SERBIA Trends and Developments Contributed by: Stevan Pajović, Tamara Simić Pajović, Medo Zornić and Jelena Stoljiljković, T-S Legal
that this could dilute accountability rather than clarify it. To conclude, in accordance with domestic positive legal regulations, content generated by AI does not constitute a work that can be attributed to the author- ship of AI itself. The inability of AI to be considered the author of the content it generates leads to two possibilities: either the work produced by AI falls into the public domain, or another individual is recognised as the author of that work. Legal status and possible classifications of AI-generated content Artworks in the public domain are works on which no person has the right of ownership, ie, they are part of the general cultural and intellectual heritage of humanity that is freely available for anyone to use. The question arises whether, from the point of view of “incentive theory”, it is at all necessary to extend the system of copyright protection to works generated by AI, or whether it is more rational to treat such works as part of the public domain. Also, even if it is assumed that these artworks are not part of the public domain, it may be possible to protect them with other legal mechanisms such as the “right of the first publisher” (publication rights) or through the introduction of a new related right similar to database producer rights, which would de facto protect the investment in the AI system. All of these issues should be explored from both a legal and an economic point of view before favouring a solution. From an economic perspective, the allocation of rights over AI-generated content directly influences innovation incentives. If outputs are freely accessible in the public domain, developers may lack motivation to invest in expensive models. Conversely, granting overly broad rights may stifle downstream creativity and limit public access to machine-generated cultural goods. The optimal balance remains unresolved. On the other hand, the authorship of a work generated by AI could eventually be attributed to a natural per- son. Who that person could be depends on the extent of creative influence over the final product, and poten-
tial candidates are primarily the programmer who cre- ated the AI system and the user whose instructions (prompts) initiated the content creation process. The programmer of the AI system could be considered as a possible author, given that artificial intelligence is based on a computer program, the author of which is a natural person ‒ the programmer. However, the problem with this solution is that, at least in the case of new forms of AI (deep learning and artificial neural networks), there does not seem to be a direct causal link between the software developer and the final gen- erated result, ie, systems capable of generating com- pletely new content. There is already judicial practice on this issue; in the case of Rearden v Walt Disney Co ., the American court took the position that films made using Rearden’s software could not be consid- ered derivative works of the software, as although the software performed a significant part of the work, the decisive share of creative expression in the film was attributable only to the employees of the Walt Disney Company. Content generated by AI is rather an expression of instructions or prompts given for the creation of cer- tain specific content, so recognising the authorship of the AI user could be a more acceptable solution. However, it should be borne in mind that the mere selection of data and its classification by the user is not enough to fulfil the requirement of “originality.” Recognition of authorship in favour of the user would be possible only where the user makes a real and essential contribution to the operation of the AI sys- tem in the creation process, that is, if the key creative choices are made by the user and not by AI. Therefore, to the extent that the content generated by AI is an expression of the user’s creative spirit or the message that they wanted to communicate to the audience, and to the extent that such an outcome can be foreseen by the user, such content may be regarded as the user ‘s work and the user may be recognised as an author. In the event that the gener- ated content is the creative result of both human and machine decision-making, content that is the result of choices made by AI should be excluded from copy- right protection. Only independent human contribu- tions are protected by copyright.
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