21 April 2023

Copyright and work created by a software

The Supreme Court of Cassation of Italy, although without going into the merits of the issue from a substantial point of view, with order no. 1107 of 16^th January 2023 recognized that the work created through the use of a software can be protected pursuant to the Copyright Law.

The case

The issue brought to its attention was promoted by the author of the drawing of a particular flower, used by RAI during a well-known television program, for which she did not received the compensations.

One of the defenses of RAI consisted on stating that the flower was a digital work generated by a computer: the only intervention of the alleged artists consisted in choosing the type of software to use and approving the image generated by the system. For what we can learn from the order, the artist would have made the software acquire the image of a flower, while all the elaboration would have been carried out by the algorithm which then generated the final image.

Therefore, in the defendant opinion, the Court and Court of Appeals had made a mistake in considering the work as creative, as the work created by a machine cannot be attributable to a person.

The Supreme Court of Cassation recalled the general principles of copyright, and therefore “that creativity cannot be excluded only because the work consists in ideas and simple notions, included in the intellectual patrimony of people having experienced in the field” and that “creativity is not formed by the idea itself, but by the form of its expression, that is by the subjectivity so that the same idea can be at the base of different works, which are or can be different for the subjective creativity that any of the author spend”.

The Court considered that the image at issue was not a simple reproduction of a flower, but a real elaboration, deserving an authorship protection for its creative character.

RAI stated that the Court of Appeal had made a mistake by qualifying “as work of ingenuity an image generated by a software and not attributable to a creative idea of its alleged author”. In its opinion, it was a “digital image, a floral subject”, a “fractal” figure, that is characterized by auto similarity, meaning by the repetition of its shapes on different scales of size and elaborated by a software, which elaborated form, colors and details through mathematical algorithm; the claimed author would have only chosen the algorithm to apply and had approved later the result generated by the computer”, for this reason the artist could never be considered the author.

The court does not go deeply into this point, as, being an issue of merit, it was up to the Court of Appeal to examine it. Given a first interpretative line where it stated that “it would have been necessary an assessment to verify if and how much the use of the tool would have absorbed the creative elaboration of the artist who had made use of it”.

Conclusions

It appears that it can be stated that, according to the Supreme Court, a work created through a software is not in itself excluded from copyright protection for the fact that a technical tool is being used, but it can be protected if:

The final work results to be original and to have a degree of creativity, according to the classical parameters of copyright
The use of a technical tool has not completely absorbed the personal and creative elaboration of the author.

It is an important statement which allows to be able to dispose of a guide to evaluate creativity in works created by artificial intelligence.

In the case under exam, although the use of a software, the artist who created the flower through the algorithm was considered its author, but what about the software or the machine or the artificial intelligence which generated it?

At least for now, juridical subjectivity does not seem to be recognized to the AI and therefore to qualify it as author or, as in the case at hand, co-author of a work, but it is not sure what will happen in the future.

Laura Turini