Creativity in crisis: are the creations of artificial intelligence worth protecting?
Up until recently, intellectual creation and inventiveness were purely human activities, and their protection systems, that is, copyright law and patent law, have been built on the basis of motivating and enhancing human creativity. This ancient and self-evident assumption is being challenged due to AI technology today. This article explores the concept of creativity in the field of law from a legal point of view, as well as the impending serious moral and social consequences.
In the field of copyright law, intellectual creation is inextricably linked with humans and cannot be replaced by any advanced AI system. This results from the legal definition of work, and in particular from the element of “originality”. The Court of Justice of the European Union (CJEU) in its rich case law validates this position. In the field of patent law, ingenuity is also associated with a natural person through the moral right of inventorship. Here, however, the inventor's intellectual endeavor derives from the field of cognition, while fields of human intellect concerning personality in general are not involved in the inventive activity nor are crucial for obtaining a patent. However, it is doubtful whether AI-generated inventions can be protected under patent law for other reasons.
Furthermore, decoupling the question of creativity stresses the need for specific legal protection of AI-generated works and inventions. Legislating a sui generis right in order to boost innovation, protect competition and maintain a healthy market for intellectual creations is suggested as the best option.