AI software like ChatGPT or Midjourney can produce amazingly good images. But the question of trademark or copyright infringement is becoming more and more common. For example, if an image is generated with the Pope in a clearly recognizable Balenciaga outfit, are ownership rights being violated and if so, which ones? Japan has now found an initial answer to this. Could this be a role model for Germany?

In Japan, the copyright law was recently adapted with regard to the use of artificial intelligence. The background was, among other things, that manga are created with AI software and these created manga often replicate a certain artistic style. What is new is Article 30-4, which deals with the use of works for AI software.

According to this, it is generally permitted to train an artificial intelligence with existing works by different artists (for the sake of completeness, it should be noted that this does not apply if the use goes beyond what is necessary or unreasonably harms the interests of the copyright holder).

Japanese copyright law can therefore be viewed as very liberal in principle when it comes to the use of data for training AI software.

AI: Copyright in Japan for creative expression

However, a special feature arises when the learning process of the AI ​​software focuses on a single creator. According to the Japanese Ministry of Culture, a group of copyrighted works created by the same person can be considered a distinct style.

Since these works usually have specific details and therefore a special “creative expression”, they are protected by copyright. If AI software is trained on such works and the image generated by the AI ​​reflects the creative expression of a specific creator, then there is a copyright infringement.

Regardless of whether one likes this development or result in Japan or not, it at least represents an attempt to grasp the legal challenges associated with the creation of AI works. The question arises as to whether this Japanese approach would also be possible in Germany.

Copyright and AI in Germany

The legal situation regarding copyright infringements by artificial intelligence (AI) in Germany has not yet been conclusively clarified. According to the current legal opinion and situation, an AI itself cannot at least not be recognized as an author, since works are defined according to Section 2 of the Copyright Act as personal intellectual creations that must be of human origin.

Since there is no “human creation”, works created by AI are not protected by copyright. However, users of AI technologies and developers of such systems find themselves in a legal gray area, especially when AI software processes data and content protected by copyright.

This is where Section 44b UrhG comes into play, which legalizes the use of copyrighted works for training AI, so-called “data mining”, under certain conditions.

However, the question of liability for copyright infringements by AI has not yet been resolved. In Germany, liability depends on the specific circumstances of the infringement. Depending on the case, the user, but in individual cases also the developer or provider of the AI ​​software, could regularly be held liable.

Legal problems could arise in particular if AI software is used to generate content that resembles or reproduces copyrighted works, i.e. in particular if the AI ​​copies a copyrighted image from the Internet or combines several such images in such a way that that the original images are still clearly visible.

For Germany, it can currently be said that there is no copyright on AI-generated works and the legal situation regarding copyright infringements is not always clear. Finally, the question arises: Can the development in Japan also be groundbreaking for Germany?

Disadvantages of Japanese copyright law for Germany

In my opinion, it must first be noted that the recent changes to Japanese copyright law are in clear contrast to the German legal situation. In Germany, authorship is clearly defined as a human creation.

The introduction of a law that recognizes AI as a possible author or that specifically protects an artist's style would lead to a fundamental redefinition of authorship, which raises far-reaching legal questions and entails corresponding consequences for the handling of copyright.

In addition, enforcing such a law is likely to be difficult in Germany, as it would have to be clarified to what extent an AI software has reproduced an artist's style and whether this constitutes a copyright infringement. This could lead to a flood of litigation that would be difficult to manage, especially if the assessment criteria are unclear.

Advantages of Japanese copyright law for Germany

On the other hand, the “Japanese way” shows a way in which creative professions can be better protected from unauthorized reproduction and commercial exploitation of their styles by AI systems. This would strengthen the creative sector and give creators more control over the use of their works.

Clear rules about who and what is protected by copyright when works are created using AI software could increase legal certainty for developers of AI applications as well as artists and content creators.

Finally, protecting individual style could incentivize artists to continue creating high-quality and unique works, knowing that their personal style is legally protected and cannot be easily reproduced by AI software.

Assessment: Copyright and AI

Based on these considerations and taking into account the German legal culture and tradition, the arguments against adopting the Japanese regulations seem to me to outweigh them. The German legal situation places human creativity at the center of copyright law and attaches great importance to a clear distinction between human and machine creation.

Adapting to the Japanese model would require a fundamental change in this understanding, which would create more problems than it would solve.

As a consequence, this means that we must continue to ask ourselves the question of how we protect works created by humans when they can be used and imitated by AI software without any special effort.

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