Solves while maintaining access to key AI scanning tools for journalists

When the creation of a work is only the result of artificial intelligence systems, with no human intervention at all, which is thought to be only possible in randomly created outputs, this may be possible in music but hardly in news reporting, since it may result in a lack of sense. Anyway, there are some cases, for instance the Australian Acohs Pty Ltd v Ucorp Pty Ltd, which declare that a work not produced by a human cannot be protected by copyright (Gadamez, 2017). Some other cases, for instance in the European jurisdiction, insist in the decisive intervention of human beings in the final result for a work to be considered copyrightable: the Court of Justice of the European Union delat with that question in C-145/10, Eva-Maria Painer/Standard Verlags [2011], C-604/10 Football Dataco/Yahoo! [2012] [9] (p. 321).

The main point is, then, originality, and how to define it. In the mentioned European cases, it is required that the work is “the author’s own intellectual creation”, so in some way it must be (concurrently with a Civil Law, authors’ right legal tradition) an oeuvre de l’esprit: some personal touch must be found in the work. Even if artificial intelligence systems can show some creativity, meaning that they can generate works using data, patterns and algorithms, it is far more difficult to find some originality in them. Once again, the CJUE has insisted on this point, e.g., in C-5/08 Infopaq International A/S v Danske Dagblades Forening, declaring that it is essential to find some elements of personality in a work to be protected under copyright law. Whenever a human intervention is a sine qua non condition to produce the work, such a personality characteristic can be detected. Human intervention is always needed: software cannot create software, so, according to the World Intellectual Property Organization (WIPO), there are only two ways to face this problem: to deny copyright protection to works created exclusively by computers or to attribute it to the creator of the program. There is a third way in the case of news: to attribute it to the corporate entity responsible for the collective work in which this artificial intelligence systems-aided work is inserted. In this case, and the Resolution of the 2019 AIPPI World Congress con Copyright in artificially generated works insists on it, a related, neighboring, ancillary or sui generis right is needed for publishers.

To our knowledge, this has not happened yet, but it is not impossible to think that artificial intelligence systems-aided news, which may use third parties’ data, could infringe copyright whenever the origin and eventually author of the original works from which the derivative one is developed are not properly mentioned, and the corporate person who publishes it could be sued for it. Such a case will help to clarify positions, and it has been mentioned, but not developed, in the Resolution adopted in September 2019 by the AIPPI World Congress. It is not impossible, we should add, that in some cases such practices could be considered under quotation exception—or fair use in the Common Law countries—but anyway it must be examined case by case, with no need to create new exceptions [23] (p. 11), especially in legal areas such as the European Union, in which a closed list of exceptions has to be applied. Obviously, in countries where fair use or fair dealing is applied, a case-by-case approach will be needed.

Another interesting point of view is how the media manage artificial intelligence systems to automatically display some kind of information, a question that has been examined by Jop Esneijer: “Note that automated scanning of tweets and blogs for relevant content and copy or even publishing them [...] would in principle also require the authorization of the original author as these are acts of copying or making available to the public, unless they are excepted, for example because they fall under” [25] (p. 43). This is because we are dealing with derivative works.

It is different when news items are mainly created with the aid of artificial intelligence systems, in which case the attribution of paternity is shown as anonymous or attributed to the corporate person. This is consistent, as we have already mentioned, with that old distinction of the Berne Convention on Copyright of 1886–1887, which in Article 2 stated that the consideration of “literary and artistic works “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information”. The Berlin Convention of 1908 defined to a greater extent which works amongst the ones published in a newspaper were copyrightable or not, the ones that could be reproduced—always mentioning author and origin—or not. The Berlin Convention protected any work published in a newspaper, which was a great advance compared with the previous conventions, which distinguished between literary works and nouvelles du jour. In fact, the distinction was maintained in the following conventions, those of Rome (1928), Brussels (1948) and Paris (1971; amended in 1979), now in Article 2.8. This old distinction can now have a new fashion regarding the production of news items produced exclusively or mainly by artificial intelligence systems or produced under the final responsibility of human authors, but the rights on the economic exploitation of all of them are, anyway, to be recognized to copyright holders of the collective work. Some scholars have examined these cases, and concluded that the common practice is for the corporate entities to sign those news items using the company’s name, and scarcely mentioning the fact that they have been generated with artificial intelligence systems’ aid [21] (p. 13).