Bachelor Thesis - I6241813

Marta Michalowska
I6241813
Word Count: 8907
Date of submission: 31.05.2023
Supervisor: Constanta Rosca
The Art of Technology – Artificial

Intelligence as an Artist
Law and Technology
1
TABLE OF CONTENT
1. INTRODUCTION........................................................................................................ 3
2. AI.................................................................................................................................. 6
2.1 AUTONOMY CONCEPT OF AI..............................................................................................7
2.2 DIFFERENCE BETWEEN AI-ASSISTED AND AI-GENERATED OUTPUT.................................8
2.3 THE USE OF AI IN ART: BRIEF HISTORY..........................................................................10
3. COPYRIGHT PROTECTION........................................................................................12
3.1 EUROPEAN COPYRIGHT PROTECTION: REQUIREMENTS AND APPLICATION TO AI-
ASSISTED OUTPUTS.................................................................................................................12
A) the scope of the “work” domain...............................................................................13
B) production in the literary, scientific, or artistic domain..........................................15
C) human intellect........................................................................................................16
D) creativity and originality criteria.............................................................................18
E) expressed work.........................................................................................................23
3.2 COPYRIGHT PROTECTION IN THE UK: REQUIREMENTS AND APPLICATION TO AI-
ASSISTED OUTPUTS.................................................................................................................24
3.3 COMPARISON OF EU AND UK LAWS...............................................................................26
4. THE AUTHORSHIP OF AI-ASSISTED OUTPUT....................................................27
4.1 THE DOCTRINE OF AUTHORSHIP UNDER EU LAW...........................................................28
4.2 THE DOCTRINE OF AUTHORSHIP UNDER THE UK LAW...................................................30
4.3 COMPARISON OF EU AND UK LAW.................................................................................31
5. CONCLUSION........................................................................................................... 32
6. BIBLIOGRAPHY....................................................................................................... 34
6.1 PRIMARY SOURCES...........................................................................................................34
6.1.1 International Instruments........................................................................................34
6.1.2 European Instruments..............................................................................................34
6.1.3 National Instruments................................................................................................34
6.1.4 Case law....................................................................................................................34
6.2 SECONDARY SOURCES......................................................................................................36
2
1. Introduction
By combining with processing algorithms and a specific dataset, an Artificial
Intelligence (AI) system familiarizes itself with patterns and various features in
the analyzed data.1 Currently, it might be utilized as a virtual assistant, for
autonomous driving, facial recognition, and in the E-Commerce fields. 2 It can
also be incorporated into the creative process of literary, musical, and artistic
work. In such a case, the algorithm is often trained in a mechanistic way on a
large dataset of existing art. However, not all algorithms used in AI art use this
approach. While some algorithms use solely machine learning to analyze existing
work and identify patterns, others may focus on deep neural networks to create
more realistic work.3
As AI’s significance becomes increasingly evident in various fields,

including art, the interplay between these systems and human involvement has
become a defining factor, shaping the development and application of that
technologies.4 An example of a commercialized AI tool in art is DALL-E created
by OpenAI. In the domain of art, AI’s output can take two forms, where the work
is fully generated by the machine or where it is machine-assisted. 5 The former
refers to a product made entirely by AI without any human intervention. 6
However, according to the European Commission, there are currently no
situations of AI-generated work, and human intervention is still required. 7 In
contrast, the latter involves material human impact, such selecting and preparing
input data used to train the algorithm to ensure unbiased application of the data. 8
Therefore, humans are an integral part of the creation of AI art in the modern
world.
1
CSU Global, How Does AI Actually Work (Colorado State University Global Blog 2021)
2
Xusen Cheng and others, The dark side of AI (Springer 2022) 2
3
Apratim Sahu, Art with AI: Turning photographs into artwork with Neural Style Transfer (Towards Data
Science 2020)
4
John Tasioulas, The role of the arts and humanities in thinking about artificial intelligence (AI) (Ada
Lovelace Institute 2021)
5
Kevin Roose, AI-generated Art is Already Transforming Creative Work (New York Times, 2022)
6
AIContentfy team, AI-generated content for content marketing and SEO (AIContentfy 2023)
7
Christian Hartmann and others, Trends and Developments in Artificial Intelligence: Challenges to the
Intellectual Property Rights Framework (The Joint Institute for Innovation Policy 2020) 80
8
WIPO, Conversation on Intellectual Property (IP) and artificial intelligence (AI) (Third Session, World
Intellectual Property Organization 2020) 5
3
Given the increasing fascination with artificial intelligence and its
capabilities, there will continue to be a presence of graphical tools that utilize
algorithms in the market. Consequently, it becomes crucial to address the matter
of protecting intellectual property rights for art generated by AI. However, this
raises several challenges and concerns. One particular concern is the copyright
protection of AI-generated art, especially when the algorithm is trained using
preexisting artworks, which brings into question the concept of originality.
Therefore, the main research question this paper will address is whether AI
output, resulting in the creation of art, can be protected by copyright in the
European Union, in comparison to the UK system.
The research question will be examined using a comparative doctrinal

analysis approach to demonstrate the difference between the civil and common
law systems. The former would focus on EU law, having as a support Dutch and
French legislations to illustrate, as examples, distinct approaches to copyright
law between these member states from more narrowed-down perspectives. The
latter would reflect the UK law. Such a comparison would allow displaying the
dissimilarities of those systems in how they resolve issues of copyright
protection over AI outputs despite their collective connection to international
instruments. Additionally, each country has a unique cultural perspective on
intellectual property, hence, it would illustrate how these various views affect
their national legal frameworks.9 French copyright law aims to safeguard the
integrity and attribution of creative works and provides protection for authors. 10
The Netherlands has a more liberal approach, focusing on not only collaborative
creativity but freedom of expression and the exchange of ideas. 11 Besides that,
the protection of AI art can impact the economy, especially where industries rely
on such technologies. Therefore, by comparing the legal frameworks of these
countries, there is a potential insight into how copyright protection of AI output
may influence economic growth in each of them.
9
Dentos, AI generated images and copyright: when does a computer become an artist? And are the rights of
human artists being respected? (2023), https://www.dentons.com/en/insights/articles/2023/january/27/ai-
generated-images-and-copyright accessed May 2023
10
Casalonga, Copyright in France https://www.casalonga.com/documentation/droit-d-auteur/le-droit-d-
auteur-en-france-230/Copyright-in-France.html?lang=en accessed May 2023
11
Netherlands Enterprise Agency, Copyright (Business.gov.nl), https://business.gov.nl/regulation/copyright/
accessed May 2023
4
For the research paper, the analysis will be based on the following legal
instruments: the Berne Convention,12 and EU Directives from the Intellectual
Property field: InfoSoc,13 DSM,14 Software,15 and Proposal for Regulation of
Artificial Intelligence (AI Act).16 Additionally, the French Code de Law
Propriete Intellectuelle17 as well as the Dutch Copyright Act (Auteurswet)18
would illustrate the national level in more detail. France and the Netherlands are
both EU member states that must comply with EU law. Both countries have a
long history of being at the forefront of intellectual property law as both
contribute significantly to the development of EU copyright law and have been
involved in crucial copyright cases at the EU level. Additionally, they are subject
to the same EU directives and regulations as other member states within the EU.
Therefore, their decisions in the intellectual property field can be considered
crucial and influential for other states. For a comparison, the Copyright, Design,
and Patents Act of 1988 (CDPA) will be used as it is the primary legislation
governing copyright law in the UK.19 Additionally, the paper will support its
justification with the case laws from the EU level, but also from national ones.
Moreover, the secondary sources used for this paper are mainly based on legal
articles, blogs, and literature concerning AI-assisted output and its legitimate
safeguard. Some of the characteristics of a copyrighted work would be referred
to in a real-life case. Thus, the paper will focus on the issue of copyright
protection for AI work by elaborating on the sections “AI”; “Copyright
protection”, and “Authorship of AI-assisted output”.
The paper will begin by defining what is meant by the term “AI”. The
next sub-sections, 2.1 and 2.2, will elaborate on the autonomy concept of AI and
12
Berne Convention for the Protection of Literary and Artistic Works
13
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonization of certain aspects of copyright and related rights in the information society
14
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 201 on copyright and
related rights in the Digital Single Market
15
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal
protection of computer programs
16
Proposal for Regulation of European Parliament and of the Council on a European approach for Artificial
Intelligence (AI Act)
17
Code de la Propriete Intellectuelle (French Intellectual Property Code)
18
Auteurswet (Dutch Copyright Act)
19
Copyright, Designs and Patents Act 1988
5
focus on terms like AI-assisted and AI-generated outputs. In the sub-section 2.3
some historical context in relation to the usage of such systems in art would be
given. Furthermore, the paper will provide, in separate sub-sections, 3.1 and 3.2,
requirements of copyright protection recognized in the EU and UK, and
simultaneously apply these to AI-assisted output examples. Here, the last part,
sub-section 3.3, would focus on the comparison of these two legal systems.
Furthermore, in the next section 4, the paper will examine the concept of
authorship of AI-assisted outputs, first focusing on the EU and later showing the
equivalence in the UK legal system. The last sub-section, 4.3, will compare these
two systems together. The conclusion will entail the key arguments presented
throughout.
2. AI
Artificial intelligence can be defined as a machine’s capability to imitate
performing tasks commonly associated with intelligent beings, such as reasoning,
learning, and decision-making.20 The word “intelligence” refers to the ability to
acquire knowledge and analyze the issue at hand to later apply it to different
solutions.21 In general, the AI recognizes various patterns and similarities in the
dataset. As it executes its tasks very rapidly, its aim is to do more efficiently
what humans can do.22
AI is categorized into two types: strong AI and weak AI. The former is
mainly designated to handle various circumstances without human interference. 23
An example of such a system can be found in self-driving cars where there is no
for a driver to control the car. The latter form of AI is designated to execute a
specific job, meaning tasks within a defined context. 24 This system is much
simpler and is single-task oriented, such as with personal assistants like Siri on
20
Jack Copeland, artificial intelligence (Britannica 2023)
21
ibid
22
Rajiv Gandhi, Artificial Intelligence, Does it Has Ability to mimic Human Intelligence (ResearchGate
2020) 1
23
WIPO, Conversation on Intellectual Property (IP) and artificial intelligence (AI) (Second Session, World
Intellectual Property Organization 2020)
24
ibid
6
iPhones or graphical tools like DALL-E.25 The approach is to classify AI systems
based on their degree of autonomy. 26 Currently, there are two types of output that
have become increasingly common in various industries, such as scientific
research and creative arts: one that is fully AI-generated and one where AI acts
as an assistant.27
2.1 Autonomy concept of AI

