Is the result of artificial intelligence legally protectable under copyright law?
With the increasing use of AI in companies, the legal challenges associated with the use of AI are also increasing, particularly in connection with the protection of intellectual property. Section 7 of the German Copyright Act states that only natural persons can be authors. Therefore, AI itself cannot be an author. Consequently, a work created solely using AI cannot be protected by copyright. A work only contains a creative contribution required for copyright protection if a natural person makes a substantial contribution to the creation of the work.
The use of aids in the creation of a work, such as the use of AI, does not preclude the creation of a copyright work, provided that the creation is based on the author’s own intellectual source (reference: BeckOK Urheberrecht, Götting/Lauber-Rönsberg/Rauer, § 7 Rn 8, 40th edition). If an intellectual creation is created with these new design options in accordance with Section 2 (2) of the German Copyright Act, the person who uses AI becomes the author of the work created by AI. However, the creator principle requires that the person is not controlled by AI. If the result of AI is to be protected by copyright, the use of AI may therefore only be used as an aid. However, for a creative activity to be assumed, it is not sufficient for the natural person to technically control the AI. Rather, the work produced as a result of the technical control must be the result of a creative design. Therefore, the author of a work is only someone who creates from their own intellectual source with the help of AI and can therefore influence the result of AI.
In practice, this means that works created purely by AI are not eligible for copyright protection and can therefore be used or edited by anyone without infringing copyright. Conversely, this means that companies should ensure that essential content that is of central importance to the company is not predominantly or exclusively generated by AI. Otherwise, these works are not protected from being copied by third parties.
Infringements through the use of AI: who is liable if the AI infringes third-party rights?
AI itself cannot be held liable for any infringements of rights due to its lack of legal personality. But who is liable if AI creates content that infringes the rights of third parties? The person who programmed and trained the AI or the person who uses the AI in the specific case or the person who uses the result of the AI? In principle, the operator of AI is likely to bear responsibility for a possible breach of legal obligations due to a breach of the duty of care (reference: Ingerl/ /Rohnke/Nordemann, Markengesetz Vorbem. zu §§ 14-19d Rn 122, 4th edition 2023).
In addition, the user of AI is also likely to be liable for any infringing result of AI if he uses it in the course of trade. According to Section 97 of the German Copyright Act, the person who uses the infringing result of an AI is liable. In copyright law, there is no acquisition in good faith and every user is responsible for ensuring that they do not infringe the rights of third parties by using any content. Positive knowledge of the infringement does not play a role in liability under Section 97 of the German Copyright Act for injunctive relief and removal of the infringement but can only exclude liability for damages.
What does this mean in practice? If content created by AI is used in the company, it should be checked whether the content infringes the rights of third parties. Otherwise, this infringement may continue if the infringing content is combined with your own content and used in the course of business.