Copyright Law: Protecting AI-Generated Creations in Mexico

Artificial Intelligence and copyright is a highly relevant topic in the current legal field, especially when considering the growing capacity of generative AI systems to produce works that could qualify for copyright protection as if they were created by humans. 

The Berne Convention for the Protection of Literary and Artistic Works (Berne), which regulates the protection of copyright at an international level, establishes in its Article 2 that the literary and artistic works it protects “…include all productions in the literary, scientific and artistic fields, whatever the mode or form of expression…;” therefore, we could affirm that if all productions in the literary, scientific, and artistic fields are protected by the convention, a production in such fields that takes place through the use of artificial intelligence will also be protected under this convention. 

Berne establishes a series of minimum rights in favor of authors, which mainly include the right to authorize the reproduction of the work, to publicly communicate it, and to make adaptations and translations, among others. This raises the question of who is the author and who will enjoy these rights when a work is created through the use of AI.

Although Berne does not establish a definition of author, it does explain that the rights granted will have a duration at least equivalent to the life of the author and 50 years thereafter. Given that the protection of the work is calculated from the life and death of a person, it allows us to assume that it refers to natural persons. However, Berne reserves the possibility for member countries to provide for a different term in the case of cinematographic works, applied art, and photography, which would not be calculated from a death.

In Mexico, the Federal Copyright Law (FCL) in its Article 12 establishes that the author is “the natural person who creates the work” and its protection lasts for the life of the author and 100 years after his death, so the moral rights belong to the author and his heirs. 

The legal dilemma is whether robots or algorithms can be considered authors or whether AI is challenging current conceptions of copyright through algorithms that could autonomously create works that would be considered intellectual, as if they were made by humans.

This issue was analyzed by the Supreme Court of Justice (SCJ) in the case ADR 131/2021, an action where the unconstitutionality of Article 12 of the FCL was claimed, arguing that this provision was against the human right to equality of Article 1 of the Constitution of the United Mexican States and international treaties. 

The SCJ determined that copyright is recognized as one of the natural rights of man. Therefore, protection is aimed at physical persons so that creators are remunerated for their work. It is believed that only physical persons are capable of being “creative” and that the creativity of a work is necessarily linked to the capacity of the human person. Furthermore, since economic rights can be transferred, legal persons are not prevented from having economic rights over the works, but only from being recognized as authors.

Finally, SCJ determined that copyright is a human right, based on the duration of which is normally calculated. It also determined that although corporations are not necessarily excluded from the protection of human rights, there are rights that correspond only to physical persons because they refer to aspects of a human nature, thus the copyright falls in this category. Therefore, only natural persons can be authors and even if a work is created using AI, it could not be considered the author of the work.

While this is the current legal framework, addressing the intersection of AI and copyright requires legislative reform to clarify the protection of works generated by AI, distinguishing between autonomous creations and those directed by humans. 

To determine whether artistic creation through AI can potentially be registered and protected by the corresponding national or international authorities, we must consider whether this creation is spontaneous or directed by human instructions. These modalities are fundamentally different in terms of their initiative and autonomy.

Spontaneous AI creation refers to the fact that, through its programming and autonomous learning, it generates a work without a specific guideline. Here, AI acts independently, using its algorithms to create something new and original based on its previous “experience” and the database it has had access to. This type of creation is unpredictable and can be considered a form of AI “authorship,” although this is controversial in the legal and philosophical sphere. While it is true that at present, the applicability, despite the potential, is little or non-existent, it is also true that, according to what is established in the regulatory body, it should not be subject to registration and protection.

On the other hand, the creation of AI based on human orders implies that a developer or user provides it with a specific set of concrete and specific indications, instructions or commands called “prompts” to create a work. In this case, AI operates as a tool in the hands of the human, who directs the creative process and defines the result. Authorship in this scenario clearly falls on the person who has provided the instructions, since AI simply executes the prompt and has no autonomy in its creative action.

In this case, the author is using AI as a tool to materialize the creation of an artistic work that should be protected by the corresponding copyright regulations. The above applies as long as it can be determined that the creation was made from the necessary “prompt” for the intellectual creation of the author. 

This would involve the creation of a specific registry/regulation for AI works that helps establish authorship and human contributions in the creative process, as well as considering a new sui generis right for works generated autonomously by AI. Such a framework should preserve the integrity of human creation, respecting the definition of art as human interpretation or imagination, while recognizing the uniqueness of AI-assisted creative production, ensuring that the simplicity of the command does not undermine the protection due to the complexity and originality of the resulting work.

There is no doubt that it will be necessary to modify the FCL or create a legislative framework to provide greater legal protection for copyright in the face of the challenges of AI. The existence of legal certainty for all the subjects in this complex equation, including AI programmers, users of this technology, and consumers, is mandatory.