The concept of AI autonomy refers to the extent of involvement in the
independent decision-making and action-taking processes of an AI system. In
general, full autonomy is achieved when an AI can decide and take sufficient
steps without human interaction.28 In the context of AI-assisted outputs, the
concept refers to the level of assistance during the creation process of work. 29
Nevertheless, in this case, the final product is still considered to be ultimately
controlled by a natural person whereas an AI system solely assists an artist in
generating specific artwork by suggesting themes, and colors based on analyzed
data. Despite these steps, necessary adjustments are still made by the natural
person, who also selects the dataset on which AI is trained. The autonomy
concept will determine the level of human involvement in the creative process,
hence ascertain whether the output can qualify for current copyright protection
and how authorship is determined for such works.30
The concept of autonomy in machine learning algorithms refers to the

ability of an AI system to learn and make decisions without human intervention.
A machine learning model can be seen as a system of collecting information that
has been trained on other sets of data to imitate the way that humans learn. 31
25
Rajiv Gandhi, Artificial Intelligence, Does it Has Ability to mimic Human Intelligence (ResearchGate
2020) 1
26
European Council and Council of the European Union, Artificial Intelligence Act: Council calls for
promoting safe AI that respects fundamental rights (consilium.europa.eu 2022)
27
Gil Appel, Juliana Neelbauer, and David A. Schweidel, Generative AI Has an Intellectual Property
Problem (Harvard Business Review 2023)
28
ibid
29
WIPO, Conversation on Intellectual Property (IP) and artificial intelligence (AI) (Third Session, World
Intellectual Property Organization 2020) 5
30
Hartmann C and others, Trends and Developments in Artificial Intelligence: Challenges to the
31
International Business Machines Corporation, What is machine leraning? (IBM)
<https://www.ibm.com/topics/machine-learning> accessed May 2023
7
While the AI-assisted output can be mistaken as being made by a human author,
it is generated with the assistance of a machine learning model that is trained for
the sole purpose of generating the final product in a certain form. 32 In the context
of graphic tools, autonomy can indicate the ability of the AI to learn from
previous inputs and create designs without requiring constant supervision from a
human designer. Machine learning systems, based on the data they have
identified, can draw conclusions from previous outputs to create new ones
without being specifically programmed.33 Such may be used to analyze various
patterns to classify different elements of a design, like shape, color, or even the
texture of the work.34
2.2 Difference between AI-assisted and AI-generated output

AI-generated works refer to the generation of output by AI with no human
impact. Here, the algorithm, based on a large amount of data, is so advanced that
it can change its behavior to better respond to unforeseen circumstances. 35 In
contrast, AI-assisted output is generated in operations where there is material
human intervention. Such output can be interpreted as production generated in
part by or only with the assistance of an AI, where a human provides some initial
input or direction, which can vary from conceptual input like describing the
desired subject matter, to training data selection involving choosing a collection
of artwork that AI can learn from.36 An example of this is content
recommendations in online advertisements. The AI system assists in the process
by making use of its analysis capabilities to suggest relevant content options.
However, the final decision and implementation of these recommendations are
made by human professionals.
AI-generated and AI-assisted outputs have the potential to impact the

way human beings create and consume art. While some argue that such
32
Murgitroyd, Who owns the copyright in AI-generated art? (Murgitroy blog 2022)
33
Pratap Devarapalli, Machine Learning to Machine Owning: Redefining the Copyright Ownership from
the perspective of Australian, US, UK and EU law (European Intellectual Property Review 2018) 2
34
35
Nick Routley, What is generative AI? An AI explains (World Economic Forum 2023)
36
P. Bernt Hugenholtz and Joao Pedro Quintais, Copyright and Artificial Creation: Does EU Copyright
Law Protect AI-Assisted Output? (Springer 2021) 20
8
developments could lead to a loss of originality in the creative process, they are
also preserved as an opportunity to explore new forms of expression. 37 These
technologies can automate various repetitive tasks, freeing up individuals to
focus on more complex tasks that require human expertise and decision-
making.38 For example, both types could be used to mechanize mundane
routines, such as AI lawyer that qualifies the value of the lawsuit, 39 allowing
human actors to give attention to more in-depth work. 40 The concept of autonomy
in AI determines the extent to which an algorithm can learn and make decisions
without human supervision.41
There are three types of machine learning: i) supervised; ii)

unsupervised; and iii) semi-supervised. The first one involves training a model
on labeled data, where the correct outputs are already known. By minimizing
during training, the difference between the predicted output and the correct one,
the model learns to make accurate predictions on new data. 42 A good example
would be speech recognition or image classification. The second one, on the
other hand, involves training on unlabeled data without any specific target
variable to predict. It aims to identify patterns in the dataset, such as grouping
similar and unusual data points.43 Such learning can be seen in clustering. By
automatically identifying meaningful groups within large datasets, clustering
algorithms provide valuable insights and help in making data-driven decisions.
The final one combines two approaches, where a model is trained on both,
labeled and unlabeled sets of data and is used to guide a model towards making
accurate predictions on unlabeled data.44
37
Ryan Merkley, On AI-Generated Works, Artists, and Intellectual Property (Lawfare 2023)
38
Joe McKenedrick, Yes, Artificial Intelligence Has A Creative Side, Sort Of (Forbes, 2023)
39
Josh Kern, AI in Law: Transforming Legal Practices (Clio 2023) 5
40
Kai-Fu Lee, AI's real impact? Freeing us from the tyranny of repetitive tasks (Wired 2019)
41
Joe McKendrick and Andy Thurai, AI Isn’t Ready to Make Unsupervised Decisions (Harvard Business
Review 2022)
42
43
ibid
44
ibid
9
Deep neural networks are a type of machine learning algorithm, which in
recent years have become a predominant one for art generation. 45 The process
begins with data selection using a machine learning algorithm to understand the
patterns and styles present in the art. Subsequently, training takes place by
exposing the AI tool to images in the data set, enabling it to learn the common
features of the art through a neural network.46 Essentially, the neural network acts
as a model that emulates the information-processing mechanism of the human
brain.47 The AI tools are trained to identify and replicate the prevalent features of
the art, facilitating the generation of new images that exhibit similarity to those
present in the dataset. Throughout the training process, adjustments are made to
the neural network to enhance the accuracy of AI and produce more realistic and
high-quality output.48 This is particularly exemplified by Generative Adversarial
Networks (GANs), a type of neural network architecture where one part, a
generator, creates new content and the other, a discriminator, evaluates its
authenticity that leads to improved output.49
Currently, AI graphic tools are designated to create alongside human

designers, by only assisting in the creative process rather than replacing a natural
person’s creativity.50 There have been numerous instances where artificial
intelligence is in art, such as composing music (Artificial Intelligence Virtual
Artist generating classical music),51 writing a poem or a novel (ChatGPT),52 or
even creating a text-based game (AI Dungeon).53 Similarly, a highly developed
AI system “Watson”, was employed as a tool to arrange the visuals in a horror
thriller movie. However, human impact is still needed to supervise the creative
aspect of the film.54 Therefore, the concept of autonomy, focusing mainly on AI-
45
Amirhossein Tavanaei and others, Deep learning in spiking neural networks (Elsevier 2019) 50
46
Ibid 54
47
Jonathan Johnson, What’s a Deep Neural Network? Deep Nets Explained (bmc blog 2020)
48
Rohit Kundu, AI -Generated Art: From Text to Images & Beyond [Examples] (v7 2022)
49
Ana Ramalho, Intellectual Property Protection for AI-generated Creations (Hardcover 2021) 12
50
Gayan Kodithuwakku, AI in Art and Creativity: How Artificial Intelligence is Changing the World of Art
(Nerd For Tech 2023)
51
AIVA, https://www.aiva.ai.
52
OpenAI. 'ChatGPT'. https://chat.openai.com/chat.accessed March 2023
53
AI Dungeon, https://www.aidungeon.io.
54
Winston Cho, AI-“Assisted” Works Are Now Open to Copyright Protection, Raising Questions for
Hollywood (The Hollywood Reporter 2023)
10
assisted outputs in art, raises questions about copyright protection, as human
involvement in the creative process is still necessary despite the use of AI tools.
The evolution of AI has resulted in machines that can identify and duplicate
various artistic styles, resulting in new possibilities in art creation.55
2.3 The use of AI in art: brief history

