Threatens moral incentives too

The personal touch with which the author can stamp their work is the result of a complex intellectual process; a process that incorporates mostly the deconstruction of all the elements they receive, the conscious processing of ideas, images, sounds, emotions and senses and finally the composition of the above with a conscious choice, or with a conscious randomness.

Questions about the impact of technology on human creativity were raised three to four decades ago because of the so-called computer-generated works. First, the UK incorporated in its copyright law (Copyright, Designs and Patents Act 1988/CDPA) a provision for computer-generated works, i.e., works generated by computer in circumstances such that there is no human author of the work. As provided for by the UK law, as author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. [15] Classifying a computer programme into the category of the author's tool became more widely accepted. [16] Simply put, a music software used to create new content represents an asset for the composer as does a camera for a photographer or a brush for a painter. It was a compromise option for integrating computer-generated works into the current legal system ascribing authorship to the individual who coordinates, controls, and possibly intervenes with the result generated by a computer programme. [17]

This approach could in principle be applied to works generated with the assistance of artificial intelligence insofar as there is involvement of a natural person (AI-assisted works). The crucial question, however, is the degree of the person's involvement and whether that is enough to ascribe authorship to them. It is claimed that it is not enough if the person simply causes or initiates the process without having control over the output. [18]

The essential dilemma then arises with works produced entirely by artificial intelligence (AI-generated works). In the near future, an advanced super-intelligence (ASI) system will have the ability to generate output autonomously, independent of any human involvement. At a legal level, artificial super-intelligence cannot be granted the same status as human creativity and the output it achieves cannot be equated with artworks worthy of copyright. [19] There is no doubt that artificial intelligence can successfully mimic or prove to be superior to a part of the human brain: specifically, the part that deals with the analysis and synthesis of knowledge, rules and principles, complex calculations, as well as drawing conclusions or results. However, other brain functions that are less understood have not yet become part of machine learning, such as inspiration, imagination, consciousness, expression of emotions like love, fear, etc. [20] The free and creative choices that leave the author’s personal touch, as established by the CJEU, cannot be equated with random outputs by neural networks despite the superiority of their cognitive ability in relation to humans. Even if we accept that a machine can create an artwork, this does not express anything; it does not have the interiority that originates in a human artwork. Therefore, based on an internal approach, which has moral and philosophical foundations but is also fully reflected in the legal meaning of the work, artificial intelligence’s outputs cannot be granted the same status as the works of authorship created by human beings. Further, such a change in their status in the current copyright system would completely undermine the whole foundation of moral rights.

The consequences of granting AI-generated outputs the status of copyright-protected works on a moral and social level are deeper and more substantial. Imagine a world where a robot of advanced intelligence recites its own poems after having devoured all of Elytis’s poems [21] as data or posts news on the internet by selecting headlines based on the criteria of an algorithm. [22] At the same time, imagine a society that has easy and cheap access to mass-produced culture. [23] In such an inflationary context where works of human creation cannot be distinguished from AI-generated works, it is very likely—based on supply and demand—that the human creator’s remuneration may be minimal and thus humans may lack the economic incentive to create. In this very same context, the influence of a creator's ideas, views, aesthetics and feelings on the public will fade. Undermining the communication between the creator and the public also minimises the moral motivation of creation. Taking into account that literature, art, science and culture in general have the power to shape consciences and societies, it is not difficult to imagine that if the multitude of AI outputs outlive the creations of the human intellect, there will be societies that will bear the imprint of the outputs of neural networks and perhaps of the users who control those networks.