The rapid expansion of artificial intelligence (AI) presents an urgent economic, cultural, and legal quandary that warrants immediate attention.

Such is the premise of a draft bill introduced to the French National Assembly on September 12, 2023, by a group of eight legislators. The bill, with its four key articles, seeks to align the nuances of creations generated by AI platforms, like ChatGPT or Midjourney, with the existing statutes of the intellectual property framework.

The proliferation of these innovative tools prompts critical inquiries: Should the individual instructing the algorithm be deemed the creator? Do works derived from extensive databases of preexisting works constitute infringement? And does an output deliberately emulating a particular artist's style violate that artist's intellectual property rights?

The bill's four articles aim to address these conundrums. However, it's becoming evident that practical application could prove challenging.

The inaugural article proposes an amendment to Article L.131-3 of the French Intellectual Property Code, stipulating that the incorporation of protected works into AI training databases is contingent upon compliance with copyright regulations. This implies that the utilization of preceding works would require "consent from the creators or their legal beneficiaries."

Article 2 confronts a similar predicament, asserting that "In instances where an AI independently creates a work without direct human intervention, the exclusive rights belong to the creators or their successors of the utilized works that facilitated the conception of said AI-generated creation."

Additionally, this article dictates that the creators are to be compensated via the traditional collective rights management system. Yet, it fails to delineate the process by which rights organizations would ascertain the original work's contributors behind the AI-produced piece.

Article 3 mandates the inclusion of the generative method and the originators' names of the employed works in every AI-generated work, as an extension to Article L.121-2 of the Intellectual Property Code.

Conversely, Article 4 introduces a provision for AI-produced works to be subject to levies for the benefit of the designated rights management collective.

In essence, the bill advocates for enhanced traceability of AI-generated works and fortified protection of the original creators' rights within this novel paradigm—eschewing the safeguarding of the generated work or its direct creator.

This noble intention seeks to uphold the moral rights of authors, as enshrined in Article L121-1 of the Code: every creator is entitled to the "recognition of their name, status, and oeuvre."

Yet, this ideal clashes with the logistical behemoth of processing the vast data sets needed to train and operate generative AI systems. As the founder of Midjourney disclosed to Forbes, deploying a hundred million images was instrumental, and securing consent from every implicated artist is likened to a Herculean endeavor:

"It would be ideal if the images included metadata denoting the copyright proprietor. Alas, they do not; no such registry exists. There is no mechanism to trace an image found online back to its proprietor and validate its authenticity."

Consequently, work traceability emerges as a pivotal concern, particularly for intricate algorithms such as neural networks.

For instance, can a piece crafted by an AI, under the directive of an author and based on antecedent works, be classified as an original work bearing the author's personal imprint?

Moreover, how should a collective management organization equitably distribute rights remuneration among the myriad of contributors to the AI's creative process? This ambiguity, coupled with the AI's inherent opaqueness, portends potential for complex legal disputes.

These pivotal issues are slated for committee review and may evolve with the legislative process.

Our IT Contracts, Data & Compliance team is poised to assist with the governance of personal data amassed through your commercial activities.

For further inquiries, please engage with us directly.