Art, particularly during the Renaissance, has played an essential role in human
culture. With the advent of AI tools, significant changes have occurred in terms
of how art is created, preserved, and restored. As early as the 1960s, artists were
using computers to generate art.56 The first computer-generated art was created
by programming machines to produce simple geometric shapes and patterns.
Such developments demonstrated the potential of technology as an artistic tool. 57
Consequently, a later created machine, AARON, was driven by an AI that could
generate artwork. The system was able to generate innovative solutions by
analyzing a given dataset, using a predetermined set of rules and parameters.58
AI tools continued to evolve and become more sophisticated, hence

through time machine learning algorithms became better at creating art beyond
simple geometric shapes.59 Therefore, technological advances resulted in
machines with the ability to learn and improve from the previous examples to
uphold their own decisions. They became more relevant in the process of
creation than just being used as a tool like a paintbrush. 60 By analyzing a vast
dataset, machines can identify and duplicate various artistic styles. New
possibilities in creation started to include blending different techniques or going
beyond the traditional form of art such as in 3D paintings.61
AI-assisted art has become increasingly popular in recent years. Forms,

such as algorithmic poetry, generative music, and visual art raise important legal
55
Editorial Aela, Artificial Intelligence: How AI is Changing Art (Aela 2023)
56
Mark Anderson, Brief History of Digital Art (Wold Wide News 2023)
57
Fabian Offert, The Past, Present, and Future of AI Art (Gradient 2019)
58
ibid
59
ibid
60
the perspective of Australian, US, UK and EU law (European Intellectual Property Review 2018)
61
Alex McFarland, 10 Best AI Art Generators (Unite.ai May 2023)
11
and ethical questions. An example of a piece of art generated with the assistance
of AI is “The Next Rembrandt”, aimed to create a new painting in the style of the
Dutch artist, Rembrandt van Rijn. The AI model crafted each brushstroke,
shadow, and nuance, to capture the essence of Rembrandt’s technique,
simultaneously pushing the boundaries of digital art. The uncertainty refers to
who owns the copyright over such art. Additionally, such developments can lead
to issues of fairness, as AI systems may reflect the biases of the data used to train
them.62 Due to the lack of recognition for copyright protection of AI-generated
works in the modern EU legal framework, the paper will center on AI-assisted
outputs.
3. Copyright protection
According to the EU Commission, AI-assisted works, resulting from a
combination of the creative input of the human being and the output generated by
the AI system, are considered eligible for existing copyright protection. 63
Therefore, the EU’s position implies that only outputs demonstrating human
creativity can be safeguarded,64 hence focuses on “author’s rights” protecting
creators' expression of their personalities. In the UK, copyright is primarily seen
as an economic tool that rewards creativity. Besides this difference, both
copyright systems are centered on human creativity. 65 The section will examine
and compare the copyright frameworks in the EU and UK concerning the legal
aspects of AI-assisted art. It will explore the role of human involvement, original
criteria, and the impact of AI technology on the creative process.
3.1 European copyright protection: requirements and application to AI-

assisted outputs
The European Union recognizes a set of laws and regulations regarding
copyright protection that aim to safeguard the economic rights of creators, such
62
Dex Parra and Scott R. Stroud, The Ethics of AI Art (The University of Texas at Austin, Center for Media
Engagement 2023)
63
Pieter De Grauwe and Sasha Gryspeerdt, Artificial Intelligence (AI): The qualification of AI creations as
“works” under EU copyright law (Gevers 2022)
64
Christian Hartmann and others, Trends and Developments in Artificial Intelligence: Challenges to the
65
Intellectual Property Office, Artificial intelligence call for views: copyright and related rights (Gov.uk
2021)
12
as reproduction while trying to ensure fair use of their work.66 Within the EU,
copyright protection is automatically granted upon the creation of original work.
There is no need for registration.67 Nevertheless, to gain such safeguard, the
output needs to be fixed in a) a work, b) which falls under the literary, scientific,
or artistic domain, c) reflects human intellect, d) fulfills creativity and originality
criteria, as well as e) is expressed in various forms.
A) the scope of the “work” domain

One of the essential concepts in EU copyright law is the interpretation of the
“work” that is eligible for protection. According to Article 2(1) of the Berne
Convention for the Protection of Literary and Artistic Works, the term is defined
as a product of the original creative activity, irrespective of the form of its
expression.68 That definition would form the basis for copyright protection. It has
become an integral part of the EU legal order since the provision has been
incorporated by reference into Article 9(1) of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS Agreement) 69 and Article 3 of the
WIPO Copyright Treaty (WCT).70 Moreover, a requirement is also stipulated at
the national level, Articles 1 of the Auteurswet 71 and L-112-2 of the Code,72 that
is in line with international criteria.
Similarly, Article 1 of the Directive 2006/116/EC on the term of

protection of copyright and certain related rights illustrates a “work” as original
intellectual creation expressed in material form in the works of literature,
science, and art.73 Among others, such “work” includes books, music
soundtracks, films, and photography. Additionally, Article 2(a) of Directive
66
Berne Convention for the Protection of Literary and Artistic Works, article 9; Directive 2001/29/EC of the
European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of
copuright and related rights in the information society, article 2
67
European IP Helpdesk, Your Guide to IP in Europe (European IP Helpdesk) 33 < https://intellectual-
property-helpdesk.ec.europa.eu/system/files/2021-01/EU-IPR-Guide-IP-in-Europe-EN.pdf> accessed date
May 2023
68
Berne Convention for the Protection of Literary and Artistic Works, article 2(1)
69
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), article 9(1)
70
WIPO Copyright Treaty, article 3
71
Auteurswet (Dutch Copyright Act), article 1
72
Code de la Propriete Intellectuelle (French Intellectual Property Code), Book I, Title I, Chapter II, article
L-112-2
73
Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term
of protection of copyright and certain related rights, page 12, article 1
13
2001/29/EC74 provides that protection of the author’s right to authorize or
prohibit reproduction is intended to cover “work”. 75 Therefore, it is evident that
the EU focuses on the author’s rights. Moreover, in the Levola Hengelo case, it
was clarified that copyright law requires work to be expressed in a manner that is
identifiable with sufficient precision and objectivity. 76 According to Football
Association Premier League Ltd v. QC Leisure case, copyright protection shall
harmonize the author’s right of communication to the public, covering any form
of work, by wire or wireless means. 77 Therefore, in EU copyright law, the work
must be the result of an innovative effort that is fixed in different forms such as
canvas, in compositions, or even digital files. The concept is crucial as it clarifies
the scope of copyright protection and determines the rights granted to the
creators of those products.
In the case of Martin Luksan v. Petrus van der Let (Luksan), 78 the Court
of Justice of the EU (CJEU) held that guidance provided at the international level
has become an integral part of the EU legal order. Looking at Article 288 of the
Treaty on the Functioning of the EU (TFEU), the interpretation and application
of the treaties need to be in conformity with the rulings made by the CJEU. 79
Therefore, the Court of Justice is entitled to interpret EU law in line with the
international convention while ensuring its uniform application between Member
States to ensure the proper functioning of the internal market. In the context of
copyright protection, the concept of “work” must be interpreted autonomously
and uniformly throughout the EU.
In addition, several other types of works are protected under EU

copyright law. Looking at Articles art. 3(1) the Database Directive, 80 as well as
74
harmonization of certain aspects of copyright and related rights in the information society, page 10, article
2(a)
75
Case C-5/08, Infopaq International A/S v Danske Dagblades Forening [2009], ECR 2009 I-06569, §33
76
Case C-310/17, Levola Hengelo BV v Smilde Foods BV [2018], §31-43
77
Case C-403/08, Football Association Premier League and Others [2011], ECR 2011 I-09083, §123
78
Case C-277/10, Martin Luksan v. Petrus van der Let [2012] ,§59
79
Treaty on the Functioning of the European Union, article 288
80
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases, article 3(1)
14
1(3) the Computer Programs Directive,81 software and databases such as video
games or digital art, are also eligible for copyright protection. Despite their lack
of material form, such a safeguard is granted only if these “works” are original,
in the sense that they express the author’s intellectual creation. 82 Additionally,
referring to Articles 6 of the Directive 2006/116/EC 83 and of the DSM Copyright
Directive,84 it was confirmed that visual art, such as photographs, are eligible for
protection if they meet the originality standard. Therefore, the concept of “work”
is not fixed or immutable, and the EU copyright legal system allows for
unconventional products.
The example of “The Next Rembrandt” painting would be eligible for

consideration for copyright protection under EU law because it is expressed in a
tangible form. The protection extends to various artistic works, including
paintings, drawings, and other visual artworks. “The Next Rembrandt” still
embodies the characteristics of a painting. Nevertheless, it should be noted that
other circumstances in each case, such as the level of originality and the manner
of expression, would also need to be evaluated to determine the extent of
copyright protection granted to computer-generated artworks.
B) production in the literary, scientific, or artistic domain

