Robot Creativity: An Incentive-Based Neighboring Rights Approach

24 Pages Posted: 23 Nov 2020

See all articles by Martin Senftleben

Martin Senftleben

Institute for Information Law (IViR), University of Amsterdam; University of Amsterdam

Laurens Buijtelaar

Vrije Universiteit Amsterdam

Date Written: October 1, 2020


Today texts, paintings and songs need no longer be the result of human creativity. Advanced artificial intelligence (AI) systems are capable of generating creations that can hardly be distinguished from those of authors of flesh and blood. This development raises the question whether AI-generated works could be eligible for copyright protection. In the following analysis, we explore this question. After a discussion of the traditional copyright requirement of human creativity, the rationales underlying copyright protection – in particular the utilitarian incentive theory – will serve as a compass to decide on the grant of protection and delineate the scope of exclusive rights. In addition, the analysis will address the question who the owner of protected AI creations should be. Finally, the discussion of pros and cons of protection will be placed in the broader context of competing policy goals and legal obligations, such as the prospect of enriching the public domain and the question of liability for AI creations that infringe the rights of third parties.

Keywords: EU copyright law, incentive theory, originality test, creative choices, artificial intelligence, algorithmic creation, machine learning, deep learning, public domain enrichment, liability for infringement, AI-assisted works, AI-generated works, disruptive effect on human creativity

Suggested Citation

Senftleben, Martin and Buijtelaar, Laurens, Robot Creativity: An Incentive-Based Neighboring Rights Approach (October 1, 2020). Available at SSRN: or

Martin Senftleben (Contact Author)

Institute for Information Law (IViR), University of Amsterdam ( email )

Rokin 84
Amsterdam, 1012 KX

University of Amsterdam ( email )

Roetersstraat 11
Amsterdam, NE 1018 WB

Laurens Buijtelaar

Vrije Universiteit Amsterdam ( email )

De Boelelaan 1105
Amsterdam, ND North Holland 1081 HV

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