20/06/2024
For the last few years, the subject of generative AI in terms of copyright, specifically regarding image and video generation, is quite heavily disputed.
Currently Ukrainian legislation provides at least some level of explanation. The “sui generis“ right under Article 33 of the Law of Ukraine "On Copyright and Related Rights" is one of the most controversial.
"Non-original objects generated by computer program(s)" were also included in the scope of protection of the Act. These objects are considered non-original because they are generated by a computer program independently, without the participation of a person in its creation, without a creative approach, after automatic analysis of a certain amount of data - photos and videos. The results of the activity of such programs are protected by the right of a special kind (sui generis from the Latin - originality, uniqueness despite similarity) - as a result of the creation of a non-original object, personal non-property rights do not arise, because these rights can arise only from a real person. However, some subjects (authors of a computer program) can enjoy a special kind of right to such a non-original object and have a certain amount of property rights.
At this point in time, most programs provide their users with generated images, while demanding from them the right to use generated content, prompts and the right to provide generated objects for use by all third parties. This means that the user has no property rights, thus under such conditions, one can not talk about “sui generis” rights, since the user will not be able to exercise property rights to the generated content - prohibit someone from using it.
However, a number of platforms specify in their terms of use, that they do not claim the generated content in any way and allow the user to use texts and images for commercial purposes. Therefore, in this case a Ukrainian user can claim their “sui generis“ right, in regards to the generated content.
So for now the existence of such a right is determined by the developer of the AI ​​generator, and before declaring “sui generis”, one would need to thoroughly familiarize themselves with the terms of use of the program. Most accession agreements do not provide for the emergence of a “sui generis“ right, as they expressly prohibit the user from exercising property rights similar to the rights of the author - in particular, prohibiting and allowing the use of the work.
Thus the issue of sublicensing generated objects remains open, since such objects are not subject to copyright protection under the legislation of the countries in which the developer companies are registered.