form, including electronic form, permanently or temporarily, regardless of its scope,
purpose or significance (hereinafter referred to as the "work").
̶§ 5 CCC: (1) The author is the natural person who created the work.

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SPOILER ALERT: The International Association for the Protection of Intellectual Property
̶AIPPI World Congress London, September 2019, a Resolution
̶AI generated works should only be eligible for protection by copyright if there is human
intervention in the creation of the work, and provided that the other conditions for protection are
met. AI generated works should not be protected by copyright without human intervention.
̶In the case of genuine copyright protection for a work generated by AI the protection regime
should be identical to other works protected by copyright. This is true in particular for economic
rights, moral rights, term of protection, exceptions and limitations, and initial ownership.
̶AI generated works may be eligible for protection through a related right, even where there is no
human intervention. AI generated works should not be precluded from obtaining protection by
existing related rights on the basis they are AI generated, and should obtain that protection as
long as they meet the required criteria for obtaining protection.
̶As AI is still developing, it is too early for AIPPI to take a position on the question of whether
AI generated works not covered by such existing protection should be eligible for exclusive rights
protection as a related right.
̶

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Conceptual features of a work of authorship (EU) (four-step test)
1. Domain test (?)
̶Creation - literature, science, art
it is not very clear whether it actually applies (FAPL - a football match has been excluded from
copyright protection because it is not original)
2. Human intellectual effort
̶It is not explicitly stated, but "anthropocentric" regulation
̶CJEU - The author must make creative choices [Painer, 90], reflection of the author's personality
[Cofemel, 30]
̶Luksan, Reprobel - the rights guaranteed by the InfoSoc Directive belong to the author-human
entity, not to the legal entity
̶AG Trstenjak [Painer, 121] - art. 6 term directive – „only human creations are therefore
protected, which can also include those for which the person employs a technical aid, such as a
camera“.
̶

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Conceptual features of a work of authorship (EU) (four-step test)
3. Originality/Kreativity
̶the author's own intellectual creation - i.e. not copied
the author's own intellectual creation - that is, the original
̶it reflects the personality of its author, while being an expression of his decisions made on the
basis of his creative freedom [Cofemel, 30 > Painer, Renckhoff]
Literary work [Infopaq, 45]: "Only the selection, arrangement and combination of these words enable
the author to express his creative spirit in an original way and to achieve a result which
constitutes an intellectual creation."
it is not an artistic/aesthetic value/quality [Midjourney!]
̶The economic cost, even 'skill and labour', do not justify protection [Football Dataco, 42; Funke
Medien, 23]
̶

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Conceptual features of a work of authorship (EU) (four-step test)
̶Restrictions on creative choice - “free and creative choices“
̶rule-based
style is taken out (pastiche?), not procedures, methods, ideas, rules of the game (football),
Football Dataco - creation (structures) of the database: technical considerations, rules or
constraints that leave no room for creative choices
̶technical/functional
[BSA, 49-50] - indissociable idea and expression
̶informational
descriptiveness - expression determined by content (military reports Funke Medien)

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Conceptual features of a work of authorship (EU) (four-step test)
̶Painer – use of technology and creative process
90      As regards a portrait photograph, the photographer can make free and creative choices in
several ways and at various points in its production.
̶91      In the preparation phase, the photographer can choose the background, the subject’s pose
and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view
and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from
a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer
software.
̶92      By making those various choices, the author of a portrait photograph can stamp the work
created with his ‘personal touch’.
̶93      Consequently, as regards a portrait photograph, the freedom available to the author to
exercise his creative abilities will not necessarily be minor or even non-existent.
̶94      In view of the foregoing, a portrait photograph can, under Article 6 of Directive 93/98,
be protected by copyright if, which it is for the national court to determine in each case, such
photograph is an intellectual creation of the author reflecting his personality and expressing his
free and creative choices in the production of that photograph.
̶manifest itself at different stages of the process > even the concept can be original and
therefore protected - preparatory conceptual materials ABSOLUTELY CRUCIAL CONSIDERATION
computer-based code is protectable
+ low level of originality

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Conceptual features of a work of authorship (EU) (four-step test)
̶Report, p. 74
̶We may conclude from the jurisprudence of the CJEU that for an AI-assisted output to pass the test
of originality/creativity it is sufficient that the output be the result of creative choices. These
choices may occur at several stages of the creative process: conception, execution, and/or
finalisation (or redaction). As we will discuss in some depth later, the Court’s case law therefore
does not rule out a finding of originality in cases where the (human-authored) design is executed
by an AI system without any further human intervention.
̶

