AI as a Creator : How do AI-generated creations challenge EU intellectual property law and how should the EU react?

Abstract: AI technology is becoming more present in the area of innovation and creativity, an area that for so long has been reserved for humans. Intellectual property protection is a way to incentivise these innovations and creativity, but what happens to this incentive if we extend this protection to subject-matter that derives from AI-machines? Today, the legislation does not answer how such works should be treated and there are several complex intellectual property issues raised by AI-generated creations. The general public might believe that the answer is simple – when an AI-machine creates something, the owner of that creation ought to be the programmer of the AI. However, it is not that straightforward in intellectual property law since it is intended to award innovation and creativity, qualities that typically only humans can attain. Therefore, the intellectual property laws today are not sustainable and need to be adapted to the challenges posed by AI. This thesis examines the challenges of the implied human requirement, harmonisation issues, the risks of discouraging creation and creations derivative from other subject-matter. Different solutions have been discussed in the debate and in legislative initiatives in the EU. Inspiration can also be found also from other law regimes, such as the United Kingdom, United States of America and China, and recent case-law from Australia. Some of the solutions that are in the centre of the debate are giving AI-machines legal personhood, introducing a special computer-generated works regime and to create a sui generis protection. After a review of the different options in the analysis part of this thesis, the most suitable solution for the EU, in my opinion, appears to be introducing a special computer-generated works regime where the IP holder will be determined based on the involvement in the creating process and will always be a natural or legal person. This solution will guarantee legal certainty and is in line with current principles and the general goal to promote innovation and investment.