Revisiting Authorial Intent in the Context of AI Assisted Productions

13 Pages Posted: 19 Feb 2024 Last revised: 9 May 2024

See all articles by Patricia Akester, PhD

Patricia Akester, PhD

Association Littéraire et Artistique Internationale - PT

Date Written: January 31, 2024

Abstract

The historical transition from printing privileges to copyright laws marks a significant shift, with the system’s epicenter transiting from the printer to the author, from articles of commerce to works. There follows an author centric archetype whereby works are expressions of the spirit and ingenuity of the author and the copyright system carefully safeguards their economic and moral interests. Today, copyright maxims, shaped throughout centuries, are challenged by AI systems (especially those involved in content generation) as they become increasingly sophisticated, blurring the lines between human creativity and machine production. As AI enshrines itself in the creative process, questions loom such as whether AI assisted productions should be embraced by copyright and if so how. A possibility lies, in this connection, in electing the concept of «intent to create» as a key requirement for copyright protection of AI assisted productions. There follows a theoretical exercise based on that possibility centred on the pivotal role of the «intent to create» as a fundamental criterion for copyright eligibility of AI assisted productions, positing that when a user interacts with an AI system with a genuine intent to produce a creative work, such AI assisted output could potentially qualify for copyright protection. This approach is based on the premise that an intent-driven paradigm could play a critical role in distinguishing protected from unprotected works within the AI landscape. This theoretical exploration involves defining and analysing the notion of creative intent in the context of AI assisted productions, creating a protocol aimed at authenticating the presence of such intent prior to the user’s interaction with the AI system - thereby establishing eligibility for copyright protection under an intent logic - and illustrating the practical implications and challenges of implementing this intent-driven approach by means of a hypothetical scenario.

It is concluded that while the intent logic has the merit of recognising that users may actively engage with AI systems while retaining control of the essence of their creative endeavours in the context of a dynamic interplay between human and machine, the adoption of an intent-based system to determine the copyright protection of AI assisted productions would not be devoid of challenges. On the one hand, the protection of productions which are machine generated to an unknown degree does not sit comfortably with the human authorship requirement, so that using authorial as a filtering mechanism for protection of AI assisted productions could still lead to overprotection and compromise the core principles of copyright law. Submitting a detailed declaration of intent before engaging with the AI system would require a proactive approach to creative planning and to copyright protection by the user, stressing the creative agency of the user in shaping the AI assisted production process. Hence, the authorial intent logic would guarantee a measure of compliance with the traditional copyright ethos, but only to an extent. On the other hand, setting authorial intent as a prerequisite for copyright protection, as outlined above, would require evidence of prior said intent, also carrying the risk of underprotection, as it would exclude AI assisted productions, where authorial intent is not clearly defined ab initio. Additionally, difficulties could emerge.

To ascertain the viability and effectiveness of an intent-driven paradigm in the real-world further work would be required, including pilot studies (implementing the protocol within controlled environments to observe its practical application and to identify challenges or loopholes) and stakeholder feedback (on the protocol’s practicality, fairness, enforceability, etc.), highlighting, inter alia, potential issues of overprotection and underprotection. Ultimately, intent could help shape a legal framework adjusted to the challenges and opportunities presented by AI, but the implementation of the intent logic as a key requirement for copyright protection of AI assisted productions, would have to preserve the soul of copyright while acknowledging the elaborate interplay between human creativity and AI technology in an everchanging landscape.

Keywords: Copyright Law, Copyright protection requirements, human creativity, AI, Artificial intelligence, AI assisted productions. AI assisted outputs, authorial intent

Suggested Citation

Akester, Patricia, Revisiting Authorial Intent in the Context of AI Assisted Productions (January 31, 2024). Available at SSRN: https://ssrn.com/abstract=4721214 or http://dx.doi.org/10.2139/ssrn.4721214

Patricia Akester (Contact Author)

Association Littéraire et Artistique Internationale - PT ( email )

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Portugal
910236136 (Phone)

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