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Conceptual features of a work of authorship (EU) (four-step test)
4. Expression
̶Creative freedom/activity must be expressed in the work, so ideas cannot be protected only
(Infopaq, 45; BSA, 50)
̶causal relationship creative act => expression
general authorial intent > refers to the concept of the work
criterion „sufficient precision and objectivity“ - Levola Hengelo - taste of cheese NO

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Conceptual features of a work of authorship (EU) (four-step test)
̶Report, p. 76
̶As long as the output reflects creative choices by a human being at any stage of the production
process, an AI-assisted output is likely to qualify for copyright protection. This is true even if
the AI system has played a significant or even predominant role in the entire creative process.

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Application on AI creations
̶Step 1 – Production in literary, scientific or artistic domain
̶"archetypal production"
no problem
̶Step 2 – Human intellectual effort
̶Painer - works can be created using tools/machines
There is always human intervention

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Application on AI creations
̶Step 3 – Originality/creativity (creative choice)
̶The most important criterion
conception, execution, redaction
̶Conceptiion/preproduction > „creation“ of AI
̶Execution - the creation of creations itself - AI is dominant
Redaction - "post-production" - Zarya! (see below)
̶„almost ready to use“
̶Selection only? (4 Midjourney pictures)
̶ „ready-made“ objects – Marcel Duchamp
̶Kummer - Presentation theory
"personal selection"

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Aplikace na výtvory AI
Obsah obrázku interiér Popis byl vytvořen automaticky
https://www.tate.org.uk/art/artworks/duchamp-fountain-t07573

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Application on AI creations
̶"This leaves both the design choices in the conception phase, some calibration in the execution
phase, and the editing and post-production choices at the redaction phase for human authors."
Report, s. 81
̶“Copyright doctrine and case law lend support to our conclusion that the production of an artefact
executed by a largely autonomous AI system could qualify as a work protected under EU copyright law
on condition that a human being initiated and conceived the work and subsequently redacted the
AI-assisted output in a creative manner. That is to say, mere human intervention at the conception
and redaction stages could suffice for copyright protection.“ Report, s. 82

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Application on AI creations
̶„The human input as regards the creation of machine generated programs may be relatively modest,
and will be increasingly modest in the future. Nevertheless, a human ‘author’ in the widest sense
is always present, and must have the right to claim ‘authorship’ of the program”.
̶Explanatory Memorandum to Directive Draft L 1989 OJ. (C 91) 4, p. 21.

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Aplikace na výtvory AI
Step 4 – Expression
̶General authorial intent
But where to identify creative choice/expression?
̶ChatGPT-3, Midjourney, Stability

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USA: A Recent Entrance to Paradise
Obsah obrázku text, strom, rostlina, les Popis byl vytvořen automaticky
Simon Thaler
https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf

Steven Thaler

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USA: Zarya of the Dawn
Obsah obrázku text, osoba, snímek obrazovky Popis byl vytvořen automaticky

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Kris Kashtanova

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Obsah obrázku text, osoba, pózování, snímek obrazovky Popis byl vytvořen automaticky
https://copyright.gov/docs/zarya-of-the-dawn.pdf

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Obsah obrázku text, osoba, pózování, snímek obrazovky Popis byl vytvořen automaticky
https://copyright.gov/docs/zarya-of-the-dawn.pdf

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Author and authorship
̶KDO? The one who realizes creative activity, freedom of choice and whose creativity is expressed
by the creation (work)
Art. 2 para. 1 SoftD
̶AI creator, data „producer“, user, AI?
Prompt > “player of the game"
̶Creator of the AI (system)
̶But it must be a work – but he certainly did not anticipate anything of the kind – in the context
of what it creates
Is that a prompt derivative work?
̶Co-authorship?
̶By default, however, there will be no cooperation - it must be in order to be protected
The Next Rembrandt
̶Allocation of authorship/copyright ownership
̶Commercial AIaaS > economically unsuitable

