The protection of works created from the human intellect, under the legislations that have adopted a droit d’auter system, is centered on the relationship existing between the individual who created the work, and the piece that constitutes the protected work.
Therefore, the legal regulations which govern the prerogatives that the creator has concerning the protected work are supported on the premise that the creator is a human being, who has expressed and portrayed, in a tangible fashion, his or her idea or mental creation.
Under legal systems that have been developed from the droit d’auter tradition, it is an essential requirement that the originator of the protected work be a human individual, and the protection is directly derived from the fact that this individual, the author, has an intimate connection with his or her creation, which gives rise to the existence of the so-called moral rights, which are not renounceable, and non-assignable, and are considered to be a constitutional right.
In addition, protectable works are required to be original, and originality is understood to refer to the particular features of the creation, which makes them identifiable as becoming from the intellectual activity and expression of the author.
Therefore, a protectable work is conceived as an expression of the personality and individuality of the author, since, to be protected, the work must embody a creative result of the mental and intellectual expression of the author.
Also, regulations require that the work be expressed in a tangible fashion to the extent that it may be reproduced or divulged by any means with the capacity to publicize the creation.
In Colombia, the copyright registration agency, National Direction of Authors, has the authority to determine, on a case-by-case basis, if a particular creation complies with the requirements to be awarded the protection set forth by copyright regulations.
In a recent decision[1], the Colombian copyright agency took these elements into account when rejecting registration of three (3) works of art, consisting of images that were generated by “Artificial Intelligence derived from prompts in Midjourney.”
The copyright agency analyzed the proceeding that the petitioner carried out to obtain the works of art. In the first place, the agency described the basic features of the applicative Midjourney, which is available through the application known as Discord. To obtain a result, the user must insert certain commands, words, or instructions which are called “prompts”, which are then processed by the application resulting in the production of a group of images with elements, characteristics, colors, and figures that are developed from the words that the user provided.
However, the user has no additional control or interference in the proceeding that ends up with the creation of the images. His participation is limited to the introduction of written commands, instructions, or words. Also, the user is unable to determine the disposition of elements of the resulting images or works.
For these reasons, the copyright agency considered that the analysis showed that the participation of the applicant was limited to providing language instructions to the software, and therefore, he could not be considered to be an author, under the applicable definition in the law. Also, the agency found that the requirement of originality was not met, since the images were a result of the algorithm and did not originate from the intellectual activity and creativity of the applicant.
Taking into account that Colombian regulations do not include specific provisions addressing the rules to be applied to works created as a result of the use of AI, this decision sets forth the first analysis and basic principles that must be considered when analyzing future cases, where the scope of protection is to be determined for works that have been created with tools that involve AI.
[1] Resolution 185 of 2023