In the EU, there is a general requirement that “works” be produced within the
literary, scientific, or artistic domain.85 Thus, copyright protection does not
extend to ideas themselves but rather applies to their expression. In other words,
ideas only become eligible for protection once they are fixed in a concrete form
that can be perceived or reproduced, such as a painting or photograph. This
requirement is reflected in various legal frameworks.86
81
protection of computer programs, article 1(3)
82
83
Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term
of protection of copyright and certain related rights, article 6
84
Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 201 on copyright and
related rights in the Digital Single Market, article 14
85
86
WIPO Copyright Treaty, article 2; Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS Agreement), article 9(2); Directive 2001/29/EC on the harmonization of certain aspects of copyright
and related rights in the information society (Infosoc), article 2
15
The CJEU held that copyright protection applies only to the expression
of ideas, not individual words, or phrases, which can be too short or trivial to be
considered original.87 Such a requirement is visible in the national legal systems
of member states. According to Article 1 of the Dutch Copyright Act, the right to
gain copyright protection over its “work” is defined as an exclusive one of the
maker of literary, scientific, or artistic work with a determined list of “works”
under Article 10.88 Similarly, looking at French law, Article L.112-2 of the
French Intellectual Property Code establishes the right to a work falling under the
same domains.89 EU copyright protection applies only to the expression of ideas
within the literary, scientific, or artistic domain, and not to the intention to create
itself. The focus is on the creative expression and the author’s own intellectual
creation rather than the underlying idea.90 Therefore, a “work” must be expressed
in a specific field.
The AI-assisted output must be created in the literary, scientific, or

artistic domain according to Article 2(1) of the Berne Convention, 91 as well as
equivalent articles at the EU level. 92 That includes a list of examples not only of
conventional works such as paintings but also news articles, compositions, or
even geographical maps.93 The outputs generated with the assistance of AI, such
as digital images from natural language descriptions generated by DALL-E, fall
under the artistic domain within the required categories. Additionally, having as
an example a computer-generated piece of art, “The Next Rembrandt”, the
requirement is fulfilled as in its final form, the work was fixed in a 3D painting,
also falling under the artistic domain. 94 Therefore, passing the criteria for AI-
assisted outputs would be unproblematic, assuming that the “domain” in which
87
Case C-5/08, Infopaq International A/S v Danske Dagblades Forening [2009], ECR 2009 I-06569, §37-44
88
Auteurswet (Dutch Copyright Act), articles 1 and 10
89
L-112-2
90
Witzel Erb Backu & Partner Rechtsanwalte mbB, Snapshot: the scope of copyright in European Union
(Lexology 2021)
91
92
Auteurswet (Dutch Copyright Act), article 1; Code de la Propriete Intellectuelle (French Intellectual
Property Code), Book I, Title I, Chapter II, article L-112-2; Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS Agreement), article 9(1); WIPO Copyright Treaty, article 3
93
New Media Rights, What types of things are protected by copyright? (New Media Rights 2020)
94
Pieter De Grauwe and Sasha Gryspeerdt,, Qualification of AI creations as “works” under EU copyright
law: four-step test (Gevers 2022)
16
they are placed, is a material prerequisite under EU law. 95 Nevertheless, it is
relevant to assess whether the output itself is resulting in human intellectual
creativity and is not merely a product of an algorithmic process.
C) human intellect
After establishing that AI-assisted output qualifies for a protected category under
EU law, the assessment of whether the product is a result of human intellectual
creativity or if it is solely an outcome of the mechanical process takes place. The
involvement of a natural person in the creation of the output matters for
copyright protection.96
In the Painer case, the CJEU recognized that choices made by the author
of the work can give it a distinct “personal touch”. 97 Similarly, according to the
Cofemel case, a work to be considered original must reflect the personality of its
author and be an expression of his free and creative choices. 98 Therefore, human
creativity and individual choices determine whether the work is eligible for
copyright protection.
Looking further, referring to the Luksan case, the CJEU considered that
rights applicable to the author of the work are attached to the human creator and
cannot be transferred to a legal entity. 99 Additionally, the exception to that only
applies to reproductions made by natural persons for their private use which also
proves the importance of the presence of a human actor for copyright
protection.100 However, there are no definitive guidelines on the extent of human
involvement required.
95
96
97
Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2011], ECR I-12533, §94
98
Case C-683/17, Cofemel – Sociedade de Vestuario SA v G-Star Raw CV [2019], §25; Case C-145/10,
Eva-Maria Painer v Standard VerlagsGmbH and Others [2011], ECR I-12533, §89; C-403/08, Football
Association Premier League and Others [2011], ECR 2011 I-09083, §98
99
Case C-277/10, Martin Luksan v Pertrus van der Let [2012], §37
100
Case C-572/13, Hewlett-Packard Belgium SPRL v Reprobel SCRL [2015], §20, 27 and 28
17
Moreover, referring to the Universal Declaration on Human Rights,
which protects the moral and material interests of authors of the “work” resulting
from scientific, literary, or artistic productions, it can be concluded that these
fundamental rights are vested in natural persons. 101 Therefore, the EU focuses on
human free choices and creativity in determining the notion of originality which
is a crucial requirement for protection. Nevertheless, this condition does not
exclude creations by human authors made with the aid of machines, provided
that the human contribution to the output meets the legal standard.102
The product needs to be the result of the human intellect, but this can be
limited to a certain action, such as the sole correction of a final output. 103
Therefore, AI-assisted output will be examined simultaneously with some forms
of human intervention such as the development of software, editing, or gathering
training data needed for the creation process. Although the causal link between a
natural person’s intervention and the AI-assisted output may become more
distant in the future, there is currently no evidence that the content could be
solely generated by an AI.104 Nevertheless, the criteria would introduce an issue
about the extent of human involvement that would later impact the output’s
qualification for the present EU copyright protection.105
Referring to “The Next Rembrandt” example, even though the AI

algorithm was used to create the painting, the output still required human
involvement in its development. The creators gathered data from the entire
collection of Rembrandt’s works by analyzing a broad range of materials.
Therefore, there was a visible involvement in the product by selecting the dataset
and giving guidance to the algorithm.106 Therefore, the AI-assisted output that
101
102
103
104
James Vincent, The scary truth about AI copyright is nobody knows what will happen next (The Verge
2022)
105
106
18
qualifies for copyright protection within the EU needs to be a product at least
partially derived from human intellectual effort.
D) creativity and originality criteria

Moreover, for a “work” to be protected, it must fulfill the criteria of originality
and possess a sufficient degree of creativity. 107 The requirement of originality is a
fundamental element for copyright safeguarding in the EU.
The concept of originality is defined as “the author’s intellectual

creation”.108 In general, “work” results from the author’s intellectual creativity
and is not copied from other productions.109 Despite that, various cases like
Painer,110 Funke Medien,111, Cofemel,112 and Brompton Bicycle,113 further
confirmed that creation implies originality where it embodies making personal,
free, and creative choices.114 Moreover, looking at Term Directive recital 17, “the
author’s intellectual creation” requires work to reflect one’s personality. Hence,
solely expressed words do not fall under the scope of originality unless they are
created by sequence and combination chosen by the author which may express
one creativity.115
The concept of originality is left to be interpreted by the national laws of

each member state. The Dutch Copyright Act (Auteurswet) under Article 1, only
safeguards the “work” if it is i) original; ii) personal. 116 Additionally, the Dutch
Supreme Court ruled on the concept of originality, that “work” is considered
sufficient for protection if it exhibits the personal imprint of the author. 117
Although it is not specifically indicated, the provision applies protection to
original works that stamp the author’s personality. Additionally, Article 10
107
Mireille van Eechoud, The Work of Authorship (Amsterdam University Press 2014) 7
108
Case C-310/17, Levola Hengelo BV v Smilde Foods BV [2018], §36; Case C-683/17, Cofemel –
Sociedade de Vestuario SA v G-Star Raw CV [2019], §29
109
110
Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2011], ECR I-12533, §§87
111
Case C-469/17 – Funke Medien GmbH v Bundesrepublik Deutschland, §47
112
Case C-683/17, Cofemel – Sociedade de Vestuario SA v G-Star Raw CV [2019], §30
113
Case C-833/18 – Brompton Bicycle Ltd v Chedech/Get2Get [2020], § 23
114
115
Case C-469/17 – Funke Medien GmbH v Bundesrepublik Deutschland, § 23
116
117
NJ 1991/608, Van Dale/Romme, [1991], §3.3
19
stipulates through the list that safeguarding covers, not mere ideas, and concepts,
but their expression in tangible forms. The equivalent article in the French legal
system would be Article L. 112-1 of their Code. 118 Accordingly, a “work” is
eligible for protection if it is original in the sense that it reflects the author’s
“mind” as a result of one’s personal creative choice, despite its form of
expression. Additionally, Article L.112-2 of the same Code stipulates categories
of “works” eligible for copyright protection. 119 Nevertheless, the list is not
exhaustive, hence, the judiciary may acknowledge the originality of works other
than those given.120 Moreover, the concept has been defined by case laws in line
with the European one, which has validated the French broad notion.
There are various types constrained by creativity, such as rule-based

