Artificial Intelligence & Intellectual Property Rights

Abstract

The purpose of this thesis is to examine and discuss whether there is an infringement of other artist’s intellectual property rights when Artificial Intelligence systems specifically, AI Image Generators, are trained on data, including visual works of art that are protected by intellectual property rights. The study includes a legal analysis of the Originality Requirement (in Danish: originalitetskrav) in the European Union and American case law regarding disputes of copyright infringement caused by the use of AI. The analysis concludes the EU court of justice will, based on the EU and American case laws, state that an AI generated image does not fulfill the requirements to be protected by intellectual property rights unless additional actions have been taken to show the AI artist’s own intellectual creation. The economic analysis examines which option, choosing to use an AI Image Generator to generate visual works of art or choosing to paint the visual works of art by hand, provides the biggest expected utility and benefit to the market. The analysis finds that the current situation in the market is neither Pareto efficiency nor Kaldor Hicks efficient. However, based on the analysis it can be stated that the expected utility will be highest by choosing to use an AI Image Generator. In continuation of the legal and economic analysis, the integrated analysis examines how to create the most benefit on the market and achieve the highest expected utility by proposing three options. The analysis determines that option three will give the highest expected utility and be superior to the current situation as well as be better than option one and option two. The analysis will also examine which of the three options can be legally implemented in the European Union. It finds that option three will meet the conditions in the case, C-55/94, Gebhard. Finally, the thesis will conclude by summarizing the findings derived from the legal, economic, and integrated analyses.