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French text proposal: Regulating Artificial Intelligence through copyright law

Updated: Nov 16, 2023

The French National Assembly recently proposed a bill to regulate the use of artificial intelligence (AI). The bill, which was introduced on September 12, 2023, aims to address the legal, cultural, and economic issues posed by the rapid development of AI technologies. It aims to protect authors and artists from the unauthorised use of their works by AI systems, ensuring fair compensation and fostering innovation and diversity in the arts.

The bill begins by recognising the urgency of addressing the challenges posed by artificial intelligence. It is noted that AI technologies are advancing rapidly, posing a number of unanswered questions and posing a potential threat to industries dependent on copyright law for revenue. The bill emphasises the need for legislative action to protect authors and artists in accordance with humanistic principles and the French Code of Intellectual Property.

The bill references articles L. 112-1 and L. 121-1 of the French Code of Intellectual Property, which protect the rights of authors over all intellectual works and grant authors the right to respect for their name, quality, and work, respectively. The bill argues that these existing laws should be expanded to include works created or influenced by artificial intelligence.

As an illustration, the bill cites "The Next Rembrandt," a painting created by an AI system in 2016, 351 years after the death of artist Rembrandt. This case demonstrates how AI has the potential to disrupt traditional categories and poses a threat to the arts, photography, literature, music, and journalism, among other industries.

The French proposed legislation n°1630

The text can be resumed as follows:

Article 1

The first article proposes an amendment to Article L. 131-3 of the Intellectual Property Code to require AI systems to obtain authorization from authors or rights holders before integrating copyrighted works.

Article 2

The second article introduces new provisions to Article L. 321-2 of the Intellectual Property Code, stating that only the authors or rights holders of the original works used to create AI-generated works are entitled to copyright protection.

Article 3

The third article mandates that any work generated by an AI system must be labelled as such and must also include the names of the original authors whose works contributed to the AI-generated work.

Article 4

The fourth article proposes a taxation system that will benefit collective management organisations when artificial intelligence-generated works are derived from works of uncertain origin.

General Comments

The proposed legislation represents an important step in addressing the complex issues surrounding artificial intelligence and copyright law. By seeking to extend existing copyright protections to works influenced by AI, the Bill aims to ensure fair remuneration for authors and artists while promoting innovation and cultural diversity. Nonetheless, the Bill also raises significant concerns regarding the ethical limits of AI and the feasibility of implementing such regulations.

In the digital age, the proposed regulations governing the intersection of Artificial Intelligence (AI) and copyright law represent an innovative approach to protecting intellectual property. Nevertheless, the practical implementation of these regulations is fraught with obstacles ranging from technical complexities to ethical quandaries and legal ambiguities.

Challenges in the practical implementation of AI and copyright law

Identifying AI-Generated Works

One of the initial obstacles is the identification of AI-generated works. While the proposed regulations mandate labelling AI-generated works, the enforcement of this rule is easier said than done. The increasing sophistication of AI technologies makes it difficult to distinguish between human-created and AI-generated works.

Tracking and Attribution

Attributing original works used in AI-generated creations poses another technological challenge. With AI systems often trained on vast datasets, tracking each piece of original work can be a Herculean task. This is crucial for ensuring that original authors receive fair remuneration.

As AI technologies advance, their output becomes less distinguishable from human output. Whether it's a work of art, a musical composition, or a written article, the quality of AI-generated works has improved to the point where it may be difficult for even experts to distinguish them from human-created works.

Failure to correctly identify AI-generated works may lead to ethical issues such as misattribution and plagiarism. If an artificial intelligence-generated work is incorrectly identified as human-created, it may receive praise or financial benefits that belong to human artists or the creators of the AI system. Given the punitive nature of copyright law, which could result in hefty fines and legal disputes, the incorrect identification of a work as AI-created when it is actually human-created is particularly concerning.

Unfortunately, the French text remains silent on how identification could be carried out in practise and makes no technological suggestions that could help with identification, such as blockchain, metadata, AI audits, etc.

Economic Equity

The proposed taxation system for AI-generated works could be viewed as a method of wealth redistribution. However, determining the fairness of such a system presents ethical challenges that are disputable. Who will benefit most from the collection system: the original authors, the AI's creators, or the general public?

The conundrum of originality and creativity in AI-generated works

Copyright law is based on the concepts of originality and creativity, which serve as the criteria for determining whether a work is eligible for copyright protection. However, the advent of Artificial Intelligence (AI) in the realm of creative works has muddied these waters, raising complex questions about what constitutes originality and creativity when a machine is involved.

Originality and creativity have traditionally been intrinsically linked to human agency. The "creative spark" or "personal touch" that a human brings to a work is regarded as essential for it to be considered original or creative.

Originality in legal terms typically necessitates that the work was created independently by the author and possesses at least a minimum degree of creativity. This is a subjective criterion that varies from jurisdiction to jurisdiction, but typically excludes works produced by automated or mechanical processes.

Whether AI-generated works are eligible for copyright protection has the most immediate legal ramifications. If they are referred to as "works," it implies that they are creative and original, which challenges the very foundations of copyright law.

It is difficult to determine in this context what "works created by AI" implies in the French text. Nonetheless, it is an essential first step towards discussions.

This work is licensed under CC BY-NC 4.0


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