Generative AI: legal issues and risks under French copyright law.

The advent of artificial intelligence in the creative sector is disrupting traditional copyright paradigms.

Creative agencies, faced with a profound transformation of their working methods, must now contend with increasingly sophisticated AI tools while respecting a legal framework designed for purely human creations.

This unprecedented situation raises fundamental questions about the protection of works and the validity of copyright assignments, placing agencies before complex legal challenges that require in-depth analysis and adapted practical solutions.

I. Legal framework of copyright in the face of AI.

French copyright law is based on a fundamental principle: the necessity of an intellectual creation emanating from a natural person.

Article L111-1 of the French Intellectual Property Code (CPI) enshrines this personalist approach by granting the author, solely by virtue of their creation, an exclusive and enforceable incorporeal property right. This traditional concept is now confronted with the emergence of creations assisted or generated by artificial intelligence.

French jurisprudence maintains a consistent position: a work can only benefit from copyright protection if it bears the imprint of its author's personality.

This requirement raises crucial questions regarding the protection of AI-involved creations.

II. Specific challenges for creative agencies.

The main difficulty lies in the legal impossibility of recognizing AI as an author. Agencies using these tools therefore find themselves in a delicate situation: how to assign rights to creations partially generated by AI?

The answer depends on the ability to demonstrate and quantify human intervention in the creative process.

Copyright assignment agreements concluded by agencies may prove fragile, or even null and void, if human intervention is not sufficiently characterized.

This situation exposes agencies to the nullity of assignment agreements, but also to the inability to bring infringement actions for clients assigned said copyrights.

III. Practical solutions and recommendations.

Agencies must implement a rigorous methodology to document human intervention at each stage.

- initial conception and artistic direction - development and refinement of prompts - selection and post-generation modifications - creative integration into a coherent whole.

It becomes essential to revise contracts to include specific clauses on AI usage, detail the creative process and human intervention, provide adapted guarantees, and clarify the allocation of responsibilities.

IV. Perspectives and necessary developments.

French copyright law will necessarily have to evolve to adapt to these new realities.

Jurisprudence on the subject is still limited, with the exception of certain European decisions \\ [1\\].

The creation of a sui generis regime for AI-involved works, the adaptation of originality criteria, and the development of new protection mechanisms are all avenues to explore.

In conclusion, creative agencies must adopt a prudent and methodical approach in their use of AI.

Precise documentation of the creative process and the adaptation of contracts become essential elements of their practice.

This evolution of practices will have to be accompanied by a broader reflection on the adaptation of copyright to new technologies.

This issue is part of a larger debate on the place of AI in artistic creation and the need to maintain a balance between technological innovation and the protection of creators' rights.

Creative agencies are at the heart of these issues and must develop practices that allow them to navigate between these different requirements while protecting their interests and those of their clients.