Over time, we have witnessed the impact of technological developments on various aspects of our daily lives, both personally and professionally. The creation of new tools, devices, and platforms has transformed the way we communicate, work, and produce content. This evolution has also extended to the processes of intellectual creation, raising new legal challenges, particularly regarding copyright protection.
As we know, intellectual property encompasses creations of the human intellect and is divided, according to their nature, into two main branches: industrial property and copyright. In both areas, legal protection is subject to specific requirements. However, in copyright matters, originality and an individual's creative expression are fundamental elements in determining whether a work qualifies for protection.
What happens, then, with images, advertising designs, promotional texts, and other materials generated through artificial intelligence?
Under the traditional concept of copyright, a creation produced exclusively by an artificial intelligence system would not qualify for copyright protection, as it lacks the human creative contribution necessary to attribute authorship of the work to an individual. This approach is grounded in the principles underlying the Berne Convention, an international instrument that serves as one of the cornerstones of the protection of literary and artistic works.
The degree of human involvement in the creative process
An image generated from general instructions may receive different legal treatment from a work in which an individual selects, modifies, arranges, and creatively transforms the elements produced by the tool. In the latter case, there may be human contributions eligible for protection, provided they meet the requirements established under applicable law.
Companies, advertising agencies, and design professionals are increasingly turning to these technologies to develop campaigns, digital publications, logos, catalogs, and other promotional materials. Therefore, it is essential to review the terms of use of the platforms involved, verify the applicable licenses, and avoid using images or elements that may infringe third-party rights.
It is also important to distinguish between copyright protection and contractual permissions to use a work. The fact that an AI-generated image does not meet the requirements for copyright protection does not necessarily mean it can be used without restrictions, as contractual terms, rights over incorporated elements, or limitations arising from other legal provisions may still apply.
Artificial intelligence represents a significant advancement for creativity and commercial activities, but it also calls for a reassessment of traditional intellectual property protection standards. The challenge lies in striking a balance between technological innovation, the recognition of human creativity, and legal certainty, while promoting the responsible use of these tools and ensuring adequate protection of the rights involved.
