Category: Newsletter

Faced with the onslaught of creative and generative AIs, copyright law is somewhat destabilized on its traditional bases. The qualification of “work of the mind” stumbles on these dehumanized robots. The intellectual property code risks losing its Latin, unless it is rewritten.

 

The use of artificial intelligence (AI) by companies, especially in communication, is becoming more and more widespread. Software such as Stable Diffusion, Midjourney, Craiyon, or Dall-E 2 can create images from natural language instructions (text-to-image). It is also possible to create text with tools such as ChatGPT, a conversational robot launched in November 2022 by OpenAI (1), or even music with Flow Machines from Sony (2).

 

 

Artistic blurring of copyright

 

The uses are quite varied: illustration of a newspaper, creation of a brand, texts for a website, an advertising medium or for a post on social networks, musical creation, publication of a complex literary work, …, and soon to produce films.
musical creation, publication of a complex literary work, …, and soon to produce films. Artists have seized upon it to develop an art form called “AI art”, “prompt art” or “GANism” (3). And, sometimes, artists transform the results obtained into NFTs (4), these non-fungible tokens authenticating a unique digital asset on a blockchain. To produce a text, image or music on command, the software needs to be fed with pre-existing texts, images or music and metadata on these contents (“deep learning”). The more reliable information the software has, the more convincing the result will be. As with any technological innovation, the use of such software raises many legal issues. The central question in terms of intellectual property is to know who owns the rights – if they exist – on the content generated by AI?

 

Under French law, a work is protectable if it is original. Originality is defined as revealing the imprint of the personality of the author, who can only be a human being. It is therefore necessary to determine who is the author, or who are the authors of an image, a text or a music created through an instruction given to a software. It is also necessary to determine who can be the owner of the rights. It could be the authors of pre-existing works, ourselves when we gave an instruction to the software, or the author of the software (for example, the company Stability AI that develops Stable Diffusion). The entities operating these softwares contribute to the process of obtaining unpublished texts, images or music, insofar as it is these content generators that propose a result comprising a set of choices rather than another.

 

Thus, it is the “autonomy” of AI software that throws the traditional conception of copyright into disarray. A court in Shenzhen, China, had ruled in 2019 that a financial article written by Dreamwriter (AI developed by
Tencent in 2015) had been reproduced without permission, recognizing that the creation of an AI could benefit from copyright. Nevertheless, the software’s contribution is automated and, in our view, the technical use of software to create an image, text or music does not give the owner of the software any rights in the image, text or music: in the absence of human intervention in the choice of colors, shapes or sounds, no copyright or co-authorship can be claimed on behalf of the software.

 

On February 21, 2023, in the United States, the Copyright Office decided that cartoon images created by the AI Midjourney could not be protected by copyright (5). The conditions of use of these text, image or music generators can confirm this. In the case of Dall-E 2, the “Terms of use” expressly state that OpenAI transfers to the user all rights on the texts and images obtained, and even asks that the content thus generated be attributed to the person who “created” it or to his company. Stability AI grants a perpetual, worldwide, non-exclusive, royalty-free, irrevocable copyright license for all types of use by Stable Diffusion, including commercial use. But in the absence, in our opinion, of any transferable rights, these provisions seem to be mere precautions.

 

 

Rights of the person using the software

 

It is therefore essential, for any person who wishes to use, commercially or not, the contents created via generative or creative AI tools, to check if the company operating the online site where he creates them gives him the rights and under what conditions. Since the creative contribution of the person who gives instructions to the image, text or music generator is limited to the production of an idea implemented by the software, and since the ideas are not protectable by copyright, it is doubtful that a court would recognize the quality of author to this person. Since the user of the software does not mentally conceive, in advance, the content obtained, it is difficult to argue that this content bears the “imprint of his personality”. But above all, one could go as far as denying the qualification of intellectual work to the images, texts or music created by the AI. Indeed, the code of the intellectual property (CPI) grants the protection of the copyright only to “works of the spirit” created by humans.

