In accordance with its national strategy for Artificial Intelligence1, France is tackling a central issue concerning the use of copyright-protected content by generative AI technology.
On 12 September 2023, several members of the French National Assembly from the Renaissance - President E. Macron's party - introduced the law proposal n°1630 which aims to "secure Artificial Intelligence through copyright" (hereinafter the "Proposal") by amending the French Intellectual Property Code (the "IPC").
The Proposal introduces four new obligations in the IPC, which are as follows:
1. Obligation to obtain an authorisation from the author (or IPR holder) before integrating copyright-protected material into an AI system.
The Proposal states that "the integration of works protected by copyright into an artificial intelligence software system, and consequently their use, is subject to the general provisions of the [IPC], and thus requires authorisation from the author or IPR holder". It is provided that such authorisation must be obtained prior to using any protected work.
As a result, AI providers would need to verify whether the content they use to train their AI systems is protected under copyright, and obtain the prerequisite authorisation from the IPR holder in advance.
2. The legitimate IPR holders of an artificial work created without any human intervention are those of whom the works were used to create said artificial work.
This Proposal may be viewed as controversial in that it does not appear to comply with Article L.111-1, paragraph 1, of the IPC, which states: "The author of a work of the mind enjoys an exclusive intangible property right over this work, by the sole fact of its creation, which is enforceable against all parties."
With the exception of composite works, the author of a work can only be a natural person. Thus, granting copyright to a work generated by artificial intelligence, without any human intervention, may be viewed as contradicting the humanist philosophy of French intellectual property.
3. Transparency obligations regarding AI-generated works.
The Proposal contains similar transparency obligations to those set out in the EU AI Act. Accordingly, the caption "work created by AI" and the author's name of the work which inspired the artificial work would be mandatory.
4. A new tax to be paid by AI providers to the copyright collective management organisation.
When an artificial work is created from works of an unidentified origin, a tax intended to enhance the value of creation would be established for the benefit of the copyright collective management organisations ("organismes de gestion collective"). Such tax would be imposed on the company that is operating the AI system used to create the said artificial work. The specific tax rate would be determined by a decree.
The Proposal is now set to follow the standard legislative procedure and to be discussed in the French Parliament. It remains to be seen whether this Proposal will be adopted. While it does pinpoint to the difficult issue of protecting IP rights in an ever-growing AI world, it also raises the controversial issue about whether such law would have the negative effect of stifling innovation and AI development in France.
In the meantime, the trilogue discussions on the EU AI Act are continuing, with a final adoption of the text to be expected before the end of 2023.
Contributor: Nathalie Hadjadj-Cazier
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