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Current contractual regulation
̶ChatGPT (https://openai.com/policies/terms-of-use) & Dall-E
̶Art. 3 Content
̶(a) Your Content. You may provide input to the Services (“Input”), and receive output generated
and returned by the Services based on the Input (“Output”). Input and Output are collectively
“Content.” As between the parties and to the extent permitted by applicable law, you own all Input,
and subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title
and interest in and to Output. OpenAI may use Content as necessary to provide and maintain the
Services, comply with applicable law, and enforce our policies. You are responsible for Content,
including for ensuring that it does not violate any applicable law or these Terms.
̶(b) Similarity of Content. Due to the nature of machine learning, Output may not be unique across
users and the Services may generate the same or similar output for OpenAI or a third party. For
example, you may provide input to a model such as “What color is the sky?” and receive output such
as “The sky is blue.” Other users may also ask similar questions and receive the same response.
Responses that are requested by and generated for other users are not considered your Content.
̶Don’t mislead your audience about AI involvement. https://labs.openai.com/policies/content-policy
̶

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Current contractual regulation
̶Art. 4 Rights You give to Midjourney
̶By using the Services, You grant to Midjourney, its successors, and assigns a perpetual,
worldwide, non-exclusive, sublicensable no-charge, royalty-free, irrevocable copyright license to
reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and
distribute text, and image prompts You input into the Services, or Assets produced by the service
at Your direction. This license survives termination of this Agreement by any party, for any
reason.
̶Subject to the above license, You own all Assets You create with the Services, to the extent
possible under current law. This excludes upscaling the images of others, which images remain owned
by the original Asset creators. Midjourney makes no representations or warranties with respect to
the current law that might apply to You. Please consult Your own lawyer if You want more
information about the state of current law in Your jurisdiction. Your ownership of the Assets you
created persists even if in subsequent months You downgrade or cancel Your membership. However, You
do not own the Assets if You fall under the exceptions below.

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Current contractual regulation
̶If You are an employee or owner of a company with more than $1,000,000 USD a year in gross revenue
and You are using the Services on behalf of Your employer, You must purchase a “Pro” membership for
every individual accessing the Services on Your behalf in order to own Assets You create. If You
are not sure whether Your use qualifies as on behalf of Your employer, please assume it does.
̶If You are not a Paid Member, You don’t own the Assets You create. Instead, Midjourney grants You
a license to the Assets under the Creative Commons Noncommercial 4.0 Attribution International
License (the “Asset License”). The full text is accessible as of the Effective Date here:
https://creativecommons.org/licenses/by-nc/4.0/legalcode.
̶

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Current contractual regulation
̶Please note: Midjourney is an open community which allows others to use and remix Your images and
prompts whenever they are posted in a public setting. By default, Your images are publically
viewable and remixable. As described above, You grant Midjourney a license to allow this. If You
purchase a "Pro" plan, You may bypass some of these public sharing defaults.
̶If You purchased the Stealth feature as part of Your “Pro” subscription or through the previously
available add-on, we agree to make best efforts not to publish any Assets You make in any situation
where you have engaged stealth mode in the Services.
̶Please be aware that any image You make in a shared or open space such as a Discord chatroom, is
viewable by anyone in that chatroom, regardless of whether Stealth mode is engaged.

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Current contractual regulation
̶DeepL (https://www.deepl.com/en/pro-license?tab=pro)
̶7.4 All rights regarding the Content, Processed Content and/or Customer Training Data remain with
Customer. However, Customer grants DeepL the non-exclusive worldwide right to use the Content
and/or Customer Training Data solely in order to provide DeepL’s services to Customer. In
particular, Customer grants to DeepL the right to temporarily store, modify, process, translate and
transmit the Content and/or Customer Training Data, and to sublicense the foregoing rights to its
subcontractors, to the extent required to provide the services set out in this Agreement.
̶7.5 DeepL does not assume any copyrights to the translations made by Customer using the Products.
In the event that the translations made by Customer using the Products are deemed to be protected
under copyright laws to the benefit of DeepL, DeepL grants to Customer, upon creation of such
translations, all exclusive, transferable, sublicensable, worldwide perpetual rights to use the
translations without limitation and for any existing or future types of use, including without
limitation the right to modify the translations and to create derivative works.

