Comparative Study on Copyright Enforcement of AI Generated Artwork (Thesis)

Comparative Study on The Copyright Enforcement of The Protection of AI Generated Artwork Between Law No. 28 of 2014 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) The thesis is made to meet one of the requirements for graduation. NAME: FELICIA IRENE CHRISTABELLE SURYANTO STUDENT NUMBER: 01052210001 LAW FACULTY OF LAW UNIVERSITAS PELITA HARAPAN JAKARTA 2024 i PERNYATAAN KEASLIAN KARYA TUGAS AKHIR Saya mahasiswa Program Studi Hukum, Fakultas Hukum, Universitas Pelita Harapan, Nama : Felicia Irene Christabelle Suryanto Nomor Pokok Mahasiswa : 01052210001 Program Studi : Hukum Dengan ini menyatakan bahwa karya tugas akhir yang saya buat dengan judul “COMPARATIVE STUDY ON THE COPYRIGHT ENFORCEMENT OF THE PROTECTION OF AI GENERATED ARTWORK BETWEEN LAW NO. 28 OF 2014 AND THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS)” adalah : 1. Dibuat dan diselesaikan sendiri dengan menggunakan hasil kuliah, tinjauan lapangan, buku–buku dan jurnal acuan yang tertera di dalam referensi pada karya tugas akhir saya. 2. Bukan merupakan duplikasi karya tulis yang sudah dipublikasikan atau yang pernah dipakai untuk mendapatkan gelar sarjana di universitas lain, kecuali pada bagian-bagian sumber informasi yang dicantumkan dengan cara referensi yang semestinya. 3. Bukan merupakan karya terjemahan dari kumpulan buku atau jurnal acuan yang tertera di dalam referensi pada tugas akhir saya. Kalau terbukti saya tidak memenuhi apa yang dinyatakan di atas, maka karya tugas akhir ini dianggap batal. Tangerang, meterai 6000 Felicia Irene Christabelle Suryanto PERSETUJUAN DOSEN PEMBIMBING TUGAS AKHIR ii iii UNIVERSITAS PELITA HARAPAN FAKULTAS HUKUM PERSETUJUAN TIM PENGUJI TUGAS AKHIR Pada telah diselenggarakan Sidang Tugas Akhir untuk memenuhi sebagian persyaratan akademik guna memperoleh gelar Sarjana Strata Satu pada Program Studi Hukum, Fakultas Hukum, Universitas Pelita Harapan, atas nama: Nama : Felicia Irene Christabelle Suryanto NPM : 01052210001 Program Studi : Hukum Fakultas : Hukum termasuk ujian Tugas Akhir yang berjudul “COMPARATIVE STUDY ON THE COPYRIGHT ENFORCEMENT OF THE PROTECTION OF AI GENERATED ARTWORK BETWEEN LAW NO. 28 OF 2014 AND THE AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS)” OLEH TIM PENGUJI YANG TERDIRI DARI: NAMA PENGUJI JABATAN DALAM TIM TANDA PENGUJI TANGAN 1. , sebagai Ketua 2. , sebagai Anggota 3. , sebagai Anggota Tangerang, iv ABSTRACT Felicia Irene Christabelle Suryanto (01052210001) Studi Perbandingan Penegakan Hak Cipta atas Perlindungan Karya Seni Berbasis AI antara UU No. 28 Tahun 2014 dan Perjanjian TRIPS (viii + 109 halaman) This study aims to understand the copyright protection for artworks generated by artificial intelligence (AI), focusing on the legal framework in Indonesia, particularly as delineated in Law No. 28 of 2014 on Copyright and the TRIPS Agreement. The primary objective of this research is to conduct a comparative analysis and evaluate the efficacy of copyright enforcement in safeguarding AI- generated artworks in Indonesia, using a qualitative approach with normative, statutory, and conceptual analyses to identify legal challenges and lacunae within existing regulations. While copyright law acknowledges both moral and economic rights for creators, current regulations lack clarity regarding the role of AI in the creative process. Creating ambiguity, particularly in defining authorship and originality. This study underscores the necessity of human involvement whether in creativity, taste, or authorship to qualify a work for copyright protection. It posits that automatic protection for AI-generated works is insufficient, as copyright protection should fundamentally be predicated on evidence of a "human touch." Highlighting the imperative to revise the current regulations to accommodate AI- generated artworks. Law No. 28 of 2014 does not explicitly address the utilization of AI in creation, leaving gaps in the definition of originality and authorship, while the TRIPS Agreement provides flexibility for member states to adapt their laws, it does not offer specific guidelines for AI-related issues. These deficiencies underscore the urgency for Indonesia to reform its copyright framework to balance compliance with international standards and to address the unique challenges posed by emerging AI technologies. This study proposes that copyright protection should be most robust when there is substantial evidence of human creative input, such as meaningful customization of AI outputs, deliberate choices in prompt engineering, or post-generation modifications. Works created entirely by AI without