concepts,121 technical,122 functional,123 and informational.124 Nevertheless, the
CJEU does not require creativity or personality to be objectively discernible in
the resulting expression. The originality and human creativity criteria need to be
present for copyright protection. Such safeguards concern even subject matter
created with the aid of a machine. 125 Therefore, there is general freedom available
to the author to exercise one’s creative choice, but it cannot be minor.
The exercise of free and creative choice, thereby reflecting part of the author’s
personality, is crucial, and making obvious arrangements would not qualify for
protection.126 Dutch copyright law denies safeguard to “banal” expressions, even
though the legal system recognizes broad creative freedom. 127 Similarly, looking
at French law, the court emphasized that work must imprint the author’s
personality and reflect a free and creative choice.128 Consequently, copyright
118
L-112-1
119
L-112-2
120
Brad Spitz, France: no copyright protection for perfume (Kluwer Copyright Blog 2014)
121
C-403/08, Football Association Premier League and Others [2011], ECR 2011 I-09083, §98
122
Case C-393/09–Bezpecˇnostnı ́ softwarova ́asociace–Svazsoftwarove ́ochrany v.Ministerstvo kultury
(2010) ECR 2010 I-13971, § 49–50
123
Case C-833/18 – Brompton Bicycle Ltd v Chedech/Get2Get [2020], § 26
124
Case C-469/17 – Funke Medien GmbH v Bundesrepublik Deutschland, § 24
125
126
127
Zonen Endstra v. Nieuw Amsterdam (2008), §4.5.1
128
Cour de Cassation, Chambre civile 1, 16 March 1993, No. 91-15647 (Bonnard v. Michel T.) §4
20
protection will not be granted if the outcome does not present creative choice
through its originality.
In the EU, referring to Article 5(3)(k) of the Copyright Directive, there is

a general exception to copyright for use of the protected “work” for the purpose
of caricature, parody, or pastiche.129 According to the Deckmyn v Vandersteen
case, the CJEU held that such exceptions need to meet certain criteria, such as
the notion of originality, while not causing undue harm to the primary work or its
author.130 The case emphasized the importance of balancing the right to freedom
of expression with the protection of copyright. Additionally, referring to the
Pelham case, the example of the use of a musical sample, the court stated that
such usage must be necessary to achieve the exceptional effect and not go
beyond it.131 Consequently, a combination of already existing styles at different
phases of creation, by way of exception, might be enough to qualify such output
under EU copyright protection. In France, alongside Article L-122-5(4) of the
Code, the case HADOPI v. B. R. illustrated that the use of the photograph for the
purpose of caricature is in accordance with fair use, as it did not cause undue
harm to the original work or its author. 132 Similarly, referring to Article 18b of
the Auteurswet, the Dutch legal system stipulated that the use of photographs for
the aim of creating humorous creation could be considered fair use only if it
meets the requirements for caricature, parody, or pastiche under EU law. 133
Therefore, the principles that ensure the safeguard of personal creative “works”
and exclude sole ideas are fundamental in creating copyright protection.
The output must differ from other creations, even though it is a matter of
degree. Regarding the creative concept, it is relevant to consider the process by
which the work comes into existence. 134 The creative choices may occur at
various stages of the production. The fact that the output has an aesthetic effect
129
harmonization of certain aspects of copyright and related rights in the information society, article 5(3)(k)
130
Case C-201/13, Deckmyn I Vrijheidsfonds [2014], §26
131
Case C-476/17, Pelham GmbH v Ralf Hutter and Florian Schneider-Esleben, [2019] §51
132
Paris Court of Appeal, Chambre 2, [2015, RG No 14/22340, (HADOPI V B. R.) §19
133
Martin Senftleben, Quotation, Parody and Fair Use (VU Research Portal 2012) 365
134
Ana Ramalho, Intellectual Property Protection for AI-generated Creations (Hardcover 2021) 16
21
does not qualify it for safeguarding.135 The validity of such safeguards is dealt
with at the national level. Therefore, national courts are required to decide, by
case-by-case assessment, whether AI-assisted output is a result of a free and
creative choice that would fulfill the condition of originality.136
The originality of computer-generated works depends on creative

choices made by human authors during their production and on whether these are
reflected in the final outcomes.137 In the AI-assisted output, creativity can be
recognized in three stages of the process. The first one involves creating a plan of
work that goes beyond formulating an idea. Even though AI tools make this part
easier, such a phase requires detailed design choices on the part of the creator,
like style, technique, and materials, as well as conceptual decisions relating to the
substance of the work, such as functional specifications.138 Most of these, in the
case of AI-assisted works, are exercised by a human being. Therefore, at this
stage, AI has no role in the creative process other than acting as an external
constraint.139 Nevertheless, it is debatable whether the choices concerning style,
composition, or color qualify as “free and creative” when production is based on
datasets containing works of other artists. 140 In the case of “The Next
Rembrandt”, the design choices were made by a team of human experts in the
fields of data analysis, and art history who used AI as an external constraint.
The second one focuses on converting the plan into what can be
considered a draft version of the output. 141 Within the traditional form of
creation, machines have played an increasingly important role in the creative
process, as for instance photographs would not be made without cameras.
Currently, machine learning systems are trained to perform more complex tasks
135
Case C-683/17, Cofemel – Sociedade de Vestuario SA v G-Star Raw CV [2019], §54
136
137
138
JAKE Y’OU, The Creativity Cycle (x AI): Why “Story” Will Stay Human (JAKE Y’OU 2023)
139
140
141
22
and produce more sophisticated works.142 However, natural persons were always
in control, as they were responsible for intuitions, and the machine was solely
used as a tool for execution. In the case of “The Next Rembrandt”, the stage
involved using AI to analyze Rembrandt’s existing works and generate a set of
unique features, that were later used to generate a 3D painting. While it is true
that these AI tools were trained to perform these tasks, the final output still
required human intervention to ensure that the painting would meet the standard
of the artist’s style.
The third one involves reworking the draft versions into the finalized
product. Such a phase may concern various types of creative choices and even
the originality of the output. Such a phase is mainly controlled by humans as AI-
assisted outputs still require redaction, especially when they are intended for
commercial exploitation.143 In the case of “The Next Rembrandt”, this stage
involved a team of experts to ensure the quality of the final output, which met the
required standards. Therefore, the painting was a result of the personalized
implementation of technology through human interventions.
E) expressed work
Copyright protection refers to the protection granted to a particular expression of
ideas rather than the unmaterialized concept itself. There needs to be a causal
link between the author's creative choices and the expression in concrete form. 144
In other words, the author must have made a sufficient creative effort to produce
a personal “work”, that would result in one’s creative process rather than a mere
mechanical act of reproducing.145
The human author creates a general conception of the work, leaving

space for unintended expressive features created by AI. 146 Due to the
142
143
144
James Vincent, The scary truth about AI copyright is nobody knows what will happen next (The Verge
2022)
145
Auteurswet (Dutch Copyright Act), article 10; Code de la Propriete Intellectuelle (French Intellectual
Property Code), Book I, Title I, Chapter II, article L-112-1
146
23
characteristics of AI systems, the natural person may neither predict nor explain
the outcome in the first stage of creativity (planning). However, as long as the
final product stays within the scope of the primary expectations, there is a fixed
expression of the author’s intent.147 Looking at “The Next Rembrandt” example,
there was a clear desire to make a digital painting in the style of a famous artist
which was conveyed into an unconventional piece of art. 148 Therefore, the work
would qualify as expressed output. Even unpredicted, partially random AI-
assisted contributions might still fall within the scope of protection, due to the
last stage of editing being controlled by a natural person.
The copyright system favors the dignity of human creativity over

machine creativity. Assuming the AI-assisted output reflects creative choices
made by a human author at any phase of the creation process, the final product is
likely to be protected under the EU law. It is relevant to disclose that even though
more sophisticated AI art, such as “The Next Rembrandt”, may involve visible
human input into the production, more simple designs such as weather forecasts
or new reports may not.149 In some cases, authors make no meaningful
contribution to the creation, merely pushing a few buttons. Nevertheless, such
mainly AI-generated works where human impact is merely visible, still cannot
qualify for current EU copyright protection.150
3.2 Copyright protection in the UK: requirements and application to AI-

assisted outputs
For a “work” to qualify for copyright protection under UK law, it must meet the
requirements of originality, fixation, and authorship. The former one was
established in the case of University of London Press v. University Tutorial Press
Ltd, where it was held that work must be the product of the author’s skill, labor,
and judgment.151 In other words, Section 3(3) of the Copyright, Designs, and
147
148
AIContentfy team, AI-generated lyrics: a new form of musical expression (AIContentfy 2023)
149
150
151
University of London Press v. University Tutorial Press Ltd [1916] 2 Ch 601, §6
24
Patents Act 1988 (CDPA)152 clarifies that “work” must demonstrate a degree of
independent creative effort that cannot be duplicated from another work. 153
Therefore, the requirement for a “work” to reflect human intellect is implicit in
the concept of originality. Section 1(1)(a) CDPA, 154 illustrates that copyright
subsists in original literary, dramatic, musical, and artistic “works”, films, sound
recordings, broadcasts, and typographical arrangements of published editions. 155
The condition of fixation is illustrated in Section 3(2) CDPA, which clarifies that
work needs to be provided in a tangible medium of expression, with digital forms
in mind.156 In Section 9(1) of the CDPA, the latter requirement on authorship was
defined which will be elaborated further in the paper.157
Nevertheless, there are exceptions to originality under UK copyright law.

