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Generative artificial intelligence (AI) is a type of artificial intelligence system that can generate text, images, and other media.

The process of creating content with generative AI can be roughly divided into two steps:

– The initial source of inspiration is termed as the “input”. The generic creation is based on this initial data, either retrieved from data labelled by the user/creator of the AI or from data autonomously found by the AI, to subsequently produce an “output” or result.

 – From the initial data (input), the AI generates a model, infers rules, and then applies these rules. This is the output.

As a result, generative artificial intelligence raises concerns about the protection of both upstream content and downstream output.

Upstream protection for content processed by generative AI

In the upstream, intellectual property rights may be infringed upon if data is copied by AI and then used without permission. Indeed, there is a reproduction of copyrighted content (texts, images, sounds) to feed AI databases.

These contents, however, are protected by intellectual property rights. To legally feed AIs without prior authorization, the European legislator created an exception for “text and data mining,” which suspends the exploitation monopoly under copyright and related rights for data mining purposes. This relates to Articles 3 and 4 of Directive 2019/790 of the European Parliament and Council on copyright and related rights in the digital single market, which was adopted on April 17, 2019.

Data mining involves collecting data to transform them. There is a mining operation, which means algorithmic processing in order to interpret results. Nonetheless, these mining operations violate intellectual and artistic property rights.

Text and data mining can also lead to acts protected by copyright, sui generis rights on databases, or both, especially regarding the reproduction of works or other protected items, the extraction of content from a database, or both, which is the case when data is standardised during the text and data mining process.

The Directive 2019/790 establishes two mandatory exceptions for copying, i.e., two exceptions on reproducing content protected by literary and artistic property rights overall (texts, sounds, images, for all copyrights, related rights, and sui generis rights).

– Article 3 is a mandatory academic exception, benefiting research bodies and cultural heritage institutions performing mining for scientific research purposes, which right holders can’t oppose.

– Article 4, on the other hand, is an exception for all uses, regardless of the purpose (including commercial), provided that the copyright holder has not expressed opposition. In this case, the right holders can oppose even though the exception is mandatory. This may seem contradictory, but in reality, it’s the only possible balance between the rights of intellectual property right holders and the rights of those reproducing the data.

While data mining is currently allowed, the debate on the protection of content used upstream by generative AI to produce content is not over. Appeals are multiplying. For instance, in Europe, right holders are mobilising through “position papers” since the context between the drafting of Directive 2019/790 in 2018 and the time when generative AIs are booming in 2023 is very different. Compensation for intellectual property rights holders for the exception on data mining is now part of the considerations of intellectual property specialists working on the topic.

Protection of Content Generated by Generative AI

While robots were once considered passive tools, advances in artificial intelligence research have raised concerns about their role in the creative process. Indeed, these advancements sometimes attribute a significant role to them in content creation, raising questions about the protection of content generated by generative AI.

Under copyright law, the principle remains indifferent to merit (CJEU 1st March 2012, Football Dataco Ltd et al. vs. Yahoo! UK Ltd et al., Case C-604/10). Yet, it remains contentious to assert that generative AI can be the author of a work it produces.

This brings up the question: Is the appearance of a work tied to a regime? Should we accept protection for works generated by AI?

The European Parliament’s report from 27th January 2017 on recommendations for civil law rules on robotics suggested that copyright criteria should be adapted to accommodate these new AI-generated creations.

What’s crucial here is distinguishing between creations assisted by generative AI and those autonomously generated by AI.

If generative AI is used as a tool assisting creation, there’s no debate. The work is protected by copyright, with the affiliated rights belonging to the human creator. In this scenario, the work clearly reflects the personality of its human creator.

But what about the opposite scenario? Do we lean towards copyright or other paths (common law, special law)?

In 2018, the Superior Council of Literary and Artistic Property conducted an economic and legal analysis of the options.

The idea of AI as an author is ruled out today. To qualify as a work under the European Union law, it must meet specific conditions:

– There must be a human author.
– The work must be original.

Given these conditions, today’s perceived autonomy of AI is exaggerated as human involvement is essential. The idea of creating an “electronic personality” is rejected, as it might disrupt existing legal categories, leading to a legal chimaera. Without a human entity, the work can’t fulfil the originality criterion, which in France refers to the “imprint of the author’s personality” and similarly in the European Union, denotes an “intellectual creation unique to its author”, both necessitating a human presence.

The link to a human author in copyright law seems to be an international requirement
suggested by the Berne Convention.

If literary and artistic property rights are chosen, determining which specific rights apply (copyright, sui generis rights) becomes essential. Also, the definition of the author (indirect author, work without an author?) must be clarified.

Some argue no protection is required, and the “opt out” would fall under the “common by design” regime.

While awaiting legislation specific to works produced by generative AI, it’s worth noting emerging case law in this field. Notably, the US District Court for the District of Columbia’s decision in Thaler vs. Perlmutter on 18th August 2023, which ruled that copyright doesn’t apply to creations made by AI tools, even if they’re trained by human intelligence.

Such discussions on highly current topics raise genuine legal questions. The rise of new technologies requires the legislature’s keen attention and continuous updates to stay relevant. It’ll be fascinating to see future measures and laws adopted to further regulate these smart new inventions.

To find out more about generative AI, read our article Generative AI: Balancing Innovation and Intellectual Property Rights Protection or visit WIPO Magazine and Blog Modérateur.

