A SUI GENERIS INTELLECTUAL PROPERTY RIGHT FOR AI-GENERATED CONTENT: ENSURING A BALANCE BETWEEN INNOVATION AND LEGAL CERTAINTY

Abstract

The article is devoted to a scholarly and practical analysis of the legal regime governing AI-generated digital content in Ukraine and worldwide, with a particular focus on the sui generis right as an optimal mechanism for protecting non-original objects. It is demonstrated that traditional approaches, which recognize only a human as an author, are insufficient for regulating relations concerning AI-generated content. Special attention is given to the sui generis right as an innovative mechanism integrated into the system of intellectual property law, providing protection for non-original digital content. It is noted that the legal regime of AI-generated content (the object) depends on the nature of direct human involvement in the creative process. If a human merely initiates the generation while the AI autonomously produces the expressive elements of the work, the resulting output is considered a non-original object created by an algorithm. It is established that the criterion for obtaining protection under the sui generis right is not originality (as required by copyright), but rather the form of expression (the AI-generated result) and the presence of substantial investment. The article examines the effectiveness of the sui generis right for safeguarding the proprietary interests of investors, developers, and users, and proposes approaches to reducing legal uncertainty in the context of digital transformation. The progressive nature of introducing the sui generis right into Ukrainian legislation (Article 33 of the Law “On Copyright and Related Rights”) is recognized, while its shortcomings are emphasized: the lack of clarity regarding criteria for autonomous generation, novelty, and rightsholders, which complicates practical application. Using the legislation of Ukraine, the EU, the United States, and the United Kingdom as examples, the article analyzes conflicting approaches to the legal regime of AI-generated content. In the EU, authorship is recognized exclusively for humans (Directive 2019/790), in the United Kingdom it is attributed to the person who initiated the generation, while in the United States autonomously generated AI content often remains outside legal protection. The article proposes legislative amendments aimed at clarifying criteria for autonomous generation, novelty, and the subjects of the sui generis right, prioritizing the interests of users and investors. It further recommends introducing a registry of AI-generated objects to enhance transparency or a mechanism for identifying AI-generated outputs.