Elaborating an Ethical Copyright System for AI: What Role for Digital Constitutionalism?

As works are increasingly produced by machines using artificial intelligence (AI) systems, with a result that is often difficult to distinguish from that of a human creator, the question of what should be the appropriate response of the legal system and, in particular, of the copyright system has become central. If the generator of copyright protection has traditionally been the author’s creative input, AI forces us to reassess what in the creative process is special in human creativity and where the creative input lies in AI-generated works. But it also poses more fundamental questions on what the copyright system should achieve and who/what it should protect. In particular, since many human authors will potentially face the competition of these AI machines on the market, new ways of remunerating creators will have to be imagined, while making sure that the copyright system does not stand in the way of these important technological developments. Indeed, many creators already (and will increasingly) use AI technologies in their creative process and there is little doubt that generative AI can potentially be a crucial vehicle for scientific and artistic development.

Drawing on recent publications and ongoing research of the author, this contribution analyses the copyright issues related to so-called “generative AI” systems and reviews the arguments currently being advanced to change the copyright regime for AI-generated works. To do so, the underlying human rights framing intellectual property laws are used as the starting point from which a balanced copyright framework for generative AI could (and even should) be derived. In particular, it argues that the theory of digital constitutionalism provides a workable theoretical framework to secure that ethical values are reflected in the copyright regime and helps addressing crucial issues such as the need for a better governance for the innovation ecosystem.

Professor Geiger is a Professor of Law at Christophe Geiger is Professor of Law at Luiss Guido Carli University and Director as well as founder of the Innovation Law and Ethics Observatory (ILEO). 

Previously to his Luiss appointment, he taught at the Centre for International Intellectual Property Studies (CEIPI) of the University of Strasbourg (France), which he led as Director General and Director of the Research Department for 11 years. In addition, he is the Spangenberg Fellow in Law & Technology at Case Western Reserve University School of Law’s Spangenberg Center for Law, Technology & the Art. 

He has also been an affiliated senior research fellow at the Max Planck Institute for Innovation and Competition in Munich (Germany) from 2008 to 2022, and President of the ATRIP, the International Association for the Advancement of Teaching and Research in Intellectual Property from 2022 to 2024.

He specializes in national, European, international and comparative intellectual property (IP) law, acted as external expert for the European Parliament and the European Union Intellectual Property Office (EUIPO) and has drafted reports on IP for European and international institutions.