Artificial intelligence and copyright
Artificial intelligence and copyright

A lion running through an Apulian olive grove - not particularly realistic, but there are no limits to an artist's creativity. But what about cases where no artist is involved? It is now possible for anyone to create AI-generated images using DALL-E 2, for example. How does artificial intelligence relate to copyright? Who is the author of the image? The "prompter", the programmer of the AI or nobody? We have taken a closer look at the topic of artificial intelligence and copyright.

Prompts and copyright

Prompts, i.e. the inputs with which the AI is asked to do certain things, now have an economic value. With Promptbase, there is now even a marketplace for prompts on the Internet. Prices are usually up to 5 dollars, occasionally even higher. The special thing is that one prompt can lead to very different results. The images in the following gallery are based on the same prompt (a lion in the style of the 1970s in a Van Gogh-style painting), but the results differ greatly. If you were to ask the AI (in this case DALL-E 2) again to generate images based on this prompt, you would get different images again.

This also clearly distinguishes prompts from program code for a computer program, which provide an output for a certain input. An analogy to the rules for computer programs is therefore unlikely to be possible (Section 40a UrhG).

Prompts would therefore have to be assessed as a linguistic work ( Section 2 no. 1 UrhG). A general requirement for the protection of a work is that the performance is individually unique: "It must stand out from the everyday, commonplace, usually produced" (see OGH, 4Ob94/01d on the protection of a website design). This may be rather doubtful in the case of most prompts, as they rather embody a kind of idea or a thought of what a certain end product could look like. However, such ideas are not eligible for protection.

Image copyrights

The end product, in this case the image, is not a human creation, as no human being is involved in its creation. They are therefore not subject to copyright (no "original intellectual creation" within the meaning of Section 1 (1) UrhG). The copyright also does not belong to the programmer of the AI, as he merely provides the tool.

Legal situation in Germany

Even if German copyright law differs from Austrian copyright law in some respects, the case would probably not be judged differently under German law, because linguistic works (Section 2 (1) No. 1 dUrhG) must also reach a level of creativity there, i.e. be so individual that a third party cannot easily reproduce them. As early as 1994, the Federal Court of Justice ruled that in order to be eligible for copyright protection, the work must clearly surpass the everyday, the craftsmanship, the mechanical-technical juxtaposition of the material (BGHZ 94, 276).

When might copyright apply after all?

When could the prompt and possibly even the output now enjoy copyright protection? The prompt would have to be formulated very individually. The more detailed the description, the more likely it is to be protected by copyright. If, on the other hand, the prompt is so specific that the results of the AI are almost predetermined, copyright protection may even apply to the output. This topic will certainly be a matter for the courts in the near future, the more AI is used in everyday working life. In any case, copyright protection does not apply to the images used in the article. They may be used freely. 😃

Further questions about artificial intelligence and copyright?

Would you like advice from a lawyer in the field of artificial intelligence and copyright law or similar areas? Take a look at our services and feel free to contact us at office@geuer.at or by phone at +43-1-4380072.

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