Intellectual property (IP) litigation is a process used to resolve a dispute over the ownership or use of IP. It is a legal process that can be used to protect and enforce the rights of IP owners. IP litigation is an important tool for businesses, as it enables them to protect their valuable IP assets and to prevent infringement.

The most common form of IP litigation is patent litigation. Patent litigation is used to resolve disputes over the ownership of inventions and the rights associated with them. Patent litigation can help to protect businesses from infringement and can help to ensure that they have exclusive rights to their inventions. Copyright litigation is another form of IP litigation. Copyright litigation is used to resolve disputes over the ownership of creative works, such as artwork, literature, music, and software. Copyright litigation can help to protect businesses from infringement and can help to ensure that they have exclusive rights to their works. Trademark litigation is another form of IP litigation. Trademark litigation is used to resolve disputes over the ownership of trademarks and the rights associated with them. Trademark litigation can help to protect businesses from infringement and can help to ensure that they have exclusive rights to their trademarks. The benefits of IP litigation for businesses are numerous. IP litigation can help to protect a business from infringement and can help to ensure that they have exclusive rights to their IP assets. IP litigation can also protect a business from competitors by preventing them from misusing or copying a business’s IP assets. In addition, IP litigation can help to protect a business’s reputation and to ensure that their products are not associated with competitors. IP litigation can also help to protect a business’s investments. IP litigation can help to ensure that a business’s investments are not wasted by competitors who are infringing on their IP rights. IP litigation can also help to secure a business’s investments by preventing competitors from misusing or copying their IP assets. IP litigation can also help to protect a business’s revenues. IP litigation can help to ensure that a business’s revenues are not lost due to infringement or misappropriation of their IP assets. IP litigation can also help to protect a business’s revenues by preventing competitors from copying or misusing their IP assets. Finally, IP litigation can help to protect a business’s future. IP litigation can help to ensure that a business’s IP assets remain valuable and can help to prevent competitors from taking advantage of them. IP litigation can also help to protect a business’s future by preventing competitors from misusing or copying their IP assets.

In conclusion, IP litigation is a valuable tool for businesses. IP litigation can help to protect a business’s valuable IP assets, can help to protect a business’s investments, can help to protect a business’s revenues, and can help to protect a business’s future. IP litigation can help to ensure that a business’s IP assets remain valuable and can help to prevent competitors from taking advantage of them.

We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets.  We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.

The European Union (EU) is one of the most technologically advanced areas in the world, and as such, it is important that businesses remain compliant with all applicable IT laws. This article provides an overview of some of the key regulations that all companies should be aware of to ensure they remain compliant with the latest IT laws in the EU.

The EU General Data Protection Regulation (GDPR) is one of the most important pieces of legislation in the EU. It sets out the rules that companies must follow when processing and storing the personal data of EU citizens. Key elements of the GDPR include the right for people to access the data that companies hold on them, the right to be forgotten and the right to data portability. Companies must also ensure that they are transparent about how they are using personal data and must have appropriate measures in place to protect it. The EU Network and Information Security (NIS) Directive is another key piece of legislation. It sets out the requirements for organizations that operate “essential services” such as energy, transport, healthcare and banking. The Directive requires these organizations to take appropriate measures to protect their networks and information systems from cyber-attacks. This includes ensuring that they have appropriate security policies and procedures in place, as well as measures to detect, report and respond to cyber-attacks. The EU Digital Single Market Strategy is a set of rules designed to ensure that businesses can operate freely and fairly in the digital world. It includes measures to make sure that digital services are not subject to unreasonable restrictions, that businesses can compete on a level playing field, and that consumers have access to a wide range of digital content and services. This includes ensuring that copyright laws are respected and that online content is not blocked or filtered unnecessarily.

Finally, the EU e-Privacy Directive sets out rules for the use of cookies and other tracking technologies. Companies must inform users about how they are using cookies and must obtain the user’s consent before using them. Companies must also ensure that any information collected through cookies is kept secure and is only used for the purposes for which it was collected.

We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets.  We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.

Contract law is an area of law that governs the enforcement of contracts and the related legal implications. It is a complex and multifaceted field of law that is applicable in many different scenarios. The European Union (EU) has its own set of contract law regulations that are specifically tailored to the needs of the EU. It is important for businesses, lawyers, and individuals to understand the basics of contract law in the EU in order to effectively navigate the legal landscape.

At its core, contract law in the EU is based on the principle of freedom of contract. This means that parties are free to enter into contracts as long as they do not violate public policy or any other applicable laws. The terms and conditions of the contract must be clearly defined in order to be enforceable. This includes the rights and obligations of each party, the duration of the agreement, and any other relevant details.

The EU also has a number of specific laws and regulations that apply to contracts. These include the European Union Consumer Rights Directive, which provides a set of minimum standards for consumer rights in contracts, and the General Data Protection Regulation (GDPR), which regulates the processing and handling of personal data.

In addition to specific laws, the EU also has a number of general principles that apply to contracts. These include the principle of good faith, which requires that parties act in a fair and reasonable manner. The principle of reasonableness also applies, which states that the terms of the contract must be reasonable and not impose an undue burden on either party.

Finally, the EU also has a number of rules that regulate the formation and execution of contracts. These include the requirements for a valid offer and acceptance, the capacity of each party to enter into the contract, and the rules of consideration. Consideration is a term that refers to the exchange of something of value between the parties, such as money or goods.

Contract law in the EU is an important and complex area of law that requires an in-depth understanding of the laws and regulations. It is important for businesses, lawyers, and individuals to understand the basics of contract law in order to effectively navigate the legal landscape.

We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets.  We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.