human involvement may necessitate alternative forms of protection outside traditional copyright frameworks. This study advocates legal adaptation to effectively protect AI-generated artworks while acknowledging human contributions in their creation. This includes enhancing the protection of moral and economic rights, developing a clear ethical framework to define authorship in the AI context, and ensuring that the copyright system encourages innovation without undermining the value of human creativity. Keywords: AI artwork, copyright protection, TRIPS Agreement, legal adaptation Reference: 70(1982-2024) v PREFACE First and foremost, I would like to express my deepest gratitude to God Almighty for His endless blessings, guidance, and strength throughout the process of writing this thesis. Without His divine support, this work would not have been possible. I am truly grateful for the grace He has granted me, allowing me to overcome the challenges and obstacles along the way. I would also like to extend my heartfelt thanks to my parents, whose unwavering support and love have been a constant source of motivation throughout my academic journey. Their sacrifices, both material and emotional, have played a pivotal role in my success. I am forever grateful for their encouragement, patience, and belief in my abilities, which have inspired me to keep moving forward and never give up. A special thank you goes to my thesis advisor, Professor Fajar Sugianto, for his invaluable guidance, mentorship, and constructive feedback throughout the writing process. His expertise, patience, and insightful comments have been instrumental in shaping the direction of this thesis and improving its quality. I am deeply appreciative of his commitment to my academic development and for providing me with the necessary tools and knowledge to complete this work. I would also like to express my gratitude to all of my professors who have enriched my learning experience throughout my studies. Their dedication to teaching and sharing their expertise has significantly broadened my knowledge and perspective. The lessons I have learned from them will continue to guide me in my professional life. To my friends, thank you for your continuous support, understanding, and encouragement throughout this academic journey. Your companionship has made the challenges of thesis writing more manageable, and I am truly grateful for your presence in my life. You have been a source of inspiration and a reminder that perseverance and collaboration make even the most difficult tasks achievable. I would also like to acknowledge my seniors at Simbolon & Partner, especially Kak Alifia Michelle and Kak Tania for their invaluable mentorship during the preparation of my thesis, particularly in the process of compiling the bibliography and providing guidance on various research-related aspects. Their experience and advice have been indispensable in helping me navigate the technicalities of academic writing, and I am incredibly grateful for their support and direction. Finally, I would like to express my appreciation to everyone who has contributed, directly or indirectly, to the completion of this thesis. Whether through advice, encouragement, or simply being a part of my journey, your support has made a significant difference, and I am thankful for each of you. I hope that this thesis can contribute to the body of knowledge in its field and serve as a foundation for my future academic and professional endeavors. I acknowledge that no work is ever truly perfect, and I welcome any constructive criticism or suggestions that may help me improve in the future. Once again, thank you to vi everyone who has supported me along the way. May God bless us all with continued success and prosperity. vii TABLE OF CONTENT PERNYATAAN KEASLIAN KARYA TUGAS AKHIR.............................................................. II PERSETUJUAN DOSEN PEMBIMBING TUGAS AKHIR........................................................ II PERSETUJUAN TIM PENGUJI TUGAS AKHIR.....................................................................IV ABSTRACT............................................................................................................................... V PREFACE.................................................................................................................................VI TABLE OF CONTENT.......................................................................................................... VIII DAFTAR TABEL....................................................................................................................... X DAFTAR GAMBAR.............................................................................................................. VIII CHAPTER I INTRODUCTION.................................................................................................. 