Can a Product Resulting from Artificial Intelligence Be Protected by Copyright? The Condition of Authorship in Intellectual Property Law and Beyond

Abstract

The emergence and subsequent rapid development of generative artificial intelligence systems have raised the question of whether the results obtained through such systems can be protected by copyright. Thanks to learning algorithms, AI systems themselves can make independent decisions, so that the result is generated by the software itself through a process similar to human thought. According to Article 1 of the Consolidated Text of the Intellectual Property Law, approved by Royal Legislative Decree 1/1996 of April 12, “The intellectual property of a literary, artistic, or scientific work belongs to the author by the mere fact of its creation.” This phrase encapsulates the personalist conception of copyright law characteristic of the continental European model, which our legal system follows. The original ownership of copyright belongs to the person who performs the act of creation. Throughout this paper, we will analyze whether, under our legal framework, as well as under international regulations such as the Berne Convention for the Protection of Literary and Artistic Works, and the systems of countries within the copyright tradition, it would be possible to break the traditional link between a physical person as author and a protectable work. To this end, it is also essential to understand the mechanism of interaction between the user and a generative AI system, particularly through prompts or input instructions. "We will determine to what extent the natural person using a generative artificial intelligence system influences the final result. Finally, we will examine to what extent these results could be protected through legal avenues other than copyright.