 

 

“Work of the mind” inherent to the human being

 

In the absence of a positive creative action on the part of a human, one could argue that no “spirit” is mobilized, and therefore no “work of the mind” protectable by copyright is created. If they are not “works of the mind”, the contents thus created would then be intangible goods under common law. They are appropriable not by copyright (6) but by possession (7) or by contract (general conditions granting ownership to the user). They are then creations free of rights, belonging to the public domain. This echoes other types of authorless “works” such as the paintings of the Congo chimpanzee or the famous selfies taken in 2008 by a macaque monkey. In the latter case, the American courts decided that the self-portrait taken by a monkey was not a protectable work because it was not created by a human, who is the subject of rights. On the other hand, as soon as the result obtained is reworked and a formal personal contribution transforms this result, the qualification of “work of the mind” can be retained, but only because of the original modification brought to the result produced by the software.

 

This case is moreover provided for in the “Sharing & Publication Policy” of Dall-E 2 which asks its users modifying the results obtained not to present them as having been entirely produced by the software or entirely produced by a human being, which is more an ethical rule, of transparency, than a legal requirement. In French law, a new work that incorporates a pre-existing work without the participation of its author is said to be “composite” (8). If the pre-existing works are in the public domain, their free use is allowed (subject to the possible opposition of the moral right by the right holders). On the other hand, incorporating without authorization a pre-existing work that is still protected constitutes an act of infringement. If, for example, one gives the instruction “Guernica by Picasso in color”, one will obtain an image that integrates and modifies a pre-existing work. Picasso’s works are not in the public domain and the rightful owners must be able to authorize or prohibit not only the exploitation of the image obtained and request its destruction, but perhaps also prohibit or authorize the use of Picasso’s works by the software.

 

The production and publication by a user of a “Guernica in color” could therefore constitute an infringement; but the integration of Guernica in the software’s database (deep learning) alone could also constitute an infringing act (9). Indeed, the CPI punishes the fact of “publishing, making available to the public or communicating to the public, knowingly and in any form whatsoever, software obviously intended for the unauthorized making available to the public of protected works or objects” (10). The “manifest” character of the making available, and the qualification of “making available” itself could be discussed. But it is above all the European directive “Copyright” of 2019 (11) that could come to the aid of the operators of AI generating content by offering a securitization of their use of protected pre-existing works. It provides a framework for the exploitation of protected works for any purpose, including commercial, in order to extract information, particularly in the case of text, image or music generators. It also provides for the possibility for the holders of rights on these works to authorize or prohibit their use, except for academic purposes.

 

Such an authorization can hardly be prior and the operators, OpenAI for example, therefore set up procedures for reporting the creation of infringing content (12). The site Haveibeentrained.com offers to check whether an image has been provided as input to image generators and to report one’s wish to remove the work from the database. But artists are already complaining about the complexity of obtaining such a removal (13). As we can see, the irruption of AI creations disturbs the intellectual property law, whose current tools are insufficient to answer the questions raised. We can imagine that AI will one day allow us to produce “fake” sculptures of Camille Claudel, by using 3D printing technology, or to make Rimbaud or Mozart write poems and symphonies of an equivalent – or even superior! – that they could have written and played if they had not died so young. The question of the imitation of the style of still living authors is not
without raising other debates.

 

Note: (1) – On 14-03-23, OpenAI introduced the GTP-4 version of ChatGPT. (2) – See EM@295, p. 4. (3) – “GANism” refers to Generative Adversarial Networks. (4) – Non-Fungible Tokens (NFT). (5) – https://lc.cx/ CopyrightGov 21-02-23, (6) – Only because of their creation, article L. 111-1 of the CPI. (7) – Article 2276 of the civil code. (8) – Article L. 113-1 of the CPI. (9) – Getty Images announced on 17-01-23 that it had filed a complaint against Stable Diffusion for having processed photos belonging to it in a deep learning process. (10) – Article L. 335-2-1 of the CPI. (11) – https://lc.cx/ Copyright17-05-19 (12) – Article 3d of the OpenAI general conditions. (13) – https://lc.cx/ Libération29-12-22 (14) – https://lc.cx/Procé

 

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Article written by Véronique DAHAN and Jérémie LEROY-RINGUET for the magazine Edtion Multimdedia n° 297 10 avril 2023.

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GLOBAL ASSIGNMENT OF FUTURE WORKS OF AN EMPLOYEE: TOWARDS A PRAGMATIC APPROACH

 

In principle, apart from certain exceptions such as software, there is no automatic devolution of the economic rights of an employee author to his employer. Thus, when an employee creates a work of the mind (logo, photograph, text, etc.), within the framework of the execution of his employment contract, it is he, and not the employer, who benefits ab initio from the copyright on the work created. In order to allow the employer to peacefully exploit the various creations of his employees, it is necessary to formalize a transfer of the economic rights (while respecting a certain formalism).