1 1.1 BACKGROUND....................................................................................................1 1.2 FORMULATIONS OF ISSUES................................................................................ 12 1.3 RESEARCH PURPOSES..................................................................................... 12 1.4 RESEARCH BENEFITS....................................................................................... 13 1.4.1 THEORETICAL BENEFITS................................................................................ 13 1.4.2 PRACTICAL BENEFITS................................................................................... 14 1.5 FRAMEWORK OF W RITING................................................................................. 15 CHAPTER II LITERATURE REVIEW..................................................................................... 18 THEORETICAL FRAMEWORK............................................................................... 18 2.1.1 THEORY OF INTELLECTUAL PROPERTY RIGHTS................................................ 18 2.1.2 THEORY OF LEGAL ENFORCEMENT................................................................. 25 2.1.3 PRIVATE RIGHT OF AI GENERATED ARTWORK.................................................. 29 CONCEPTUAL FRAMEWORK............................................................................... 32 2.2.1 COPYRIGHT................................................................................................. 32 2.2.2 CONCEPT OF AI AND AI GENERATED W ORK.................................................... 37 2.2.3 PARTICULARITY............................................................................................ 39 2.2.4 PRIVATIZATION OF PUBLIC DOMAIN................................................................. 41 2.2.5 AUTOMATIC PROTECTION.............................................................................. 43 CHAPTER III RESEARCH METHODOLOGY........................................................................ 47 3.1 RESEARCH METHOD......................................................................................... 47 3.2 TYPE OF DATA................................................................................................. 48 3.3 DATA COLLECTING METHOD.............................................................................. 50 3.4 RESEARCH APPROACH..................................................................................... 50 3.5 DATA ANALYSIS TECHNIQUE.............................................................................. 52 CHAPTER IV DISCUSSION AND ANALYSIS........................................................................ 55 4.1 COMPARATIVE RESEARCH RESULTS OF COPYRIGHT ENFORCEMENT OF ARTWORKS PRODUCED BY AI BETWEEN LAW NO. 28 OF 2014 AND THE TRIPS AGREEMENT............... 55 viii 4.1.1 AUTHORSHIP IN ARTIFICIAL INTELLIGENCE-GENERATED WORKS: EXPLORING ORIGINALITY IN TEXT PROMPTS AND ARTIFICIAL INTELLIGENCE OUTPUTS THROUGH PHILOSOPHICAL FOUNDATIONS OF COPYRIGHT AND COLLAGE PROTECTION......................... 55 4.1.2 COPYRIGHT PROTECTION OF THE AI-GENERATED WORKS: W HO OWNS AI- GENERATED WORKS? CAN AI BE AN AUTHOR? THE EU AND THE UK APPROACH.................. 56 4.1.3 REKONSEPTUALISASI PERLINDUNGAN HUKUM ATAS HAK CIPTA TERHADAP ARTIFICIAL INTELLIGENCE DI INDONESIA......................................................................... 57 4.1.4 URGENSI PERLINDUNGAN HUKUM TERHADAP HAK CIPTA KARYA DIGITAL............ 58 4.2 REVIEW OF COPYRIGHT PROTECTION FOR CREATORS OF AI-GENERATED ARTWORKS UNDER INDONESIAN COPYRIGHT LAW AND THE TRIPS AGREEMENT................................. 59 4.2.1 ANALYSIS OF THE LEGAL FRAMEWORK OF LAW NO. 28 OF 2014 ON COPYRIGHT AND TRIPS AGREEMENT.............................................................................................. 59 4.2.2 RATIO LEGIS ON THE ECONOMIC AND NON-ECONOMIC..................................... 63 4.2.3 COMPARISON OF PROTECTION APPROACHES BETWEEN INDONESIAN COPYRIGHT LAW AND TRIPS.......................................................................................................... 68 4.2.4 NEED FOR LEGAL ADAPTATION TO ACCOMMODATE AI ARTWORKS...................... 76 4.3.1 COPYRIGHT ENFORCEMENT MECHANISM IN LAW NO. 28 OF 2014..................... 