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Current contractual regulation
̶Stable Diffusion (https://stablediffusionweb.com/license)
̶Art. 6 The Output You Generate. Except as set forth herein, Licensor claims no rights in the
Output You generate using the Model. You are accountable for the Output you generate and its
subsequent uses. No use of the output can contravene any provision as stated in the License.
̶Appendix A

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Rightholders
̶Copyfraud? Presumption of authorship
̶+ UK / IRE regulation
̶„Computer-generated works“
̶„Person who undertook the arrangements necessary for its creation“
̶Is that even copyright?
̶

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Protection by rights related to copyright and database rights?
̶There is no condition of originality, they are transferable and the holder can be anyone
1960 Rome Convention a 1996 WPPT, Directive 2006/115/ES, InfoD
̶audio recording/phonogram recording – user of the system
̶GA Szpunar, Pelham, 30: A phonogram is not an intellectual creation consisting of a composition of
elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is
protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation
itself. Consequently, although, in the case of a work, it is possible to distinguish the elements
which may not be protected, such as words, sounds, colours etc., from the subject-matter which may
be protected in the form of the original arrangement of those elements, such a distinction is not,
however, possible in the case of a phonogram. A phonogram is not made up of small particles that
are not protectable: it is protected as an indivisible whole. Moreover, in the case of a phonogram,
there is no requirement for originality, because a phonogram, unlike a work, is protected, not by
virtue of its creativeness, but rather on account of the financial and organisational investment.
̶DTTO
̶Rights of broadcasters, rights of producers of audio-visual recordings
Rights of the publisher of a press publication? - imprimatur
̶

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Infringement of IPR by AI
https://www.youtube.com/watch?v=jnQ0zEQPu_A

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Evropská unie
̶Paul Keller (https://openfuture.eu/blog/protecting-creatives-or-impeding-progress/)
̶The European Parliament’s summary published after the adoption of the Directive makes this
explicit by noting that “the co-legislators agreed to enshrine in EU law another mandatory
exception for general text and data mining (Article 4) in order to contribute to the development of
data analytics and artificial intelligence”
̶This analysis is based on the generally accepted understanding that trained ML models do not
contain copies of the works that they have been trained on. While there are studies that show that
in some cases diffusion models can “memorize” works contained in their training data this seems to
be an extreme outlier.
̶DSMD art. 3 and 4
̶

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USA – “software piracy on an unprecedented scale.”
https://www.theverge.com/2022/11/8/23446821/microsoft-openai-github-copilot-class-action-lawsuit-ai
-copyright-violation-training-data
https://www.theverge.com/2023/1/28/23575919/microsoft-openai-github-dismiss-copilot-ai-copyright-la
wsuit

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https://stablediffusionlitigation.com/pdf/00201/1-1-stable-diffusion-complaint.pdf

Three artists are starting a class-action lawsuit against Stability.ai, Midjourney, and DeviantArt
alleging direct copyright infringement, vicarious copyright infringement, DMCA violations,
publicity rights violation, and unfair competition. DeviantArt appears to be included as punishment
for “betrayal of its artist community”, so I will mostly ignore their part in this analysis for
now.
Specifically with regards to the copyright claims, the lawsuit alleges that Stability.ai and
Midjourney have scraped the Internet to copy billions of works without permission, including works
belonging to the claimants. They allege that these works are then stored by the defendants, and
these copies are then used to produce derivative works.
This is at the very core of the lawsuit. The complaint is very clear that the resulting images
produced by Stable Diffusion and Midjourney are not directly reproducing the works by the
claimants, no evidence is presented of even a close reproduction of one of their works. What they
are claiming is something quite extraordinary: “Every output image from the system is derived
exclusively from the latent images, which are copies of copyrighted images. For these reasons,
every hybrid image is necessarily a derivative work.”
Sure, there is some temporary copying at some stage, it is important to remember that LAION doesn’t
copy images either, but there is scraping of images in the training process, but these are not
stored in the model as claimed.

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USA
̶Doe 1 et al v. GitHub et al, Case No. 4:2022cv06823 (N.D. Cal.)
̶Andersen et al v. Stability AI et al, Case No. 3:23-cv-00201 (N.D. Cal.)
̶Getty Images v. Stability AI, Case No. 1:2023cv00135 (D. Del.)
̶Getty Images v Sability AI (England), Case IL-2023-000007
̶

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Art stealing

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Reaction of the artistic community
̶haveibeentrained.com
̶spawning.ai
̶AI opt-out
̶https://news.uchicago.edu/story/uchicago-scientists-develop-new-tool-protect-artists-ai-mimicry
̶Cloaking
̶

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Thank you for your attention!
@matejmyska
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Recommended: John Oliver on AI
̶https://www.youtube.com/watch?v=Sqa8Z