As artificial intelligence (AI) continues to revolutionize the creative industry, it brings with it a host of legal questions, particularly in the realm of intellectual property. One of those questions is how to protect AI-generated designs.
AI and Copyright: A Human-Centric Law
Under current copyright laws, courts in the EU and the US seem to take the position that protection is granted only to works created by human authors. This means that AI-generated works, no matter how creative AI has been, would not be eligible for copyright protection. This gap in the law leaves AI-generated works vulnerable to unauthorized use.
Design Protection: A Viable Alternative?
Given the apparent copyright limitations, the question arises whether AI-generated designs may still find protection under design law. Under EU design law, a “design” means the appearance of the whole or a part of a product resulting from the features. A “product” is any industrial or handicraft item. In the new EU Design Package, it is clarified that this is regardless of whether the item is embodied in a physical object or materialises in a non-physical form.
Accordingly, design law is particularly relevant to fashion items or utility objects such as vases, lamps, chairs, etc, but it may also include non-physical items such as graphic works, logos and graphical user interfaces.
EU design law offers two main forms of protection: registered and unregistered designs.
- Registered designs: This form of protection requires a formal application process and payment of fees of a few hundred euros. Once registered, the design is protected for up to 25 years, providing robust legal safeguards against infringement. This can be a valuable option for businesses looking to secure their AI-generated designs, although the cost may be a consideration.
- Unregistered designs: For those seeking the most cost-effective solution, unregistered design protection is available. This form of protection is automatic and free, but it offers a shorter duration of protection of three years. While less comprehensive than registered protection, it still provides some degree of legal protection for designs.
Both registered and unregistered designs are eligible for protection under EU design law only when they meet the criteria of being “new” and having “individual character”. A design is considered “new” if no identical or immaterially different design has been made available to the public before the date of filing of the design application or its priority date (in the case of a registered design) or before the date the claimed design was made available to the public (in the case of an unregistered design). The “individual character” of a design is determined by the overall impression it produces on an informed user, which must differ from the overall impression produced on such a user by any design made available to the public before the respective dates described above for registered and unregistered designs.
The Role of Design Law in AI Creations
Design law may therefore offer a solution for protecting the appearance of AI-generated designs. By focusing on the visual aspects of a design, rather than the authorship, design law could accommodate the unique nature of AI creations. This may allow businesses using AI to create designs to safeguard their designs without the need for human authorship.
Challenges and Considerations
However, there are still challenges to navigate. The novelty and individual character requirements for design protection mean that certainly not all AI-generated designs will qualify. One may wonder whether a design generated by AI can have “individual character” at all. There have been suggestions in Belgian legal literature that the theoretical distinction between the human-centric "originality" requirement in copyright law and the "individual character" requirement in design law is elusive or negligible in practice.
A human is required to make the free and creative choices that render the design an “author’s own intellectual creation”, thus making it an “original work” that is protected under EU copyright law. Accordingly, is a human also required to create a design with “individual character”, i.e. a design that produces an overall impression on informed users that differs from the overall impression produced on them by prior designs? In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration. Does this mean that a human designer is required in order to make free choices in developing the design? Moreover, EU design law frequently references the designer or “his successor in title”, which may imply that the designer should have a legal personality. Can we assume that, in the case of an AI generated design, the designer is the person who instructed AI?
Further questions related to ownership and infringement may arise. The rapid pace of AI development and the sheer volume of AI-generated content can also make it difficult to manage and enforce design rights effectively. For example, if AI is instructed to create a design that produces the same overall impression as a prior human-generated design, this could constitute design infringement. Who would be the infringer in this case? The person instructing the AI to copy a prior design, or the AI? It is our view that the person instructing the AI should be held responsible.
Looking Ahead
As AI technology continues to evolve, so too should the legal frameworks that govern it. Ongoing discussions and potential legislative changes may eventually address the gaps in current laws, providing a clearer answer to these questions. Unfortunately, the new EU Design Package does not address AI and so it will be up to the courts and IP offices to determine whether AI-generated designs can be protected under design law.
In conclusion, while copyright law currently does not seem to recognize AI-generated designs, design law may provide a viable alternative for protecting these creations. In any case, when human designers are assisted by AI to create a new design but can also make free choices themselves that give the design a different overall impression from prior designs, the result should be a design with individual character that is eligible for protection under EU design law. Therefore, we recommend always involving a human designer at some stage.
This article was written by Lisbeth Depypere and Tiffany Perna, with the valued assistance of AI. It is part of the series “AI and intellectual property rights”, written by the IP lawyers at CMS in Belgium.
