Until a few months ago, the guiding question of copyright, the one you had to answer in order to decide whether and how much protection to grant an intellectual work, had mainly to do with how original and creative a work was.
But while the concept of originality has always had a fairly clear definition (a new work, not copied, not trivial); creativity has been a more complex criterion to apply, because it speaks of the bond between the work and whoever made it, of the author’s free and creative choices, their discretionary choice about the way in which to express an idea (among all the ways in which it is possible to do so).
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It is no longer surprising that the advent of AI changes the context so radically as to make it necessary not only to reformulate the requirements for protection, but also to redefine the concepts themselves.
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If ante AI creativity did not interrogate the who behind those discretionary choices, but only the how they were exercised, today, in order to assess the protectability of a work created with AI, case law requires the recognition of a “sufficiently human contribution”.
Who is behind that work? What choices were made? Is there a recognisable human footprint?
But, actually, the law does not ask us to demonstrate that the work looks human (debating whether a human work and one made with AI are distinguishable is an endless revival of the 1950 Turing Test). Nor to count a minimum percentage of tasks carried out by a human.
We are being asked to understand, and demonstrate, how human a work is. Whether there is someone expressing an intention in that work, whether there is someone with whom the viewer can enter into dialogue, or conflict, or contact. Someone with a body, a thought, a recognisable emotion.
Even if art has probably never been a question of beauty, of aesthetic pleasantness, today even its protection becomes more clearly a question of relation, of tension, of lived experience seeking contact with the other.
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The shift to make is from an epistemic axis to a relational one. A copyright, therefore, that doesn’t look anymore at the work itself, at how original or creative it is. But it centres the person on the other side. Its identity, its intentions, its way of seeing the world.
And in AI co-generated works, human choices, the authorial footprint, gets recognition primarily in the creative process. It is exactly there that we put much of ourselves. Which models and techniques we choose, the curation of data, what instructions we design, what we automate and how, where we put our tension, what we discard and why.
These are all decisions that define the author behind the output.
That define our freedom of choice, behind the output.
Lately, protecting “creativity” in the age of AI seems to be chasing an extremely intimate, almost romantic interpretation of art: art as relation, as exposure to a different from ourselves, art as exploration of other, and others, worlds.
An art, therefore, that saves us from emotional homogenisation and standardisation. Because not all love songs move us, it happens only when they touch something in us, when the body, the thought, the emotion, and the intention, of the artist collide with our own.
Here it is why copyright today can be much more than a (fallible) system of economic redistribution, much more than a mechanism of opt-in or opt-out.
Copyright can become, indeed, a tool of resistance.
To oppose an extractive model, dangerous not only for its economic and social effects, but because it leaves without recognition the identity of those who produced that content with their own time, their own experience, their own body.
To fight back against a system that devalues one of the most important things for human beings, creativity, and makes it increasingly easy not to think. To delegate one more piece. To accept that human contribution itself (always made up of time, experience, gaze, identity) can be extracted without asking permission.
Being aware and documenting what one chooses and why, signing the creative process, means assuming an intellectual attitude that goes well beyond the legal requirement. It is the trust in and the search for that tension, for that other.
It is a stance that recognises, certifies and values the fact that what we think, create, express is ours. That that footprint belongs to us. That we still possess, to put it with Orwell in 1984, those «few cubic centimetres inside the skull».
Not only that,
When it comes to AI, caring about human choices (even if one is not an artist), wanting to recognise the human in the creative process, means also strengthening the hold of some foundational AI governance’s principles: accountability, human oversight and transparency. Asking for transparency and human oversight means that inside an automatic process we can see that someone has made an autonomous decision. It means defending precisely that space of discretionary choice, that accountability, which makes of a creation an artwork and of a person an author.
Even if we are not artists, indeed, we are always authors of what we create and distribute. The fact that with AI it has apparently become simpler does not mean we can underestimate the responsibility that follows.
Today we should be asking more of copyright, not less. Reclaiming it as a living and constitutive right not only for artists, but in the broader sense of the new social role that human creativity can occupy. An important role in the defence of thought and thinking. Of people, and their choices. One that recognises the effort of putting ourselves in. The redoing, experimenting, discarding, going back.
That role which makes human beings authors and responsible for free choices.
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P.S. This article was extensively generated with Claude as well. The choices — what to keep, what to discard, how to express concepts in a coherent flow, where to put the tension, which direction to give to the thought — remain mine.