88 4.3.2 ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN THE TRIPS AGREEMENT 91 4.3.3 CURRENT PRACTICES OF COPYRIGHT ENFORCEMENT FOR AI W ORKS............... 93 4.3.4 CHALLENGES IN ENFORCING COPYRIGHT OF AI W ORKS................................... 95 CHAPTER V CONCLUSION AND SUGGESTION................................................................. 98 5.1 CONCLUSION................................................................................................... 98 5.1.1 REVIEWING THE COPYRIGHT PROTECTION FOR AI GENERATED ART......................... 98 5.1.2 IMPLEMENTATION OF COPYRIGHT ENFORCEMENT OF THE PROTECTION OF AI GENERATED ART....................................................................................................... 100 5.2 SUGGESTION................................................................................................. 102 REFERENCE.......................................................................................................................... 105 ix DAFTAR TABEL TABLE 4.1 COMPARISONS OF LAW 28 OF 2014 AND TRIPS AGREEMENT...................... 74 x DAFTAR GAMBAR IMAGE 4.1 ARTWORK BY IMAGINE ART VERSION 1........................................................ 80 IMAGE 4.2 ARTWORK BY IMAGINE ART VERSION 2........................................................ 80 IMAGE 4.3 ARTWORK BY DREAM.AI VERSION 1.............................................................. 81 IMAGE 4.4 ARTWORK BY DREAM.AI VERSION 2.............................................................. 81 IMAGE 4.5 ARTWORK BY SIMPLIFIED.COM VERSION 1.................................................. 82 IMAGE 4.6 ARTWORK BY SIMPLIFIED.COM VERSION 2.................................................. 82 viii CHAPTER I INTRODUCTION 1.1 Background Artificial Intelligence (AI) is a multifaceted concept that encompasses a variety of definitions and interpretations across different fields. At its core, AI refers to computing systems designed to simulate human cognitive functions such as learning, reasoning, and problem solving. These simulations can take many forms, from narrow AI, which is specialized for specific tasks, to artificial general intelligence (AGI), which aims to replicate human-like intelligence across a wide range of activities. 1 The definitions of AI often highlight its ability to perform tasks that traditionally require human intelligence. For instance, Veselovsky et al. describe AI as a set of technological solutions that enable machines to carry out creative operations typically associated with human cognition, including self-learning and autonomous problem- solving. Similarly, Lyons emphasizes that AI involves computational approaches aimed at mimicking human capacities, which often leads to 1 Veselovsky M Y and V A Trifonov, “Intellectual Governance in the Digital Economy of Russia,” 2021. the perception of human-like features in these systems,2 This perspective aligns with Nilsson's assertion that AI is concerned with intelligent behavior in artifacts, emphasizing the importance of perception, reasoning, and learning in complex environments.3 The impact of AI on art creation and human creativity is becoming increasingly significant with advancements in technology. In the realm of art, AI is increasingly being utilized as both a tool and a collaborator. Artists are employing AI algorithms to generate artwork, create music, and even write poetry. This integration of AI into artistic practices raises intriguing questions about creativity and authorship. For instance, AI systems can analyze vast datasets of existing artworks to produce new pieces that mimic certain styles or themes. Some notable projects include the use of generative adversarial networks (GANs) to create visual art that challenges traditional notions of originality. This has radically changed our perception of art and the creative process. While AI offers new avenues for exploring ideas, concerns about originality and the human role in art persist. One positive aspect of AI in art creation is its ability to accelerate the creative process. By employing algorithms to process vast datasets, AI 2 Joseph B. Lyons et al., “Responsible (Use of) AI,” Frontiers in Neuroergonomics 4 (2023), https://doi.org/10.3389/fnrgo.2023.1201777. 3 Na Liu, Philip Shapira, and Xiaoxu Yue, “Tracking Developments in Artificial Intelligence Research: Constructing and Applying a New Search Strategy,” Scientometrics 126, no. 4 (April 1, 2021): 3153–92, https://doi.org/10.1007/s11192-021-03868-4. 