Chapter 1 - Rethinking the concept of creativity and its legal framework
1. From Greek "Techne" to Generative Artificial Intelligence: The Fascinating Evolution of the Concept of Creativity
The ancient Greeks employed the word "techne" to express the concept of "art", cleverly linking it with the notions of "expertise", "know-how" and "creative competence." Many centuries later, between the eighteenth and nineteenth centuries, Anglo-American copyright doctrine established an illuminating theory whereby a work qualifies as authentically creative when three fundamental elements converge in its creation: "skill, labor and judgement". Here we find, with surprising relevance, an echo of the "creative skill" of the ancient Greeks: the ability to choose the most suitable chisel to sculpt marble, the art of skillfully mixing oil colors to spread them effectively on canvas, the skill in harmoniously orchestrating instrumental parts to compose an engaging symphony.
During the twentieth century-or perhaps as early as the final decades of the nineteenth-the ancestral concept of techne in creative fields became increasingly intertwined with the modern notion of "technology." Innovative forms of creativity emerged that could not do without technological support: from photography, with its revolutionary mechanical processes (think of the seminal court case of Napoleon Sarony's photo of Oscar Wilde, quoted extensively in this book), to digital graphics and electronic music, all the way to our own times, times in which the vast majority of creativity is necessarily expressed through software and algorithms. Today, with the exception of the more traditional arts such as sculpture, painting, and the choreographic arts, all creative forms transit, in whole or in part, through digital tools: writing in all its declensions, contemporary music composition, photography, cinematography, advertising and editorial graphics, industrial design, interface and service design, architecture, and software development. These activities are predominantly executed via computers or other increasingly sophisticated digital devices (tablets, professional cameras, cutting-edge smartphones), employing specialized software designed for specific purposes.
In the past few years, however, we have taken another significant leap forward, definitively entering a new technological and creative era. Generative artificial intelligence systems no longer represent mere passive tools in the hands of authors, but take on an increasingly complementary and surprisingly purposeful role. Starting from human input, these systems are able to come up with innovative and totally unexpected solutions, opening up previously unimaginable creative scenarios.
The creative process still remains initiated and controlled by the human being, but a significant part of "skill" and "labor" is assumed by artificial intelligence. The human being is undoubtedly left with the "judgement": the fundamental creative choices about the input to be provided and the careful selection of the output to be published and disseminated as a completed work. The human being accurately determines the direction of the generative process and judges with artistic sensitivity when the output fully meets his or her creative needs, deciding the appropriate time of its "crystallization" into a work usable by the public. Expertise transforms and adapts to the new paradigm: traditional skills specific to each artistic form are no longer exclusively required, but the importance of "fine tuning" of the AI system emerges overwhelmingly. Conscious choice (judgement) becomes the indispensable cornerstone of the new creativity, allowing authors to proudly claim "I created this with AI" instead of just passively saying "this was generated by AI".
Of course, all this holds true only when the human user genuinely adopts a creative mindset; it certainly does not apply in cases where we passively allow the machine to operate independently, accepting whatever initial output it generates, perhaps by relying on pre-compiled prompts.
Nevertheless, it is undeniable that within this complex and rapidly evolving landscape, the author's role is undergoing a profound transformation-one so radical that many copyright scholars struggle to formulate new and appropriate interpretative paradigms. Classical copyright law, which emerged in the eighteenth century during the era of literature, painting, and symphonic music and was predicated on the inescapable assumption that an author must be human, now reveals clear conceptual and practical limitations. How can a markedly "human-centered" legal institution adapt to a world in which creativity is deeply intertwined with technology and in which there is increasing talk of an author "hybridized with the machine"?
The legal world will inevitably need its physiological time to develop adequate responses to these challenges, and it will be my endeavor to keep interested audiences constantly updated on these developments. In the meantime, it seems essential to develop an in-depth and systematic reflection on the role of the author and its rapid evolution in this new technological revolution, which even from its earliest beginnings shows us the extraordinary speed of the changes taking place and those to come. Can we already begin to speak concretely of a "hybrid author" or a "meta-author", as some visionary thinkers have begun to suggest?
2. Authors not human but not artificial either: the parallelism with works created by animals
During my teaching and outreach activities, when discussing non-human creations, I often draw a parallel that invariably evokes curiosity and sympathy: the comparison with works created by animals.
2.1. Most emblematic cases
Chronologically, the first documented case raising questions about the protectability of such works emerged in the early twentieth century with paintings partially created by a donkey named Lolo. The term 'partially' is significant here: the donkey was largely guided by a human artist through fundamental steps such as color selection and brush placement. Furthermore, the artist himself (Frenchman Roland Dorgelès) subsequently modified the sketch produced with the animal's assistance, thereby making a substantial, if not decisive, creative contribution.
An early documented case of works created autonomously by animals, albeit with human encouragement and assistance, is that of Congo, a chimpanzee who began making pencil scribbles on paper at just two years of age and eventually produced approximately four hundred drawings and paintings, including in color, with some of them exhibited at the Institute of Contemporary Art in London. His abstract and Surrealist-style works were explicitly appreciated by the likes of Picasso (who had one hanging in his house), Dali and Miró, and over the years they were also auctioned off for very high sums.
Then there is the story of Pigcasso, a sow painter originally from South Africa who is known for being the first animal to have her own exhibit and for signing her works with an imprint of her nose.
Impressive are videos of some trained elephants able to pick up a brush with their trunk and draw a stylized image of an elephant on the canvas. In this case, however, there are ethical doubts about the ways (probably cruel or otherwise not respectful of the animal's nature) in which such elephants were trained to behave in this way.
Finally - saving the best for last - a case where the art of the animal is perhaps less refined but the copyright debate is instead very heated (and still open): the famous Monkey Selfie in which a female cynopithecus (more commonly, macaque) appears to be smiling while taking a photographic self-portrait. The story dates back to 2011 when nature photographer David Slater, during a photo shoot in an Indonesian nature reserve, allowed several macaques to "play" with his equipment. The result went beyond expectations, as one of these animals took two photos of itself that closely resemble what we now call a "selfie", and in one of them it even appears to be smiling. Slater released these images, highlighting them as the first "animal selfies" in history, and they garnered significant attention; however, he soon encountered an unexpected copyright dilemma. Can the photographer really claim a copyright on those images for merely owning the equipment and setting it up in the park for the macaques to use? Perhaps not. The fact is that those photos have been reproduced over and over again by various sites, including those of the Wikimedia Foundation (Wikipedia, Wikimedia Commons), as public domain images and therefore free of any constraint, angering Slater who has taken legal action (so far remaining ineffective) and has never shown any acceptance of the situation.
But why can this parallelism with "bestial creations" help us better understand the problem of the relationship between generative artificial intelligence and copyright? Because even then, the underlying doubt is much the same: can the animal or the machine own copyright? We could also leave the question far more general and broad and ask whether they can be rights-holders, but then we would probably enter into a very intellectually stimulating discourse that cuts across philosophy, but which risks getting out of hand and losing the focus of this book.
Staying on the level of...