 

In practice, two difficulties are regularly raised, as the law is not in line with the operational reality of companies: (i) the prohibition of the global transfer of future works (article L. 131-1 of the CPI) and (ii) the remuneration of the employee for the transfer of the economic rights of the author, which in theory must be distinct from his salary.

 

In a decision dated January 25, 2023 (RG 19/15256), the Paris Court of Appeal confirms a pragmatic position that provides companies with a certain legal certainty.

 

In this case, an employee (stylist and artistic director) criticized her employer for not having paid her for the economic rights related to the exploitation of her works in the context of collaborations between her employer and other companies. She claimed in particular that the assignment clause contained in her employment contract was null in that it was a global assignment of future works and that it was devoid of financial consideration.

 

 

1) The Court of Appeal validates the clause of transfer of works “as they are created

 

Because of the rule of the prohibition of global assignment of future works, a rather cumbersome mechanism should, in theory, be put in place by employers, consisting in regularly concluding written reiterations of copyright assignments with their employee authors. In addition to the burden of this cumbersome process, the employee may change his/her mind and not ratify such documents.

 

In order to circumvent this prohibition, which is clearly unsuited to the business world and the volume of creations, practitioners usually insert a clause providing for the transfer of works, in connection with the employee’s mission, “as and when” they are created.

 

The Court of Appeal confirms the validity of such a clause on the grounds that “[…] it limits the scope of the assignment to determinable and individualizable works, namely those created by the employee within the framework of the employment contract and as and when these works are created”.

 

This decision is thus welcome in that it confirms a flexible interpretation of article L. 131-3 of the CPI. This solution could perfectly apply to regular orders made to non-salaried authors.

 

 

2) The Court of Appeal seems to validate the absence of distinction between salary and copyright remuneration

 

In theory, the employment contract concerning an employee “author” must distinguish between two types of remuneration: (i) the salary for the performance/realization of the creation and (ii) a remuneration in copyright for the exploitation of the copyright related to the said creation. This breakdown can be difficult to implement in practice as these amounts are not subject to the same tax or contribution regime.

 

In its ruling, the court states that “a lump sum remuneration that does not distinguish between the remuneration of the work and the consideration for the transfer of the copyright is lawful”. In other words, the absence of a breakdown between an employee’s salary and the remuneration received by the latter for the transfer of copyright is therefore valid.

 

Here again, the court adopts a pragmatic approach. However, it is unfortunate that the court does not explain its reasoning. In any case, in the absence of a breakdown between salary and remuneration of copyright, the entire amount paid should be qualified as salary subject to the payment of social security contributions.

 

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Article rédigé par Véronique Dahan, Margaux Parmentier et Jérémie Leroy-Ringuet.

By Mathieu GAUDEMET, Romain SOIRON et Delphine GASNE FRYE

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The French data protection authority (CNIL) recently shared its priorities for the year 2021 and announced the reinforcement of controls on compliance with the rules applicable to cookies. More specifically, from April 2021, the CNIL plans to extend its controls to verify compliance with the rules for obtaining consent.

 

As a reminder, Article 82 of the French data protection act transposes Article 5.3 of the ePrivacy Directive into French law and provides for the obligation to obtain the consent of Internet users prior to any writing or reading of cookies. On this basis, the CNIL has adopted new guidelines and recommendations  on the use of cookies.

 

Although some are exempt, most cookies require the prior consent of the Internet user.

 

When consent is required, it must be obtained prior to the deposit and/or reading of cookies and must be free, specific, unambiguous, informed, and manifested by a statement or by a clear positive act. The Internet user must be able to withdraw consent at any time.

 

Among the cookies that do not require prior consent, web analytics tools receive special attention. Although their use is widely spread, it is necessary to use them with caution because the exemption is limited. Indeed, web analytics tools can only be exempted if their use is limited to measuring the website’s audience exclusively for the website publisher and if the statistical data remain anonymous. Thus, when the data are transferred to a third party or when the cookies allow the global tracking of the user’s navigation, it is no longer possible to benefit from the exemption. It is therefore necessary to obtain the Internet user’s consent.

 

Our firm closely monitors CNIL issues and assists all its clients in their compliance process. We can, for example, produce a report on the existing situation and create an operational document for webmasters so that they can make the necessary adaptations to comply with the legal requirements.