(*Image generated by DALL E 3 Microsoft version)
The rapid emergence of generative artificial intelligence has significantly impacted the intellectual property law landscape, attracting widespread attention. In France, the existing copyright laws do not explicitly address how they apply to works created by AI.
French copyright law traditionally protects original works, Under French copyright law, protection is granted to original works, regardless of the form in which they are expressed. However, the law provides no specific guidance on how to apply these principles to AI-generated content. As a result, there is some uncertainty as to whether AI-generated works can be protected by copyright.
On September 12, 2023, French legislators from the Assemblée Nationale presented a law proposal to the Presidency specifically designed to clarify copyrights rules related to AI.
In this article, we delve into the key provisions of this bill, offering a critical analysis of its strengths and weaknesses.
Analysis of the law proposal on AI and Copyright of September 12 2023
Preamble of the draft law
The preamble outlines the objective of the law, which is to “protect authors and artists of creation and interpretation based on a humanist principle, in legal harmony with the Intellectual Property Code”.
The preamble gives an example of what a AI generated creation is with the 2016 creation of “The Next Rembrandt” made by a computer and a 3D printer, long after the original artist’s demise. However, we should note that it is a shame that the only example mentioned in the preamble is a creation dated from 2016 (created 7 years before the draft law). More contemporary examples would have been appreciated.
Through collective management, this proposal seeks to ensure fair and equitable remuneration for authors and artists of creation and interpretation, and to ensure the traceability of authors and artists whose work has been used by AI.
Articles of the draft law
The draft law is divided into four articles which act as amendments to existing articles of the Intellectual Property Code (IPC).
- Preamble to Article L 131-3 of the IPC: Authorizing AI Integration of Copyrighted Works
The first change to article L 131-3 of the IPC – which deals with the transfer of author’s rights – involves adding a new paragraph. This new paragraph states that “the integration by artificial intelligence software of intellectual works protected by copyright, and their exploitation, is subject to the general provisions of the IPC, and therefore to authorization by the authors or right holders”.
Adding such a paragraph to a provision primarily focused on copyright assignment formalities raises questions about its appropriateness.
Moreover, it’s worth noting that the existing reproduction right may already cover aspects related to exploitation and authorization by the author. However, if this inclusion necessitates authorization from the original work’s author, it could become cumbersome in practice. Therefore, collective management, as seen in reprographic reproduction rights in France, might offer a more practical solution.
Finally, this amendment could conflict with the existing European (DIRECTIVE 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 on copyright and related rights in the Digital Single Market) and French (Article L122-5-3 IPC) provisions regarding the Text and Data Mining exception and limitation.
- Addition of Nine Paragraphs to Article L 321-2 of the IPC: Authorship and the Role of Collective Management Organizations in AI Generated Work
Article 2 introduces nine new paragraphs into article L 321-2 of the IPC, as regards to the legal actions and roles of collective management organizations. These organizations handle copyrights on behalf of rightsholders in a collective manner.
The first paragraph of this amended article reads: “When the work is created by artificial intelligence without direct human intervention, the only rights holders are the authors or rightsholders of the works that made it possible to conceive the said artificial work”. Subsequent paragraphs aim to facilitate collective management of AI-generated rights and the distribution of corresponding remuneration by collective management organizations.
Once again, the inconsistency in codification is evident. First, the term “work” suggests that AI outputs are indeed copyrighted works (oeuvres).
The phrasing “Without human intervention” is not appropriate since nearly all works involve at least some human intervention.
Finally, this amendment assigns ownership of the work to the authors or rightsholders of the works that enabled the creation of the said artificial work. However, the new paragraph does not specify how the collective management organizations would identify those “authors or rightsholders of the works”. A possible approach could be to view each contributor of input data used in the AI’s training process as a co-author of the resulting work. This perspective acknowledges that every output from the AI is essentially a derivative of all its various inputs.
Thus, to enhance legal clarity, it might be more appropriate to create new articles specifically dedicated to the collective management of works generated by AI.
- Amendment to Article L 121-2 of the IPC: Transparency and Authorship
Article 3 introduces a new paragraph into article L 121-2 of the IPC, which deals with the exclusive right of publication of a work (droit de divulgation).
This paragraph mandates the inclusion of “work generated by AI” and the insertion of the names of the authors of the works that lead to the creation of such work.
However, this paragraph suggests, once again, that AI works are protected by copyright as it is included in an article dedicated to one of the most important exclusive rights of the authors. In fact, article L 121-2 of the CPI predominantly addresses the authors’ right of disclosure.
More, while this new paragraph aims to distinguish AI-generated from non-AI-generated works, its placement in this article appears inappropriate. Creating a new article dedicated to this matter might offer better clarity.
Furthermore, the requirement to include the names of the authors of the original works raises questions about the existing provisions for protecting authorship rights.
Interestingly, these references seem to parallel the mandatory labeling of “retouched photograph” in commercial advertising, where models’ photographs are used.
- Amendment to Article L 121-2 of the IPC (Article 4): The new Taxation System for AI Companies
Lastly, the bill concludes with article 4, amending article L 121-2 of the IPC – as regards to publication right – where the aforementioned concerns about codification consistency apply once more.
These three paragraphs introduce a taxation system, to be paid by the AI system-operating companies, to collective management organizations, when the origin of an AI work cannot be determined.
Article 4 notably draws a connection to article L 324-14 of the CPI, which addresses cases where identifying right holders is impossible. In such situations, the amounts collected are treated as non-distributable funds, the allocation of which appears to be guided by collecting societies’ general policies. This proposed law goes a step further by converting these non-distributable funds into a tax designed to promote creative endeavors. As it stands, this paragraph seems to establish a tax that most creators will never benefit from.
More, the risk here is that AI companies will cease to provide services in France.
Final Thoughts: Balancing Act in Adapting Copyright Law for the AI Age
The bill aims to adapt copyright law to the AI era, addressing author remuneration through a collective management system. However, it has notable shortcomings and lacks clarity, particularly regarding how it handles exceptions like parody or pastiche. While it takes steps towards necessary legal reforms, it leaves many questions unanswered and may require additional refinement to be truly effective.