The concept of “originality” in EU law

In the context of EU law, the concept of originality is a fundamental criterion for copyright protection.

A first definition that is unanimously accepted is that originality means that the work is not merely copied from another pre-existing protected work.

However, the EU countries tend to add more to the originality concept.

According to the CJEU, originality requires that the work be the author’s own intellectual creation. This means that the work must reflect the author’s personality and be the result of the author’s free and creative choices¹.

The originality requirement does not necessitate any artistic merit. Instead, it is an objective test that focuses on whether the author was able to express their creative abilities in the production of the work by making free and creative choices, thereby stamping the work with their personal touch.

It’s important to note that the Berne Convention does not explicitly state that only original works can be protected, nor does it contain any precise statutory definition of “originality”.

However, originality is generally considered a key requirement for copyright protection in many jurisdictions, including those that are signatories to the Berne Convention.

In the context of EU law, for instance, a work may be eligible for copyright protection if it satisfies the condition of originality. As for example we saw in the case Brompton Bicycle where despite forced technical considerations, the work is deemed protectable under copyright law if that the work is the result of free and creative expressive choices.

However, the CJEU has also held that the originality requirement will not be satisfied if the realisation of a subject matter has been dictated by rules or other constraints which leave no room for creative freedom². This means that if the content of a work is entirely dictated by technical considerations, rules, or other constraints, it will not be considered original and will not be eligible for copyright protection.

The issue with assessing a “reflection of author’s personality”

The “originality” criterion necessitates a “reflection of the author’s personality,” making it a challenging and subjective assessment. Courts thus have the authority to assess each work based on composition elements or, more broadly, what they believe to reflect artistic value. The emphasis on the author’s personality leads to consideration of subjective personal opinions about which jurisdictions prevail over others.

In the Dieschburg case, the Luxembourg judge ruled that the photograph did not meet the “originality criteria” despite the photographer’s copyright registration in the US ³. The case was dismissed due to the author’s failure to provide evidence of a “reflection of personality” in her artwork. The bar is indeed extremely high and subjective! ⁴.

Art is an expression of creative freedom rather than a standard that creators must meet. Focusing on the author is not a bad criterion, but focusing solely on the author’s personality is a terrible criterion for originality.

Furthermore, there are many situations that, while conveying the creator’s personality, are not conducive to the creation of protectable artwork. Human activities like cooking and decorating reflect personality. However, we intuitively recognise that they are not artistic works deserving of protection.

In a broader philosophical sense, using the author’s personality as the primary criterion for originality reinforces the anthropocentric claim that humans are the only species capable of creating art. While the statement may be true given current technological and scientific advancements, it is not due to superior human faculties, but rather to the fact that “personality” requires legal recognition.

Originality explained: the “intention” to produce artistic works

Originality is defined as “the expression of the intention to produce an artistic work,” which we believe is more in line with the general freedom to create.

Many works of art are the result of happy accidents, but no work, no matter how elaborate, is entirely created while the author is not in a creative state or has no intention of creating.

This would explain why a photograph of a chimp or a natural landscape, no matter how beautiful, cannot be legally classified as art.

An “expressed intention to produce artistic work” criterion, on the other hand, would allow for the evaluation of human input to generative AI as a creative process, with an emphasis on the process and its preparation rather than the quality or outcomes.

Indeed, what is important and what qualifies as art is the process of thought that the authors put into the creation of an artwork, rather than the level of technicality of the finished product. In the creation process, relying on any automation tool to achieve a desired result undermines the author’s artistic intention to create a protectable work.

The phrase “expressed intention” also indicates that there are currently no AI-created works. Because the actual AI is always programmed to generate and act in accordance with its commands. As such, it is merely a tool or medium used in the human creative process. At the very least, until AI achieves self-consciousness, no work can be attributed to it.

The idea of “expressed intention to produce” simply explains the anthropocentric concept of why, at this point in science, only humans are considered authors. However, it does not rule out the possibility that AI or other species ( animal or alien) with legally recognised personalities will one day create protectable artwork.

The term “intention” should not be interpreted solely as a projection into the future to protect unrealised works or ideas. Specifically, mere intent to create does not qualify for protection. To be protected, the creation must be completely expressed and realised. The analysis based on “expressed intention to produce” does not aim to change any existing rules governing work protection. It simply states that the element of intention must be present as a starting point for the creative process, rather than as the sole condition that immediately qualifies the work for copyright protection.

The “expressed intention to produce” completes and clarifies the “reflection of the author’s personality” without raising subjective doubts about what the term “author’s personality” means. Both of these elements are always present in artwork. As a result, it is easier to confirm an expressed desire to create than to act as an art critic, examining the work for a “reflection of the author’s personality.”

Consequences of work made through AI

The core challenge in the art industry is not merely the ease with which the general public can produce art; rather, it’s the rapid shift in revenue streams from traditional artists to AI software companies. This shift is emblematic of a broader economic transformation, where generative AI is poised to contribute significantly to global GDP, potentially boosting productivity growth across various sectors, including the creative industries⁵.

This economic upheaval underscores the urgent need for copyright law to adapt, ensuring fair compensation and recognition for human creators in an increasingly AI-dominated landscape.

A pivotal moment in this ongoing legal and ethical debate was marked by a U.S. court ruling, which stated that art created by AI without human input cannot receive copyright protection under U.S. law⁶. This decision highlights the legal system’s current stance on the authorship and ownership of AI-generated content, affirming the principle that only works with human authors are eligible for copyright. This ruling is a critical juncture in the broader discourse on how copyright law must evolve to address the unique challenges posed by AI in the creative domain.

The impact of AI on the creative industries goes beyond legal considerations, prompting a rethinking of how human artists interact with and use AI technologies. The idea that AI and human creativity are mutually exclusive is out of date; instead, a collaborative approach, in which AI serves as a tool to augment human creativity, is increasingly seen as the way forward⁷.

This synergy between human ingenuity and AI’s capabilities can lead to more efficient creative processes, allowing artists to explore new realms of expression while retaining their rights and artistic integrity.

As the creative industries grapple with these issues, it becomes clear that new strategies are essential to harness the benefits of AI while safeguarding human artistry and ensuring equitable revenue distribution.

This article was originally published on LinkedIn on 16 Feb. 2024 and is republished here with permission.