Artificiell intelligens inom upphovsrätt och behovet av internationell harmonisering

The development of artificial intelligence (AI) has accelerated rapidly in recent years, and AI tools that can be used for advanced cognitive and perceptual tasks are appearing in all areas of life. It did not take long before it was also realized that AI could be used for literature and art. In a matter of seconds, advanced works of art and literature can be produced at the touch of a button using so-called generative AI. This has led many to question whether, to what extent and on what grounds protection can be obtained for this category of works. Compared to other areas of law, intellectual property law, and in particular copyright law, has been subject to extensive international harmonisation efforts. This is because intellectual property rights, which, unlike tangible goods, cannot be physically confined within the borders of a particular country, are by their nature highly international. The desire to ensure that the rights of national authors are also protected abroad, together with the value of intellectual property rights as international commodities, has therefore led to a number of international conventions, such as the Berne Convention for the Protection of Literary and Artistic Works, which together establish a harmonised global minimum level of protection for copyright works. The advent of AI in the field of copyright raises the question of whether this relative global consensus has been disrupted. Unlike previous technologies that have impacted copyright, AI is fundamentally new in that it reduces the need for human creativity, or perhaps replaces it altogether. Even at this early stage, it is clear that different countries have taken different approaches to how AI works should be protected under their respective copyright regimes. In the United States, a series of decisions by the United States Copyright Office suggest that the use of so-called prompts to create works is not considered sufficient for copyright protection, regardless of how many such prompts are used. In contrast, countries such as the United Kingdom, Ireland, New Zealand, Hong Kong, India and South Africa offer specific protection for works created by computers without human intervention, and countries such as Canada and India have allowed the AI tool itself to be registered as a co-author of the work. This raises the question of whether the international copyright framework is sufficient to deal with developments in AI, or whether there is a need for further harmonisation. The paper examines this question from a number of perspectives, including economic, ethical and legal. The conclusion is that several circumstances indicate that further harmonisation is desirable, at least from a Swedish perspective.

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