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Generative Artificial Intelligence (AI) describes algorithms that can be used to create new content, including audio, images, text, videos and more, based on the data they have been trained on, unlike traditional AI systems that are designed to recognize patterns and make predictions.

The rapid spread of Generative AI resulting from recent breakthroughs in technology has raised many issues in various legal aspects, from competition to privacy, from consumer protection to intellectual property rights. Two positions are currently emerging: a liberal approach to protect the incentives to innovate through self-regulation is contrasted by those who call for legislative intervention to impose clear safeguards and regulations.

AI tools and applications are trained on a great number of materials that are protected by copyright, like news, books, images, videos and music. The creative industries are, therefore, among the first where a number of important copyright questions have arisen, presenting practical problems that are subject to reflection and debate. 

  • How to identify the author of a work generated by AI?
  • Is it lawful to use third-party (copyrighted) content to "train" AI models?
  • Who holds the rights to exploit the licence?
  • Should AI app developers pay a license for use of the copyright works as input into their models and on what basis?

In order to address the challenges set out above and provide answers to the rising concerns of the creative industries, policy-makers around the world have begun debating whether the regulatory and legislative frameworks need to be changed. The US has been active in providing guidance by the Copyright Office, stating that when an AI technology determines the expressive elements of its output, the generated material is not considered the product of human authorship and is therefore not eligible for copyright protection. The UK has taken a more pro-innovation approach, focusing at this stage on safety features and guardrails, on the basis that AI regulation currently does not necessarily require legislation immediately. Europe is emerging as the toughest standard of AI regulation with the AI Act proposal, which would be the world’s first comprehensive set of obligations and regulations in the wake of rising concerns (all AI systems will need to be assessed depending on the level of risk).

Unsurprisingly, in this context AI companies are trying to be proactive by offering voluntary self-regulatory commitments to minimise the need for regulatory intervention, like the ones announced by the US Biden-Harris Administration in the summer. At global level, a number of initiatives are taking place to discuss a common and uniform framework of AI governance. 

Given the fast pace of both technology and policy responses, all businesses need to stay up to date with the ongoing developments in legislation, regulation, consultations and litigation in this area. Based on their specific profiles, they should set out a strategy to understand the landscape and engage with policy-makers to influence the outcomes. 

Article written by Andrea Appella who recently re-joined HSF as Consultant for TMT, Competition, Regulatory and Trade. Andrea’s professional and academic expertise is competition/regulatory law and intellectual property law with a particular focus on the media/tech industries, where he held senior in-house positions in international groups including Head of Global Competition at Netflix. He is currently a Visiting Professor at Kings College Dickson Poon School of Law in London, where he teaches the course “Competition and Intellectual Property in the Media Industry: Law and Practice” in the LLM program, and a member of the Innovation, Regulation and Competition Policy Centre at the Universita’ Europea in Rome. He collaborates with the Italian Ministry of Culture on audiovisual and movie policies, copyright and the impact of new technologies (like the metaverse, AI and NFTs) to the arts and creative industries, as well as a Non-Governmental Advisor to the International Competition Network appointed by the UK Competition and Markets Authority.

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