Ideas,158 as well as a database of information consisting of pure facts do not
qualify for copyright protection.159 Additionally, according to Section 30 of the
CDPA, the safeguard can be overridden in the public interest 160 and for certain
purposes, such as criticism or review, to keep fair dealing on the market. 161
Similarly to EU law, Section 30A of the CDPA illustrates that fair use of the
“work” that does not infringe copyright also includes caricature, parody, or
pastiche which also allows for some exceptions in relation to the originality
standard.162
There is no specific provision in the CDPA that directly addresses AI-

assisted products. Nevertheless, the principles discussed earlier in EU law are
generally applicable in the UK.163 According to Section 1(1) of the CDPA,
copyright refers to the original works within the literary, dramatic, musical, and
artistic domains which also include works created with the assistance of an
152
Copyright, Designs, and Patents Act 1988, section 3(3)
153
Niovi Plemmenou, Copyright Law Explained from a UK Law Perspective (The legal compass 2020)
154
Copyright, Designs, and Patents Act 1988, section 1(1)(a)
155
Copyright, Designs, and Patents Act 1988, section 3(1) CDPA
156
157
158
Robin Ray v Classic FM plc [1998] EMLR 188
159
Interlego AG v Tyco Industries Inc [1989] AC 217
160
Ashdown v Telegraph Group Ltd [2001] EMLR 8
161
Copyright, Designs, and Patents Act 1988, section 30
162
Copyright, Designs, and Patents Act 1988, section 30A
163
Sally Shorthose, Brexit: English Intellectual Property law implications (Bird & Bird 2021)
25
algorithm.164 As with the EU system there is a requirement for the work to reflect
human intellectual effort the UK Intellectual Property Office (IPO) provided
guidelines that copyright protection only arises where the creation process
involves a sufficient degree of human involvement. 165 It was illustrated that a
natural person does not need to have a particular skill or talent, but the work
needs to contain some element of originality and creativity. Nevertheless, the
degree of human involvement may depend on various factors, such as the
complexity of the algorithm used or the level of creative input provided by the
natural person in generating the work.166
Firstly, looking at the example of “The Next Rembrandt”, the

requirement is fulfilled as in its final form, the work was fixed in a 3D painting,
also falling under the artistic domain.167 Therefore, passing the criteria for AI-
assisted outputs would be unproblematic, assuming that the “domain” in which
they are placed, is a material prerequisite under EU law. Nevertheless, it is
relevant to assess whether the output itself is resulting in human intellectual
creativity and is not merely a product of an algorithmic process. The painting
needs to be a product of labor, skill, and judgment. 168 It must also demonstrate a
degree of independent creative effort that cannot be duplicated by other arts. 169
As the painting was created by the algorithm designated to analyze and mimic
already existing works, it is arguable whether it can be considered original
enough for protection. Therefore, the degree of human involvement in the
creation process, such as the selection of trained data, is relevant to fulfilling the
originality requirement. Secondly, the painting must be fixed in a tangible
medium of expression.170 In the example, this is the case, because the painting
was printed on the canvas hence, this satisfies the requirement of fixation.
Therefore, in the piece of art, “The Next Rembrandt”, the requirements for
164
165
Secretary of State for Digital, Culture, Media and Sport, National AI Strategy (Gov.uk 2022) 23
166
ibid
167
168
All Answers ltd, What is Copyright? (Lawteacher.net 2019), <https://www.lawteacher.net/free-law-
essays/copyright-law/what-is-copyright.php?vref=1>s accessed date May 2023
169
Interlego AG v Tyco Industries Inc [1989] AC 217
170
Clarin, Copyright Law Overview: What is copyright law? (Clarin) <https://www.clarin.eu/content/clic-
overview-copyright-law> accessed date May 2023
26
copyright protection are fulfilled as in its final form, the work was fixed in a 3D
painting, also falling under the artistic domain. Therefore, passing the criteria for
AI-assisted outputs would be unproblematic, assuming that the “domain” in
which they are placed, is a material prerequisite under EU law. 171 Nevertheless, it
is relevant to assess whether the output itself is resulting in human intellectual
creativity and is not merely a product of an algorithmic process. Therefore, AI-
assisted art may be eligible for copyright protection in the UK, depending on the
human impact in the creation process to determine the originality of the work.
3.3 Comparison of EU and UK laws

While the UK is not bound by EU legal frameworks anymore, it has agreed to
follow certain EU copyright principles to some extent as part of the Brexit
agreement, to facilitate continued trade with EU member states. 172 Nevertheless,
the UK has introduced amendments to their copyright law since leaving the EU
such as on copyright duration, safe harbor for online service providers, and
exceptions that were previously governed by EU legislation but have now been
adopted into the UK’s national law. 173 As EU law requires originality to be seen
as the author’s intellectual creation, in the UK it is broadly similar, as the product
needs to result from the author’s skill, labor, and judgment. Both requirements
reflect the need for “work” to show some degree of human effort. Moreover, the
discussion of originality can also be found in the Football Dataco Ltd v. Yahoo!
UK Ltd case, where the CJEU, referring to both the Infopaq, and Painer cases,
established that the arrangement of data can be copyright protected if it involves
some kind of judgment or impact and is not simply a mechanical act. 174 In terms
of expression, while EU law does not specifically mention digital forms in the
“expression” requirement, it is understood that AI-assisted outputs qualify for
copyright protection if they meet other requirements for the safeguard, such as
171
172
Copyright house, How Brexit is Changing UK Copyright Law (Copyright house 2020)
173
Intellectual Property Office and Government Digital Service, Guidance: Protecting Copyright in the UK
and EU (Gov.uk 2020)
174
C-604/10, Football Dataco Ltd v Yahoo! UK Ltd, [2012], §38
27
originality.175 Overall, while there are minor differences, the requirements for
protection are broadly similar in both legal systems.
The UK’s copyright law is strongly influenced by EU law as the latter

has been at the forefront of developing laws related to AI and intellectual
property rights.176 Both systems recognize common interests and values, to
ensure that copyright law keeps pace with technological advances. By applying
similar principles when it comes to the protection of AI-assisted output, legal
systems ensure consistency and avoid potential risks of conflicts. 177 Therefore,
while there is no specific reference to AI-assisted works in both legal systems,
the general principles of EU copyright law apply under the UK’s law.
4. The authorship of AI-assisted output

Under copyright law, a work's creation is related to its author's existence. 178
Therefore, the concept of authorship becomes relevant where it has been
established that there is a work to which we can attribute it. In circumstances
where AI-assisted output does not qualify as work, no concept of authorship can
be executed.179 The attribution of authorship is crucial in copyright law as it
determines the ownership and control of the rights associated with the work.
Without a work that meets the requirements for protection, there is no legal
framework to assign them to a specific individual or entity.180
4.1 The doctrine of authorship under EU law

The EU copyright framework does not provide clear guidance on the concept of
authorship, and instead, largely relies on the principles illustrated in the Berne
175
176
177
Intellectual Property Office, Government response to call for views on artificial intelligence and
intellectual property (Gov.uk March 2021)
178
Clarin, Copyright Law Overview: What is copyright law? (Clarin) <https://www.clarin.eu/content/clic-
overview-copyright-law> accessed date May 2023
179
180
ibid
28
Convention.181 However, the international framework does not define the
“author”, leaving this to the contracting parties. Nevertheless, convention’s
content refers to the natural person who created the work which implies that
copyright protection focuses on the human author.182 Only a few positions in the
EU legal system directly address the issue of authorship.
While the Infosoc Directive requires member states to provide rights to

the author of the work, such as reproduction, it does not clearly define that
concept. The CJEU has indicated in multiple instances that the term “author” is
exclusively applicable to human creators and cannot be extended to legal entities
such as publishers.183 Therefore, only individuals who have contributed their own
intellectual effort to the creation of a work can be considered authors. Article
1(3) Computer Programs Directive establishes the fundamental concept that the
author of a computer program is the natural person who created it. 184
Nevertheless, it also allows member states to deviate from it in their national
laws by allowing legal entities to be designated as such. In France, Article L.113-
1 of the Intellectual Property Code provides that an author is only a natural
person under whose name the final work has been disclosed. 185 Similarly, under
Article 1 of the Dutch Copyright Act, the author is specified as a natural person
who has created the work.186 Additionally, Article 4 illustrates, in the absence of
proof, that the authorship is presumed for a maker of a final product. 187
Therefore, even though the Computer Programs Directive allows for deviation
from the general principle, France has not made use of this flexibility.
Nevertheless, the Dutch legal system recognizes deviation from the standard
concept, allowing for the presumption of authorship for a maker of a product that
does not solely focus on natural persons.
181
ibid
182
Berne Convention for the Protection of Literary and Artistic Works, article 6bis
183
Case C-5/08, Infopaq International A/S v Danske Dagblades Forening [2009], ECR 2009 I-06569, §33;
Case C-435/12, ACI Adam BV v Stichting de Thuiskopie QB 480, [2014], §53
184
protection of computer programs, article 1(3)
185
Code de la Propriete Intellectuelle (French Intellectual Property Code), Book I, Title I, Chapter III, article
L113-1
186
187
29
Certain national laws within the EU recognize special provisions for the
allocation of authorship where a work is created under the supervision of
another. Article 6 of Auteurswet states that in such circumstances, the author is
the person under whose direction the work was created. 188 Article L.113-1 of the
French Code also includes also those works created with the assistance of
machines where the author’s creative contribution is relevant in determining the
authorship.189 This framework focuses on the author’s discretion and controls
over the work’s creation rather than its mere execution.190
In the case of “The Next Rembrandt”, the machine learning algorithm

