From December 5 to 8, Gostiny Dvor hosted the International Fair of Intellectual Literature non/fictioN No. 26. At the round table “Publishing, works of fine art and photographic works: points of contact,” they discussed the possibilities and pitfalls of free use of works, the difference between processing the original and violating the right to integrity, and the registration of copyrights for AI products.
Image source: non/fictioN
The meeting was moderated by Eric Valdez-Martinez, director of the Association of Copyright Holders for the Protection and Management of Copyrights in the Field of Fine Arts (UPRAVIS) and member of the expert council of the Artists/ARTISTS.RF project, supported by the Presidential Fund for Cultural Initiatives. UPRAVIS is engaged in the collective management of the exclusive rights of photographers, artists, sculptors and other authors of works of fine art.
Image source: UPRAVIS
Eric Valdez-Martinez spoke about the ambiguity and legal uncertainty of Article 1276 of the Civil Code of the Russian Federation, which provides for the free use of works of architecture, urban planning and photography located in places open to the public, if such a work is not the main object of use and is not used for the purpose of extraction profit. For example, a photograph of a monument posted in a guidebook for Yekaterinburg was recognized by the Supreme Court as a violation of copyright, and the Constitutional Court ruled that a photograph of an object does not violate the law and does not require payment of remuneration to the author.
The law allows the use of works of fine art and photography for recycling. If you remake part of a photograph, add your own background to it, or perform other manipulations, a new object of law appears, created as a result of processing. At the same time, as the expert emphasized, legal processing is possible only with the permission of the original author or copyright holder.
If you take part of a photograph and combine it with another, this violates the inviolability of the work – the author’s moral right, which is not transferable. Inviolability protects the original form of a work as the author created it. The court clearly interprets a violation of this right as a violation of copyright.
The situation with parodies created without the permission of the author remains no less difficult. According to Valdez-Martinez, “this rule applies in all countries of the world, but it is important that the purpose of using the original is precisely to create a parody effect.” A court may rule that the motive for creating a “parody” was the desire to capitalize on the popularity of the original work, and find this to be a violation of copyright.
Speaking about the possibility of registering copyrights for works created by AI, Valdez-Martinez emphasized that the official position of most countries is clearly negative. For example, the US Copyright Office revoked the rights to the comic book Zarya of the Dawn by artist Kristina Kashtanova after it was discovered that the illustrations were generated by AI.
Image source: Kris Kashtanova
But not everything is so simple: for several years now, scientist Stephen Thaler has been creating his inventions using the AI system he created DABUS (Device for the autonomous bootstrapping of unified sentience) and is trying to register the rights in patent offices of various countries. The UK and US rejected Thaler’s petitions, but he achieved success in countries such as Australia and South Africa. In South Africa, the patent system does not require examination and even a wheel can be patented there. In Australia, the patent court decided that DABUS could be considered an autonomous inventor, but all inventions must belong to Stephen Thaler.
In July 2024, the German Federal Supreme Court ruled that an invention created using DABUS could be patented because a human was named as the inventor, although the application noted that the product was developed by AI. According to Valdez-Martinez, “This turns everything upside down – if such decisions become a trend, we don’t know what awaits us.”
Image source: DABUS
Artificial intelligence poses a threat not only as a potential “creator”, but also as a major copyright infringer, in comparison with which all pirate sites and torrent trackers seem like just small children. The active collection of information by large language models from open sources has long irritated copyright holders, and the media, sensitive to such problems, try to protect their copyrights in court at the first opportunity.
In August, a group of artists who had joined in a class-action lawsuit against the developers of some of the world’s most popular image-generating artificial intelligence models celebrated as a judge cleared the case and authorized disclosure.
On November 26, former OpenAI employee Suchir Balaji, 26, was found dead in his San Francisco apartment. Balaji previously told The New York Times that OpenAI used huge amounts of Internet data without permission to develop the AI chatbot ChatGPT, which was released in November 2022. He also accused the company of creating its own YouTube video transcription software to extract data. The police said the cause of his death was suicide.
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