Private Law Theory

ABSTRACT
The essay considers claims for extended property rights and the ascription of fundamental rights to artificial intelligence (AI) artefacts vis-à-vis human creativity. It argues, in principle, that recent developments in copyright and platform regulation (entirely unrelated to AI) have led to a meteoric rise of what may very broadly be referred to as claims to freedom of expression, now reflected in a broad pastiche exception. Whilst such move towards more freedom is welcome as a matter of copyright and platform uses, that development – which very much is a reflection of prior observations on the need to establish access rights and collective notions of fundamental rights – concurrently allows the AI industry to rely on pastiche as a matter of a disguised property right. Therefore, it is argued that the law must differentiate further by reconstructing artistic liberties as a right to oppose AI uses – including appropriations of styles, features and elements that are not traditionally covered under copyright law. To arrive at that conclusion, clear demarcation lines must be re-established between (1) ‘traditional’ uses of works under copyright by way of pastiche, (2) the function of the pastiche exception as claimed by human users on platforms and other socio-digital media, and (3) the difficulty whether AI – in particular, if ascribed personhood – should be able to rely on fundamental rights. At present, the debate is more or less exclusively concerned with economic arguments, often identifying gaps in copyright law that might hinder innovation for the AI industry. However, from the perspective of artists, the entire chain of exploitation needs to be considered, including the current debate on the use of works for the purpose of training machines and transparency obligations under the AI Act. The article considers only AI applications that operate in a fully automated manner – the problematic issues of partial human contributions will not be addressed.

Westkamp, Guido, Borrowed Plumes: Taking Artists’ Interests Seriously in Artificial Intelligence Regulation (April 18, 2024).