Prompts between Idea and Expression. Generative AI and the Work of Authorship

By P. Bernt Hugenholtz[*]Professor emeritus at the University of Amsterdam, Institute for Information Law. This contribution is partly based on a previous article by the author: ‘Copyright and the Expression Engine: Idea and Expression in AI-Assisted Creations’, Chicago-Kent Law Review (forthcoming 2025).

1. Introduction

For decades, the copyright protection of computer-generated creations remained a purely academic question—a solution in search of a problem. As early as in the 1960’s, debates emerged about whether art generated with the aid of computers could be protected as “works”[1]See, e.g., K.F. Fromm, “Der Apparat als geistiger Schöpfer,” GRUR 1964, p. 304; M. Fabiani, “Sind Apparate geistige Schöpfer?”, GRUR Ausl. 1965, p. 422. – but these discussions never reached the courts. With the introduction of generative AI systems like ChatGPT and DALL-E in late 2022, this topic is finally generating its own jurisprudence.

In the United States, the U.S. Copyright Office (USCO), the federal agency that is responsible for registering copyrightable works, has issued several decisions and even guidelines concerning AI-generated creations. One such decision has resulted in a federal court ruling. In China, another leader in AI technology, lower courts have also considered the protection of AI works. The first European decision on the matter comes from the District Court of Prague.