Artificial Intelligence and Copyright Law in the EU – An Economic Perspective[*]This article has been peer-reviewed.
By Thomas Eger and Marc Scheufen[**]Dr. Thomas Eger is professor of Law and Economics at the University of Hamburg. Dr. Marc Scheufen is Senior Economist at the German Economic Institute in Cologne. The authors would like to thank the anonymous reviewer for valuable comments.
1. Introduction
Why is there a need for copyright law in addition to property rights for tangible goods? How does artificial intelligence impact existing copyright law? How does it impact desired copyright law? These questions are easily raised, but not easily answered. There are (at least) three classical justifications for copyright. This contribution positions its analysis within these three foundational concepts, employing them as a conceptual framework for examining how AI challenges and reshapes established doctrine. From a natural-rights perspective, copyright protects the inherent claims of authors over the intellectual products of their creative labor. The reward or unjust‑enrichment rationale underscores the fairness principle, which is to prevent others from appropriating creative value without compensation. In addition, the incentive‑based justification underscores the overarching social objective of stimulating the creation of new works by granting limited exclusive rights. Consequently, these perspectives provide a structured framework for assessing the interaction between AI and the current and the desired architecture of copyright law.
These philosophical justifications are, at least to some extent, implicit in modern economic reasoning about copyright. However, the emphasis is placed on efficiency rather than fairness. This suggests that the extent to which copyright law contributes to the socially efficient allocation of resources regarding the provision of tangible and non-tangible goods, such as creative works, must be examined. Although fairness is not at the center of economic analysis, that does not mean that it is not an issue. There is also an implicit element of fairness in economic analysis. It is challenging to conceive of an inefficient allocation of resources as being fair, as the waste of scarce resources is inherently unjust. However, it should be noted that the efficient allocation of resources does not necessarily guarantee fairness. The rationale underlying this phenomenon pertains to the notion that any initial allocation of scarce resources, including property rights and legal entitlements, irrespective of its fairness, ultimately results in a specific efficient final allocation of resources through the mechanism of perfectly competitive markets.
