INTRODUCTION Contributed by: Dale Cendali, Joshua Simmons and Dana DeVlieger, Kirkland & Ellis LLP
infringement occurs in the use of generative AI, the copyright holder could obtain injunctions against the user, the developer or the service provider. Governing law: If the result of the copyright infringement occurs in Japan, then Japanese copyright law applies. Similarly, in claims for injunctive relief, Japanese law will apply to infringement occurring in Japan. In addition, Japanese law is more likely to apply when the server collecting the training data is located in Japan, when infringing AI outputs are gener - ated by a program running on a server in Japan, and when a service provider publicly transmits infringing outputs created by generative AI to users in Japan. In addition to the “Report on AI and Copyright Issues”, the Study Group on Intellectual Prop - erty Rights in the AI Era produced its interim report in May 2024. The interim report primarily considered risks of generative AI to intellectual property, and the protection of AI-based inven - tions. It concluded that, to fully address the risks regarding generative AI, the law needs to use a combination of the Intellectual Property Act, technology law and contract law. Finally, the Japanese Ministry of Economy, Trade and Industry produced the AI guidelines for busi - nesses, the “Guidelines for Utilization of Genera - tive AI for Content Creation” and the “Checklist & Guidance on AI and Copyright”. These docu - ments provide practical guidance for develop - ers, providers and users working with AI. While these reports and guidelines are not legally bind - ing, they provide valuable information to those working with AI in Japan.
The USA There are several prominent cases involving AI that are working their way through the fed - eral courts, most of which address the use of copyrighted works as inputs to train AI models. These cases include The New York Times Co v Microsoft Corp; Silverman v Open AI, Inc; and Kadrey v Meta Platforms. None of these cases have reached a verdict yet. In this time of relative uncertainty in US intellec - tual property law, there are theoretical concerns about the outputs of generative AI, including the extent to which generative AI programs create unauthorised derivative works, infringing the copyrighted works used to train the AI model. The right to create derivative works belongs to the copyright holder. Yet when the output of a generative AI model reproduces or resembles elements of the copyrighted works used to train the model, one could argue that such output constitutes copyright infringement through the creation of an unauthorised derivative work. Such concerns have only been amplified since the Supreme Court’s 2023 decision in Warhol v Goldsmith, which sharpened the distinction between uses that are merely derivative and those that can be considered transformative, and therefore potentially non-infringing. Digital evolution of trade mark law in Spain In Spain, one key area of interest is the protec - tion of trade marks in virtual environments. The development of NFTs, growth of online branding, and expansion of the metaverse have caused both Spain and the European Union to revise their trade mark practices. The US “MetaBirkin” case, finding that NFTs of Hermès’ famous Birkin bag infringed Hermès’ trade mark, highlights the issue of how trade marks should be treated in the digital space. In
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