was trained using data from Rembrandt's existing paintings to generate a new
artwork that resembled his style. The resulting painting was then physically
created by a team of human artists. 191 Under EU copyright law, the author of a
work is typically the natural person who created it. 192 However, as the machine
learning algorithm was responsible for generating the unique characteristics of
the painting, it is not clear who would be considered to have made a sufficient
impact in this case. While the physical creation of the painting was carried out by
a team of human artists, the creative input of the machine-learning algorithm
cannot be discounted. The allocation of authorship focuses on the author's
creative involvement, particularly when machines play a significant role.
Therefore, the determination of authorship in the case of “The Next Rembrandt”
would depend on the level of creative involvement of the machine learning
algorithm and the extent to which it contributed to the painting's creation.
4.2 The doctrine of authorship under the UK law

In the UK, the concept of authorship under copyright law is tied to the existence
of an identifiable individual who has created a work. Section 9(1) of the CDPA 193
defines the author as the person who created the work, and Section 9(3) further
clarifies that copyright cannot subsist in a work generated by a computer, as it
188
189
Code de la Propriete Intellectuelle (French Intellectual Property Code), Book I, Title I, Chapter III, article
L113-1
190
Brad Spitz, Originality of a computer program under French law (Kluwer Copyright Blog 2013)
191
Dutch Digital Design, The Next Rembrandt: bringing the Old Master back to life (Medium 2018)
192
193
30
focuses on the person by whom the necessary arrangements were made. 194 As an
exception, Section 11 mentions that during employment, the employer is the first
owner of any copyright in the work. 195 Therefore, authorship over AI-assisted
output will be given to the one creating the environment necessary for the
machine to create the work. Even with autonomous execution, the author would
be considered the one providing the database and guidelines. 196 Nevertheless, it
may not always be clear who made the necessary arrangements for the creation
of AI-assisted work. If a work is partially created by a human and a machine, it
would be difficult to establish who is the main arranger. Nevertheless, machines
are excluded because they are not considered to be legal entities and, hence,
cannot own any rights.
In the UK, the originality requirement is fulfilled when the work has
originated from the author, as it must be the product of labor, skill, and judgment.
Section 9(1) of the CDPA, the author of a work is defined as the person who
created it. However, the legislation does not address the issue of AI-assisted
creations. It can be argued that individuals who contribute to the development of
the AI system, provide necessary arrangements, and exercise their judgment in
guiding the algorithm’s output may be considered authors. 197 Therefore, the
degree of human involvement becomes relevant not only in fulfilling the
originality requirement but also establishing authorship over AI-assisted outputs.
It is relevant to assess whether the output itself is resulting in human

intellectual creativity and is not merely a product of an algorithmic process. 198
Looking at the example of “The Next Rembrandt”, authorship would be
attributed to the individuals who created the environment for the algorithm to
execute its tasks and provided the necessary arrangements for it to generate the
work. This could be the creation team, who developed the algorithm used to
194
195
196
the perspective of Australian, US, UK and EU law (European Intellectual Property Review 2018) 6
197
198
Samantha Fink Hedrick, I “Think”, Therefore I Create: Claiming Copyright in the Outputs of
Algorithms (NYU Journal of Intellectual Property & Entertainment Law 2019) 5
31
create the artwork. However, the concept of authorship over AI-assisted output is
still an uncertain area of law.199
4.3 Comparison of EU and UK law

While both UK and EU copyright laws recognize the importance of authorship in
determining ownership as well as the duration of the protection, the CJEU’s
interpretation of the sole term “author” as exclusively applicable to a natural
person created a significant difference between the two legal systems.
In the EU, the term “author” is defined under Article 2 of the InfoSoc
Directive as a natural person who created the work. 200 The importance of this
definition was emphasized by the CJEU in several cases, such as the Infopaq
case stipulating that only the original author of the work is entitled to copyright
protection.201 On the other hand, the UK copyright law does not explicitly define
the term “author”.202 Nevertheless, unlike most other countries, this legal system
under Section 178 of the CDPA defines computer-generated works that do not
directly involve human beings as creators. 203 Nevertheless, in such cases, UK law
still defines the author of such a work as the person by whom the necessary
arrangements are undertaken for its creation, referring to Section 9(3) CDPA.204
This difference in interpretation has significant implications, particularly

in the context of works created by AI. Under EU law, such works cannot be
protected by copyright because they were not created by a natural persons. 205
However in AI-generated works, a non-human author is recognized in the UK,
but cannot hold the copyright rights.206 In any case, the issue of authorship in AI-
assisted art is likely to become more prevalent as technology continues to play an
199
Sze-Mei Yeung, Copyright Issues in the Artificial Intelligence Era (Richards Buell Sutton 2023)
200
harmonization of certain aspects of copyright and related rights in the information society, article 2
201
202
Intellectual Property Office, Artificial intelligence call for views: copyright and related rights (Gov.uk
2021)
203
204
205
Alina Trapova, Copyright for AI-generated works: a task for the internal market? (Kluwer Copyright
Blog 2023)
206
Dentos, AI generated images and copyright: when does a computer become an artist? And are the rights
of human artists being respected? (2023), https://www.dentons.com/en/insights/articles/2023/january/27/ai-
generated-images-and-copyright accessed May 2023
32
increasingly significant role in the creative process. It will be important for
lawmakers to provide clear guidance on the issue of authorship to ensure that the
rights of all parties involved are protected.207
5. Conclusion
In conclusion, the evolution of Artificial Intelligence (AI) has had a significant
impact on the art world. AI-generated output, created solely by AI, and AI-
assisted output, involving human intervention, present legal challenges. The EU
recognizes copyright protection for AI-assisted output if it falls within the
relevant domain, involves human intellectual effort, demonstrates creativity and
originality, and is fixed in some form. The EU emphasizes the importance of
human involvement in the creative process which may vary depending on the
specific requirements for originality. On the other hand, the UK acknowledges
copyright protection for computer-generated works and considers human
authorship crucial for determining copyright eligibility. The analysis reveals that
both the EU and the UK have provisions for copyright protection of AI-assisted
output, but they differ in their approach to authorship and the level of human
involvement required. The EU emphasizes human creativity and involvement as
crucial factors, while the UK focuses on the presence of a human author in the
creation process. Additionally, the EU restricts the term "author" to natural
persons, while the UK recognizes non-human authors but denies them copyright
rights. The determination of authorship in AI-assisted art depends on the level of
creative involvement of AI algorithms and the extent to which they contribute to
the work's creation.
Therefore, AI-assisted output can be protected by copyright in both the

European Union and the United Kingdom when there is sufficient human impact
and involvement in the creation process. The level of human contribution,
creativity, and decision-making plays a crucial role in determining eligibility for
copyright protection. While AI plays a significant role in generating the output,
the presence of human intellectual effort and judgment is essential for
establishing authorship and copyright ownership.
207
33
6. Bibliography
6.1 Primary sources
6.1.1 International Instruments
Agreement on Trade-Related Aspects of Intellectual Property Rights 1994, part
II
Berne Convention for the Protection of Literary and Artistic Works 1886
6.1.2 European Instruments
Directive 2006/116/EC of the European Parliament and of the Council of 12
December 2006 on the term of protection of copyright and certain related rights
34
Directive 96/9/EC Directive 96/9/EC of the European Parliament and of the
Council of 11 March 1996 on the legal protection of databases (Database
Directive), chapter II
Directive 2019/790/EC of the European Parliament and of the Council on
copyright and related rights in the Digital Single Market and amending
Directives 96/9/EC and Directive 2001/29/EC (DSM Directive), chapter IV
Directive 2001/29/EC of the European Parliament and of the Council on the
harmonisation of certain aspects of copyright and related rights in the
information society (InfoSoc Directive), chapter II
Directive 2009/24/EC of the European Parliament and of the Council on the legal
protection of computer programs (Software Directive)
Proposal of Regulation of the European Parliament and of the Council laying
down harmonised rules on artificial intelligence (ARTIFICIAL
INTELLIGENCE ACT) and amending certain union legislative act 2021
Treaty on the Functioning of the European Union 2009, chapter II
6.1.3 National Instruments
Auteurswet (Dutch Copyright Act) 1912, chapter I
Code de la Propriete Intellectuelle (Intellectual Property Code) 1992, chapter II,
chapter III
Copyright, Design and Patents Act 1988, chapter I, chapter III, chapter X
6.1.4 Case law
Ashdown v Telegraph Group Ltd [2001] EMLR 8.
Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo

kultury, Case C-393/09, [2010] ECLI:EU:C:2010:816.
Bonnard v. Michel T. (Cour de Cassation, Chambre civile 1, 16 March 1993, No.

