A painting created without any human touch, a symphonic work without a composer, a novel without an author… Content produced by artificial intelligence (AI) stands before us as one of the most striking examples of our digital evolution:
What is AI-generated content? AI-generated content can now appear in a very wide range. For example, a company’s need for a commercial can be easily met by AI at a lower cost and in less time. We see that even companies’ logos are now AI-designed. But how will companies protect their rights regarding AI-generated contents? How will people be prevented from claiming rights to AI-generated contents? For example, what kind of regulations will be made in Intellectual Property and Competition Law in case two AI-generated commercials are very similar to each other?
The biggest problem that arises in terms of intellectual property appears to be the ownership issue. This ownership problem challenges the concept of “human creator,” which is a fundamental assumption of intellectual property laws, and new legal frameworks are needed.
WIPO’s Approach: International Intellectual Property Policies and AI
The World Intellectual Property Organization (WIPO) is conducting comprehensive studies to establish an international framework for intellectual property rights of AI-generated content. WIPO’s official position and regulations on this subject are as follows:
In its consultation process titled ‘AI and Intellectual Property’ launched in 2019, WIPO tried to establish fundamental principles regarding copyright protection of AI-generated content. WIPO’s report titled ‘Artificial Intelligence and Intellectual Property Policy’ dated 2022 presents the most current approach on this issue. WIPO has adopted the following concrete position on the ownership of AI-generated content: copyright protection can only be provided in cases where human intervention exists in the expression of intellectual creation. This principle was confirmed in 2021 in the case of ‘Thaler v. Comptroller-General of Patents, Designs and Trade Marks.’ In this case, WIPO expressed the opinion that the AI system (DABUS) could not be accepted as the inventor of an invention. The concept of ‘minimal human intervention’ was further clarified in WIPO’s technical document dated 2023
According to this, just entering a prompt into the AI model or adjusting parameters is considered “minimal intervention” and does not guarantee copyright protection of the content. “Meaningful and creative human contribution” is required for the content to be registered.
EUIPO’s Approach: EU Intellectual Property Regime and Legal Practices
The European Union Intellectual Property Office (EUIPO) has established binding regulations and case law within the European Union regarding the registrability of AI-generated content. EUIPO’s approach is based on concrete decisions and clear guidelines: In its official guide titled ‘Artificial Intelligence and Intellectual Property Rights’ published in 2023, EUIPO clarified the status of AI-generated content. According to this guide, content entirely produced by artificial intelligence cannot benefit from trademark, design, or copyright protection as it does not contain the creative expression of a human creator*. This principle is emphasized in the European Court of Justice’s decision ‘Infopaq International’ No. C-5/08. Based on the ‘C-401/19’ case dated 2023, EUIPO rejected a trademark registration application for a series of visuals created by AI. In summary, it has been stated that a registrable work must reflect the personal touch of its creator, and an AI system’s output cannot meet this criterion unless it contains creative choices specific to humans. *In EUIPO’s directive that came into effect at the beginning of 2023, a requirement was introduced to explicitly indicate the use of AI in intellectual property applications. This disclosure should detail how AI was used, as well as the nature and scope of human contribution. Applications that do not comply with this transparency rule can be rejected on the grounds of ‘incomplete or misleading information.
AI in Turkish Law:
Law No. 5846 on Intellectual and Artistic Works “FSEK” does not contain special regulations for AI-generated contents, however these contents are evaluated in light of existing provisions. The definition of “author” in FSEK as “the person who created the work” and the condition that the work “carries the characteristics of its owner” has revealed that it is necessary to have a “person” for us to legally speak of a work, and this makes it difficult to register AI-generated contents. In Turkish legal practice, works produced entirely by AI, without human intervention, cannot be protected under FSEK; however, works that emerge where AI is used as a tool and the human creator provides meaningful contribution can be protected.
Conclusion: Legal Roadmap for AI-Generated Contents
International and national regulations on the branding and registerability of AI-generated contents are still in the development stage. The common point of the WIPO, EUIPO, and FSEK approaches we have examined is the central importance of “human creativity” and “contribution.” From a competition law perspective, when evaluating whether similar contents produced by AI algorithms constitute unfair competition, how the algorithm is directed and to what extent human creativity is involved will be determinative. In this regard, although we can freely use AI-generated contents in today’s world, it cannot be claimed that we have “Copyright” over them. It is of great importance that the legal frameworks that will regulate this area in the future both encourage technological innovations and protect the rights holders.
Meral Su Kalkancı