AI Derivatives: the Application to the Derivative Work Right to Literary and Artistic Productions of AI Machines

Abstract

This Article predicts that there will be attempts to use courts to try to broaden the derivative work right in litigation either to prevent the use of, or claim protection for, literary and artistic productions made by Artificial Intelligence (AI) machines. The Article considers the normative valence and the (significant) doctrinal pitfalls associated with such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, the Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is distinct from the debate on text and data mining exceptions.

Keywords: derivative works, artificial intelligence, originality, circuit split

JEL Classification: K11, K20, L82, Z11