On September 12, 2023, eight French lawmakers from the Assemblée Nationale put forth a legislative proposal with the intention of reforming the norms in existing French copyright law to adapt it to the age of generative Artificial Intelligence (AI).
Primarily, there are four articles in the text of the proposal which contemplates amendments to the pre-existing articles in the French Intellectual Property Code (IPC). In essence, the four proposed articles seek to address the complexities associated with use of copyrighted works in the development and operation of AI systems, issues pertaining to authorship and copyright ownership in works generated by AI. Perhaps the most interesting one is that of taxing companies who use data belonging to third parties for training AI models. While intended to reform the IPC, the proposed amendments fall short of achieving the intended outcome. The breakdown of the articles is discussed in brief below:
Article 1 amends article L 131-3 of the IPC (Transfer of author’s rights) by supplementing a paragraph at the end which requires authorisation of the authors or rights holders before integrating copyright-protected works into an AI system. It is a settled principal in law that any usage of the works protected under copyright require the permission of the author or owner of the works unless such usage is a part of the fair use exceptions in the legislations of applicable countries. Given that the IPC does not contain any provision that will make the works protected by copyright accessible to companies developing AI models without authorization from the authors of such work, the amendment sought to be done in the current provision is, at best, clarificatory in nature as it seeks to codify what is impliedly a part of author’s exclusive umbrella of rights. What is although interesting is the placement of this provision as part of the provision that deals with assignment of copyright. Is the intention of French lawmakers to somehow have retrospective effect, reinforcing the author’s exclusive right to permit usage of its work for AI training, thereby opening a can of worms for all assignments previously done? The process of deliberation in the French Parliament will have to be followed to understand the fate of this provision.
Article 2 amends article L 321-2 of the IPC which deals with collective management organisations by supplementing nine paragraphs to the existing article which assigns ownership of AI generated works to authors or assignees of the work which were used to create the AI work without any human intervention. This is perhaps the most controversial article proposed since the implications of the same are far beyond the one anticipated by the lawmakers. In a hasty attempt to vest ownership of AI created outputs, this article not only recognizes that AI outputs have copyright and thus protectable under law but it also vests the ownership of AI output with those authors or assignees whose works made it possible to create such artificial work. While we are all familiar with the concept of joint authorship and ownership under copyright, the biggest problem with the addition of this article is how exactly does one determine the authors or assignees of the works that have contributed towards the creation of a single AI work when the AI is not trained on one single data set emanating from one single author/assignee? As of date, there is no tool which allows a user to extract specific content pieces from AI generated work and detect all the authors or copyright owners who contributed towards creation of such AI generated content pieces.
Article 3 amends article L121-2 of the IPC which deals with the exclusive right of publication of a work. The proposed article lays down transparency obligations insofar as inclusion of a caption to identify a work as AI generated work and inclusion of names of all authors who led to creation of such AI work.
While one may find the proposals of Article 3 palatable and in the public interest, the second part of the article suffers from the same infirmities as that of Article 2, as discussed above, there is no way to effectively identify all the contributors. Also, there is a lack of clarity as to the consequences of not adhering to the requirements of such attribution.
Article 4 amends Article L121-2 of the IPC by supplementing the existing article by provisioning a tax in relation to AI work. Thise article imposes tax on the operators of AI systems, wherein the work generated by AI is based on works whose origin cannot be identified. The net effect of such addition would be taxing entities like Google, Microsoft and OpenAI to name a few who are required to pay the French collection societies. Given the lacuna in drafting of the proposed legislation as highlighted above, if the proposals contained in this Article are made applicable across all data that AI companies rely on to train their AI systems, then one may think of this as a beneficial proposition. However, since the proposed Article only applies to works whose origin cannot be determined, it falls short in creating any apparent benefit for the authors or owners, as effectively, the benefits of this article will never be experienced by creators since the revenues collected will form part of non-distributable sums, which will be distributed as per the general policies of such collection societies.
Overall, the proposed legislation by the French lawmakers is a missed opportunity, as it falls short on effectively addressing the problems associated with AI generated works. However, the future of regulation of AI is bright as key stakeholders and governments around the world are working and collaborating closely as was evident from AI Safety Summit 2023 which was hosted by UK in November, 2023.
Contributors: Romika Chawla (Associate Partner) & Amartya Mody