Upphovsrättens plats i en tidsålder av generativ AI

Sammanfattning

In recent years artificial intelligence has risen in popularity. In relation with the increased interest, we have also seen new applications with said technol-ogy. One of those uses are called “generative AI”. Generative AI is able to create different kinds of works through user made instructions referred to as “prompts”. What was of interest to many was the ability of generative AI like “Midjourney” to create artworks based on those instructions to fit the users request. But while the technological advancements developed quickly the same could not be said for the legal framework. One problem that arose was the question surrounding how these artworks came to be. These artworks are created by an AI that learns through a process called “text- and datamining” (TDM). This process requires that the AI make digital copies of other works in which it then uses this to learn and extract data from. The issues with copyright appear when the copies that the AI makes are re-productions from copyrighted works. In this paper this process will be stud-ied and how this process relates to Swedish and EU law. What will be studied is the so-called DSM directive that regulates the TDM process, in which it will then lead us to article 5 in the infosoc directive that contains a potential exception to copyright. What will be analysed is if gen-erative AI can fulfil the conditions for this exception as well as EU’s view on copyright. This is done to get some insight into the future for generative AI. What leads to some issues for generative AI is the conditions concerning legal use as well as the fact that the reproduction can’t have any independ-ent economic significance. An analysis concerning different cases where these issues were raised will be done to compare it to generative AI. The conclusion that is reached is that generative AI will have some tall hurdles to climb in order to overcome these conditions because the reproduction that is created within a generative AI will most likely be considered to have inde-pendent economic significance. However, even if this condition should be met it is still unlikely that EU would let generative AI operate like this, con-sidering their rather protective view of copyright and artists ability to create.