Artificial Intelligence and Copyright

By: Santiago Morales

Is a work created entirely by artificial intelligence eligible for protection? What role does artificial intelligence play in the process of creating a work?

Thanks to the emergence of new technologies, especially the Internet, people have benefited in many ways, mainly in the dissemination of knowledge as well as the ability to access a vast world of information in a much faster and more affordable way than before. But as new technologies are advancing, new challenges and concerns also arise within different legal fields, especially those related to copyright.

Copyright is a branch of law that was born as a consequence of the technological revolution of its time, such as the printing press in the XV century, which, as a result of this discovery, generated the need to establish a legal protection scheme for the authors of literary works, as well as the creation of mechanisms to prevent their undue reproduction.

The purpose of copyright is to protect the subjective rights of authors over their creations resulting from their intellectual capacity, usually referred to as literary, musical, theatrical, artistic, scientific, audiovisual and other works.[i] To this effect, it should be taken into consideration that only the natural or natural person who makes this creation can be called an author, since it is a creative process derived from an intellectual activity that is merely attributable to the human being.

In Copyright Law, there are two main types of rights: economic rights and moral rights. Economic rights refer to the pecuniary right enjoyed by every owner of a work to be able to use it directly or indirectly, authorizing or prohibiting its exploitation to a third party, which have a specific term; while on the other hand, moral rights refer to the right of every author or creator of a work to claim the paternity of the work, which is expressed in the right to oppose any deformation or modification of his work that may cause damage to his honor or reputation, rights that are of unlimited duration.

Nowadays, as a result of the emergence of this new branch of science called “Artificial Intelligence” (or the also called “intelligent machines”), a dispute has arisen about the traditional conception of author, raising the question of whether in fact a natural person is the only one who has the capacity to create a work under the current legal regulations, and on whom lies the ownership of a work exclusively produced by a machine or intelligent program.

Since this is a very new and complex topic, there is no uniform definition that covers everything related to this new discipline, but in general terms artificial intelligence is: “The branch of computer science that deals with the design and construction of systems capable of performing tasks associated with human intelligence.”[ii] This term brings with it the connotation of the creation of computer programs to such an extent that they can perform different tasks with an ability equal or superior to that of a human being.

As an example and as one of the few cases that have had a judicial pronouncement, in China in 2019 a company called Tencent Technology Co., Ltd. (Beijing Tencent) filed a lawsuit against Shanghai Yingxun Technology Company, for copyright infringement. The defendant entity copied and published on its own website a financial article written by the artificial intelligence software called “Dreamwrite”, owned by the plaintiff entity, without having the authorization to do so.

One of the issues to be considered in this case was who was the author of this article, and whether the copying of the article by Shanghai Yingxun Technology Company could be considered a copyright infringement.

The Court of the city of Shenzhen, Guangdong Province, at the time of resolving this case, argued: That the article in question was a work product of the general intelligence of multiple teams and work divisions belonging to the company Tencent, so there was the intervention of different natural persons, to generate the algorithms that govern the “Dreamwriter” program, algorithms that allowed it to obtain all the necessary information for the creation of the article in question. Therefore, it was concluded that the artificial intelligence acted as a tool for the human being, and while this article enjoyed originality and creativity, according to the parameters of the Chinese Copyright Law, it is susceptible of protection and therefore, there was a copyright infringement by the company Shanghai Yingxun Technology, which was obliged to pay the amount of 1,500.00 yuan for such infringement.[iii] The World Intellectual Property Organization (WIPO) has ruled on this account.

The World Intellectual Property Organization (WIPO) has addressed in different discussion forums the repercussions that artificial intelligence has had in the field of intellectual property, especially on copyright law. It was in the forum entitled “Dialogue on Intellectual Property (IP) and Artificial Intelligence (AI) in the year 2019″[iv], “where it was concluded that the notion of Copyright has always been linked to the creative and expressionist spirit that every person intrinsically possesses, so that policies in relation to attributing the quality of “author” to intelligent machines or computer programs, could affect the essence on which this system exists and even discourage the creation of new works by natural persons.

In the specific case of Guatemala, article 42 of our Political Constitution of the Republic recognizes the author’s and inventor’s right, where it states that the works or inventions generated by him/her are his/her exclusive property. Likewise, Article 5 of our Law on Copyright and Related Rights, Decree 33-98 of the Congress of the Republic, defines the author as: “The natural person who makes the intellectual creation. Only natural persons may be authors of a work (…).”

Our legislation, although it recognizes that legal persons can be holders of the author’s rights (specifically, the economic rights of a work) is very clear in determining that only an individual person can be considered as an author, since only they have the capacity to create a work that is the exclusive product of their intellect. But in addition to this, every work must also have the requirement of originality, a requirement that does not necessarily mean that a work must be completely new, but refers to the fact that the work must be sufficiently different in its form of expression from those that existed before, not being a copy of a previous one.

Currently, there is no basis under which the authorship of a work can be attributed to a machine or intelligent program, since one of the fundamental and inviolable principles on which copyright is based is the intervention of the human being in the creative process of any work. In any case, it is understood that the artificial intelligence acts as a “tool” or “assistant”, in favor of the person or persons who intervened in its creation process, intervention without which it would not have been possible for a machine (or program, as the case may be) to create a work autonomously. And if this work meets the requirements of being original and creative, it may be eligible for protection under copyright law, in favor of the individuals who were part of this process.

Technology is a tool that exists to help mankind, and allowing it to acquire legal personality would bring more unknowns than answers, therefore, we can conclude that if, in a given case, we would like to protect the works created through Artificial Intelligence, the authorship of such works must lie with the individual or individuals who participated in the creation of these systems, and if they meet the requirements of originality and creativity, they are susceptible of protection under the scope of the Copyright Law.

[i] LIPSZYC, Delia. “Derechos de autor y Derechos conexos”, Ediciones UNESCO/CERLALC/ZAVALÍA, Buenos Aires, Argentina, 2001, page 14.

[ii] Article published by the Office of Scientific and Technological Information For the Congress of the Union entitled “Inteligencia Artificial”, Mexico City, Mexico, 2018, page 1 available at:

[iii] ZHOU, Bo. “Artificial Intelligence and Copyright Protection- Judicial Practice in Chinese Courts”, article published on the World Intellectual Property Organization (WIPO) website available at:

[iv] Draft Issues Paper on IP Policy and Artificial Intelligence of the World Intellectual Property Organization (WIPO), available at:

LANTERI, Paolo. “La problematica de la Inteligencia Artificial y el Derecho de Autor llama a la puerta de la OMPI”, Article published through the Instituto de Derecho de Autor y la Dirección Nacional de Derechos de Autor de Colombia, 2021, available at:

“Basic Principles of Copyright and Related Rights” by the World Intellectual Property Organization (WIPO), Geneva, Switzerland, 2016, available at:

RUBI MARTÍNEZ, Nadia. “Las Nuevas Tecnologías en el Derecho de Autor y su evolución en Colombia”, article published by Universidad Militar Nueva Granada, Bogotá, Colombia, 2006, available at: