Peru
In September 2024, the Copyright Office of INDECOPI issued two decisions regarding the registration of artistic works produced or created with generative Artificial Intelligence, such as “Artbreeder”.
Mr. Kevin Rosales submitted two separate applications to register the works entitled “Objects to color by artificial intelligence according to the alphabet” and “Animals to color by artificial intelligence according to the alphabet”.
In both cases, the Copyright Office reaffirmed two essential requirements established by Andean copyright legislation: authorship and originality. In the first case, the author must be a natural person who creates an intellectual work (Article 3, Decision 351), and in the second case, the work must display originality (Article 2, Decision 351), which implies the expression of the author’s personality or individuality, as established in Resolution No. 0286-1998-TPI-INDECOPI by the Intellectual Property Chamber of the Tribunal of INDECOPI, as well as by the Andean Court of Justice in Case 295-IP-2019, which constitutes clarified precedent:
“Originality means that a work can be distinguished from other third-party works. In his work, the author has infused elements of his own spirit. Two works could be considered original if one is not a reproduction of the other, and if each contains elements that distinguish or individualize them.
Originality requires the work to display a highly characteristic individuality, clearly and evidently reflecting the imprint of its author. Originality entails an individual and creative contribution, that is, the product of independent thought.”
Pursuant to the current Andean regulations, the Copyright Office warned that users of the platform, by means of simple prompts, can obtain complete images; in fact, different users employing similar prompts may obtain almost identical results. While the platform may generate a unique image, this does not mean that authorship may be attributed to the artificial intelligence itself, since it “lacks the ability to create with intention, artistic context, or any sense of personal consciousness. Its results are the product of algorithms that process data, patterns, and stored information derived from pre-existing creative works.”
Colombia
The Colombian Copyright Office (DNDA) has issued a series of relevant statements concerning the use of artificial intelligence in the context of copyright law. In line with arguments shared by the Peruvian Copyright Office, the DNDA has clarified that prompts or instructions, in and of themselves, are not subject to protection under copyright law, as they are considered ideas or suggestions. This position is in accordance with Article 7 of Decision 351 (Resolution No. 421 of December 1, 2023).
Furthermore, in June 2024, the DNDA issued a legal opinion in response to a series of queries from a citizen, addressing essential issues related to authorship and ownership of works generated through artificial intelligence.
First, questions were raised regarding the degree of expression found in instructions, and whether this would allow a work created by artificial intelligence to be eligible for copyright protection; additionally, whether the incorporation of individual elements into the work by a person would make it protectable. In this respect, the Colombian authority indicated that ideas are not subject to protection, but suggested that original contributions arising from the intellectual expression of a natural person could qualify for protection.
Another set of questions addressed the training of artificial intelligence with works protected by copyright. The Colombian authority recalled that authors possess both moral and economic rights (such as the rights of integrity and transformation), and, as such, authorization from the original rights holders or authors of protected works is required. The DNDA further suggested that, even if the final product or creation generated by an artificial intelligence system does not reproduce any substantial aspect of the original works used as a basis, it could still be regarded as a case of “intelligent plagiarism.”
Regarding the creation of derivative works, the DNDA reiterated the necessity for authorization from the original author, in addition to requiring that such derivative work be created by a human being. As stated by the Colombian authority: “the object of protection under the copyright regime consists of cognitive results expressed by a human being, whether originally or as a derivative of other works protected by copyright, expressly excluding creations developed by animals, machines, or information systems, as they lack the capacity to exercise creativity and to produce works that meet the legal requirements for protection under copyright law.”
Finally, the DNDA pointed out that, although there are statutory limitations and exceptions under the copyright system—listed in Articles 21 and 22 of Decision 351, as well as under Colombian national law—there are no exceptions that would allow artificial intelligence systems to be trained with works protected by copyright without prior authorization from the rights holders.