Is the work mine or the AI’s?
When it comes to copyright and artificial intelligence, the most common scenario is the following: a person writes a prompt, within seconds the AI generates a result, whether a text, an image or a melody, and the user accepts it exactly as produced, without adding changes, without editing it and without selecting or rearranging ideas. Finally, they decide to publish it, use it commercially and even call themselves its “creator,” but can someone who only wrote a prompt claim rights over the final result?
In this case, human participation is so limited that it does not allow recognizing the existence of a work protected by copyright. This does not depend solely on whether the prompt is short or longer: even with detailed instructions from the user, it may fall short if the system controls the concrete form of the final result.
Copyright and Artificial Intelligence: The Gray Area of Hybrid Creation
Copyright is based on the idea that behind every work there is a person who creates it. However, reality has changed: we are living through an unprecedented technological boom and artificial intelligence has become a daily tool, capable of assisting and even facilitating the creative process in practically every field. That is precisely the dilemma: generative AI can help us write, design and even compose in a few seconds, but it does not automatically fit within traditional law. Even though the user is the one giving the instructions, the system will generate a result through a process that the person can neither control nor participate in with precision.
As a result of the popular dispute between “I created this” and “the AI made this,” a gray area appears: hybrid creation. It is an increasingly common reality, which forces us to ask when AI works as a tool and when its participation is so decisive that we can no longer attribute the result to a human person. To date, this question has no uniform answer in the world, much less in Paraguay.
When Everything Is in the Hands of AI
We speak of a result generated entirely by AI when it arises from an automated process in which there was no human intervention: the person activates the system and provides an initial idea, but does not make the decisive choices that give shape to the result, which are left in the hands of the machine.
Faced with this scenario, the international position on copyright and artificial intelligence is practically unanimous: the United States, the European Union, most Latin American countries and WIPO agree that protection is not possible, because there is no author; the main subject required by the law is missing: a natural person behind the creation.
The Thaler v. Perlmutter Case
As an example, we can briefly analyze the Thaler v. Perlmutter case, brought before the courts in the United States. It concerns a researcher who tried to register a creation produced entirely by an AI system, with no identifiable person as author. The court held that, without a person behind the creative decisions, there is no work to protect. Consequently, AI can produce the content, but it cannot be an author in the sense that the law requires.
When the Person Directs the Process: Hybrid Creation
At the other extreme we find the AI-assisted result, also known as hybrid creation. In this case, AI stops being the main engine and becomes a tool within a creative process that remains human: the person edits, corrects, adds their own elements and substantially guides the process until reaching a final version.
In this scenario, authorship can indeed be claimed, with one key detail: protection may not extend to the entire work, but only to the portion attributable to human creativity that can also be distinguished from what the machine contributed.
The U.S. Copyright Office explains it simply: the selection, coordination, arrangement or creative modifications made by a person can be protected, but not the content produced autonomously by the AI.
What Must a Person Do to Protect the Entire Work?
There is no exact formula or percentage rule that determines it, and an extremely detailed prompt does not resolve it either. What matters is not how much the person participated conceptually, but which creative decisions they made so that the final result is the way it is and can be recognized as the author’s work.
The Central Criterion: Who Made the Creative Decisions?
Everything depends on answering: who made the creative decisions that are reflected in the final result?
The greater the human control over the form of the work, whether in its composition, structure, content, selection or modifications, the stronger the possibility of claiming its protection. From the perspective of copyright and artificial intelligence, AI must act as a facilitator and not as the one making the creative and expressive decisions that give the work its essence.
How to Document Human Decisions in an AI-Assisted Work
Making creative decisions is the most important part of the process, but it may be left unsupported if there is no evidence of it. In terms of copyright and artificial intelligence, protecting the result of an AI-assisted work also means taking care of and documenting the process until the final version. That is why it is advisable to leave evidence of the human decisions that shaped the work. Here are some practices that can help you:
- Do not accept the first result without modifying it: editing, combining, rearranging and transforming the material makes it possible to add a more transparent human contribution.
- Keep evidence of the process: keeping sketches, drafts, files, earlier versions and records of the modifications made can help demonstrate what decisions the person made as the work evolved.
- Start from your own material: using a text, sketch, photograph or design as a base makes it easier to identify the contribution.
- Use AI as a tool and not as an author: the person must retain control over the main decisions of the work; AI can correct errors or explore alternatives, but it must not create the structure, content or composition of the essential elements.
Technological Progress Does Not Wait for Us to Agree
While jurists, legislators and courts continue debating where to draw the line between the human and the automated, technology does not stop to wait for a verdict. Billions of pieces of content are generated with AI every day, many of them already circulating on social networks, platforms, portfolios and even in different commercial sectors, without the person using them stopping to think about whether they have an effective right over what they have just created.
That is the central challenge of this debate, which involves lawyers, courts and all of us who use these tools automatically and without thinking. Knowing how to tell how much of ourselves is in what we have just created makes the difference between being able to defend a work as our own and discovering that it never was.
Copyright and Artificial Intelligence in Paraguay: A Debate That Is Just Beginning
The question that gives this article its title, “is the work mine or the AI’s?”, has for the moment no single or definitive answer and, in Paraguay, the debate is just beginning. However, the better defined the rules of this new terrain are, the more capable we will be of creating with AI without losing authorship of what we do during the process.
Frequently Asked Questions
What happens with copyright and artificial intelligence when a work is generated only with a prompt?
When human participation is limited to writing a prompt and accepting the result as is, that participation is too limited to recognize a protected work. Even with detailed instructions, it may fall short if the system controls the concrete form of the final result.
What is hybrid creation?
It is the AI-assisted result in which the tool stops being the main engine and becomes part of a creative process that remains human: the person edits, corrects, adds their own elements and substantially guides the process.
Can AI be the author of a work?
According to the international position described in the article, no: the United States, the European Union, most Latin American countries and WIPO agree that the subject required by the law is missing, a natural person. The Thaler v. Perlmutter case, in the United States, illustrates this criterion.
What part of a work created with the help of AI can be protected?
Protection may be limited to the portion attributable to human creativity and distinguishable from what the machine contributed. The U.S. Copyright Office indicates that the selection, coordination, arrangement or creative modifications made by a person can be protected, but not the content produced autonomously by the AI.
How can human creative decisions be demonstrated?
It is advisable not to accept the first result without modifying it, to keep sketches, drafts, earlier versions and records of modifications, to start from your own material and to use AI as a tool and not as an author.
What is the situation in Paraguay?
According to the article, the question has no uniform answer in the world and much less in Paraguay, where the debate is just beginning.
Associate