Liubov Maidanyk, Deputy Director of the IP Office

Recently, the IP Office (Ukrainian National Office for Intellectual Property and Innovations, UANIPIO) issued the first copyright certificates for works containing images generated by artificial intelligence (AI).

This event is important for the intellectual property (IP) sphere, as it forms certain key messages in the field of copyright protection. What are these messages? Let's find out.

Registration of works contained AI-generated images: the beginning of the process

In general, generative AI was and still is often perceived by authors as a threat, as creators fear that AI will replace them, deprive them of their income and the opportunity to do what they like. As a result, the existence of a certain creative industry may be at risk.

But not all creators are of this opinion. Many of them consider the use of AI in their activities as an opportunity to improve their works and give a boost to the development of creativity, rather than a danger. In addition, some authors openly talk about the presence of AI-generated objects in their works. This is confirmed by the IP Office’s copyright registration of the works containing AI generated images.

The pioneers in obtaining copyright certificates for works included AI-generated objects became:

• Margaryta Boyko, an author of the composite work - compiler of the images “Easter Cards” collection, which included AI-generated images with the author's original artistic design;
• Anna Khorolska, an author of the children's book The Enchanted Adventure of Rufus, illustrated with AI-generated images;
• Andrii Sitnikov, an author of the collection Poems of an Unfinished War, which contains AI generated illustrations.  

It is important to remember that copyright protection only applies to that part of the content that is created by humans. If images are created only using AI-generative platforms, – copyright does not arise. However, there is one moment: according to the law, the author-compiler owns the copyright to the arrangement (selection and/or arrangement) of works made by him/her, if such arrangement is the result of creative activity. Therefore, if an author has created certain images using AI and made creative efforts to arrange them, he or she has copyright not in the content itself, but in the arrangement.

 

Differences between original author's content and non-original objects

The state registration of works containing AI-generated objects, therefore, primarily outlines the latest trends in the development of generative AI and the results of its use, without any questioning the approaches to copyright that have existed for centuries.

The generation of certain objects by AI and the results of such generation are used by authors as an additional means to improve content. In particular, the same images created by AI are harmoniously used alongside classic creative content protected by copyright. This does not call into question the fact that only an original intellectual creation of the author has legal protection, and state registration confirms such ‘author's truth’.

Therefore, the use of AI generated objects does not constitute a threat to copyright. Today, however, another danger is emerging: cases occur when authors conceal information about the use of generative AI and present what is created with the help of artificial intelligence as their original content. In this way, they unjustifiably use the copyright monopoly in this case.

Such “author's dishonesty” can lead to extremely negative consequences. For example, a recent case reported by foreign media vividly illustrates what consequences can be. According to journalists, in September of this year, a man was arrested in the United States and accused of fraudulently using AI-generated music and receiving $10 million in royalties. For many years, this man uploaded music created with the help of AI to the music streaming platform Spotify and monetized the results of such ‘creative activity’, although no royalties were due for the use of this music.

As we can see, it is important for copyright protection that the author consciously discloses that a certain part of the content in his or her work is generated by AI. This will, firstly, allow to distinguish between copyrighted content and AI generated content  and avoid legal uncertainty. Secondly, it will prevent unjustified payment of remuneration for the use of AI-generated objects that are not subject to copyright protection.

National legal framework: Sui generis

At the same time, this approach does not mean that AI generated objects have no place in national legislation. The new Law of Ukraine “On Copyright and Related Rights” (No. 2811-IX of 01.12.2022), which came into force on 1 January 2023, introduced a novelty regarding a special legal regime - a special kind of right (sui generis) to non-original objects generated by a computer program (Article 33 of the abovementioned Law). These legislative provisions make it possible to define sui generis rights to AI generated objects.

It does not mean that in future, a user of programs for creating objects using AI will be able to obtain copyright for such objects, but it does mean that he or she will be able to rely on a different legal regime - sui generis. In other words, sui generis law could help to compensate for certain costs in the form of investments made by this user.

Although the provisions on sui generis still need to be improved and law enforcement practice, this mechanism is unique (as no other country in the world, except Ukraine, uses this approach) and has great potential for further development. After all, scientific and technological changes necessitate the improvement of this regime and the provisions of national legislation, as well as the elaboration of all aspects of its implementation.

Main points in brief

To conclude, the copyright registration for works containing images generated by AI is a significant event for the IP sphere, which shows that authors are ready to openly use AI.

It is also an important step to ensure the protection of intellectual property rights; to adapt to new technologies and integrate them into the creative industry, which will help improve content; to protect against possible misuse and clearly define the rights and obligations of all participants in the creative industry; to avoid unjustified remuneration payment for using “artificial” objects, and it is also an impetus for the testing and development of sui generis.