91-15647)
Cofemel – Sociedade de Vestuário SA v G-Star Raw CV, Case C-683/17, [2019]

ECLI:EU:C:2019:721.
Cour de cassation, civile, Chambre civile 1, 17 octobre 2012, 11-21.641, Inédit.
Eva-Maria Painer v Standard VerlagsGmbH and Others, Case C-145/10, [2011]

ECR I-12533.
35
Football Association Premier League Ltd and Others v QC Leisure and Others,
Case C-403/08, [2011] ECLI:EU:C:2011:631.
Funke MedienNRW GmbH v Bundesrepublik Deutschland, Case C-469/17,

[2019] ECLI:EU:C:2019:623.
HADOPI v B. R. (Paris Court of Appeal, Pôle 5, Chambre 2, 10 December 2015,

RG No 14/22340).
Hewlett-Packard Belgium SPRL v Reprobel SCRL, Case C-572/13, [2015]

ECLI:EU:C:2015:750.
Infopaq International A/S v Danske Dagblades Forening [2009] Case C-5/08,

EU:C:2009:465.
Interlego AG v Tyco Industries Inc, [1989] AC 217.
Karen Murphy v Media Protection Services Ltd, C-429/08 (Grand Chamber)

[2009] ECR I-01069
Levola Hengelo BV v Smilde Foods BV, Case C-310/17, [2018]

ECLI:EU:C:2018:899.
Martin Luksan v Pertrus van der Let, Case C-277/10, [2012]

ECLI:EU:C:2012:65.
NJ 1991/608 Van Dale/ Romme, [1991] ECLI:NL:HR:1991:ZC0104.
Pelham, Moses v Hütter, Ralf, [2019] EWCA Civ 1009.
Robin Ray v Classic FM plc [1998] EMLR 188
Brompton Bicycle Ltd v Chedech / Get2Get, Case C-833/18, [2020]

ECLI:EU:C:2020:461.
University of London Press v. University Tutorial Press Ltd, [1916] 2 Ch 601.
Zonen Endstra v. Nieuw Amsterdam (2008) ECLI:NL:HR:2008:BC2153
6.2 Secondary sources

AIContentfy team, AI-generated content for content marketing and SEO (AIContentfy 2023)
AIContentfy team, AI-generated lyrics: a new form of musical expression (AIContentfy 2023)
AI Dungeon, https://www.aidungeon.io.
36
All Answers ltd, 'What is Copyright?' (Lawteacher.net,), <https://www.lawteacher.net/free-law-
essays/copyright-law/what-is-copyright.php?vref=1>s accessed May 2023
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AIVA, https://www.aiva.ai.
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droit-d-auteur-en-france-230/Copyright-in-France.html?lang=en accessed May 2023
Cheng X and others, The dark sides of AI (Springer 2022)
Cho W, AI-“Assisted” Works Are Now Open to Copyright Protection, Raising Questions for
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https://www.clarin.eu/content/clic-overview-copyright-law accessed May 2023
Copeland J, artificial intelligence (Britannica 2023)
CSU Global, How Does AI Actually Work (Colorado State University Global Blog 2021)
Davenport T. H. and Mittal N, How Generative AI Is Changing Creative Work (Harvard

Business Review 2022)
Dentos, AI generated images and copyright: when does a computer become an artist? And are the
rights of human artists being respected? (2023),
https://www.dentons.com/en/insights/articles/2023/january/27/ai-generated-images-and-
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Devarapalli P, Machine Learning to Machine Owning: Redefining the Copyright Ownership from
the perspective of Australian, US, UK and EU law (European Intellectual Property Review 2018)
Dutch Digital Design, The Next Rembrandt: bringing the Old Master back to life (Medium 2018)
37
Editorial Aela, Artificial Intelligence: How AI is Changing Art (Aela 2023)
Eechoud M, The Work of Authorship (Amsterdam University Press 2014)
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for promoting safe AI that respects fundamental rights (consilium.europa.eu 2022)
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https://intellectual-property-helpdesk.ec.europa.eu/system/files/2021-01/EU-IPR-Guide-IP-in-
Europe-EN.pdf> accessed date May 2023
Gandhi R, Artificial Intelligence, Does it Has Ability to mimic Human Intelligence

(ResearchGate 2020)
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four-step test (Gevers 2022)
Grauwe P and Gryspeerdt S, Artificial Intelligence (AI): The qualification of AI creations as

Hartmann C and others, Trends and Developments in Artificial Intelligence: Challenges to the
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(NYU Journal of Intellectual Property & Entertainment Law 2019)
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Protect AI-Assisted Output? (Springer 2021)
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(Gov.uk 2021)
Intellectual Property Office and Government Digital Service, Guidance: Protecting Copyright in
the UK and EU (Gov.uk 2020)
Intellectual Property Office, Government response to call for views on artificial intelligence and
intellectual property (Gov.uk March 2021)

38
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40

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Marta Michalowska

The Art of Technology – Artificial

As AI’s significance becomes increasingly evident in various fields,

The research question will be examined using a comparative doctrinal

2.1 Autonomy concept of AI

The concept of autonomy in machine learning algorithms refers to the

2.2 Difference between AI-assisted and AI-generated output

AI-generated and AI-assisted outputs have the potential to impact the

There are three types of machine learning: i) supervised; ii)

Currently, AI graphic tools are designated to create alongside human

2.3 The use of AI in art: brief history

AI tools continued to evolve and become more sophisticated, hence

AI-assisted art has become increasingly popular in recent years. Forms,

3.1 European copyright protection: requirements and application to AI-

A) the scope of the “work” domain

Similarly, Article 1 of the Directive 2006/116/EC on the term of

In addition, several other types of works are protected under EU

The example of “The Next Rembrandt” painting would be eligible for

B) production in the literary, scientific, or artistic domain

The AI-assisted output must be created in the literary, scientific, or

Referring to “The Next Rembrandt” example, even though the AI

D) creativity and originality criteria

The concept of originality is defined as “the author’s intellectual

The concept of originality is left to be interpreted by the national laws of

There are various types constrained by creativity, such as rule-based

In the EU, referring to Article 5(3)(k) of the Copyright Directive, there is

The originality of computer-generated works depends on creative

The human author creates a general conception of the work, leaving

The copyright system favors the dignity of human creativity over

3.2 Copyright protection in the UK: requirements and application to AI-

Nevertheless, there are exceptions to originality under UK copyright law.

There is no specific provision in the CDPA that directly addresses AI-

Firstly, looking at the example of “The Next Rembrandt”, the

3.3 Comparison of EU and UK laws

The UK’s copyright law is strongly influenced by EU law as the latter

4. The authorship of AI-assisted output

4.1 The doctrine of authorship under EU law

While the Infosoc Directive requires member states to provide rights to

In the case of “The Next Rembrandt”, the machine learning algorithm

4.2 The doctrine of authorship under the UK law

It is relevant to assess whether the output itself is resulting in human

4.3 Comparison of EU and UK law

This difference in interpretation has significant implications, particularly

Therefore, AI-assisted output can be protected by copyright in both the

Bezpečnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo

Bonnard v. Michel T. (Cour de Cassation, Chambre civile 1, 16 March 1993, No.

Cofemel – Sociedade de Vestuário SA v G-Star Raw CV, Case C-683/17, [2019]

Cour de cassation, civile, Chambre civile 1, 17 octobre 2012, 11-21.641, Inédit.

Eva-Maria Painer v Standard VerlagsGmbH and Others, Case C-145/10, [2011]

Funke MedienNRW GmbH v Bundesrepublik Deutschland, Case C-469/17,

HADOPI v B. R. (Paris Court of Appeal, Pôle 5, Chambre 2, 10 December 2015,

Hewlett-Packard Belgium SPRL v Reprobel SCRL, Case C-572/13, [2015]

Infopaq International A/S v Danske Dagblades Forening [2009] Case C-5/08,

Interlego AG v Tyco Industries Inc, [1989] AC 217.

Karen Murphy v Media Protection Services Ltd, C-429/08 (Grand Chamber)

Levola Hengelo BV v Smilde Foods BV, Case C-310/17, [2018]

Martin Luksan v Pertrus van der Let, Case C-277/10, [2012]

NJ 1991/608 Van Dale/ Romme, [1991] ECLI:NL:HR:1991:ZC0104.

Pelham, Moses v Hütter, Ralf, [2019] EWCA Civ 1009.

Robin Ray v Classic FM plc [1998] EMLR 188

Brompton Bicycle Ltd v Chedech / Get2Get, Case C-833/18, [2020]

University of London Press v. University Tutorial Press Ltd, [1916] 2 Ch 601.

Zonen Endstra v. Nieuw Amsterdam (2008) ECLI:NL:HR:2008:BC2153