2 can generate innovative patterns and styles. For instance, AI can analyse thousands of classical artworks and produce paintings with unique styles while being inspired by existing ones. This enables artists to experiment with latest ideas without being constrained by traditional techniques or lengthy experimentation. Art is a broad and complex concept, which has been defined and interpreted differently by diverse cultures and individuals throughout history. Simply put, art can be understood as a creative human expression that involves imagination, skill, and feeling to produce works of aesthetic value. Art comes from the Sanskrit word "Sani," which means "worship," "offering," and "service." According to the Indonesian Dictionary, art is the skill of creating works of high quality, judged by their refinement and beauty. The dictionary also defines art as creations made with extraordinary skill, such as dance, painting, and carving. Artistic works are the result of artistic creation. In the Indonesian Dictionary, the definition of art has three meanings: First, art is described as refined, small, delicate, thin, soft, pleasing to the ear, tiny, and beautiful. Second, it refers to the skill of creating high-quality works (in terms of beauty and refinement). Third, it signifies the intellectual ability to create something of high value. The dictionary translates art as the skill of creating works of high quality, evaluated based on their refinement and beauty. The dictionary also states that art refers to creations made with exceptional 3 skill, such as dance, painting, and carving. Artistic works are the result of artistic creation.4 KBBI further explains that art has three main meanings, namely, art is described as something that is smooth, small, soft, thin, soft, melodious, tiny, and beautiful. Art refers to the skill of creating high-quality works (in terms of beauty and subtlety). Third, art signifies the intellectual ability to create something of high value. Eric Aryanto expands this definition by stating that art is an inner activity or spiritual activity that is reflected in the form of a work that can arouse the feelings of others who listen to it or see it. This emphasizes the emotional and spiritual aspects of art, as well as its ability to influence others. Thus, art and works of art are manifestations of human creativity, which not only include technical skills, but also involve intellectual, emotional, and spiritual aspects. Art has the unique ability to convey human ideas, feelings, and experiences in a form that can be appreciated and felt by others, making it an important part of human culture and experience. The question of whether AI developers can be considered authors when humans use AI to create creative works takes us to a new dimension in the discussion of art and creativity. This is a complex issue that is still being debated in the legal and artistic communities. On the one hand, AI is a tool created and programmed by humans and can therefore be 4 Hartono, et al. Ilmu Budaya Dasar. Jakarta: PT Bina Ilmu, 2004. p. 32. 4 considered an extension of human creativity. However, on the other hand, modern AI has the ability to produce output that is not always fully predictable or controlled by its programmers. In the context of copyright law, the traditional definition of “author” usually refers to a human individual who creates an original work. However, with the advancement of AI technology, the boundaries of this definition are beginning to be questioned. Some argue that AI developers can be considered indirect authors, because they create the system that enables the creation of creative works. However, others argue that AI output should be considered a public work, with no copyright holder. If we consider AI developers to be authors, this could open the door for them to obtain copyright protection for the works produced by the AI they develop. However, this raises complex questions about how to define originality and creativity in the context of AI. In addition, there are concerns that granting copyright to AI developers could limit innovation and public access to AI-generated works. In the context of IPR (Intellectual Property Rights), an author is defined as the creator of an original work who has exclusive rights to his/her work. The relationship between authors and IPR is remarkably close, where IPR aims to protect the rights of authors to their works, including economic rights and moral rights. Economic rights allow authors to 5 benefit financially from their work, while moral rights protect the integrity of the work and the author’s reputation. However, when we consider AI in this equation, the situation becomes more complex. Currently, most jurisdictions have not explicitly addressed the legal status of AI-generated works in the context of IPR. Some countries, such as the UK, have begun to adapt their laws to accommodate computer-generated works, but there is still much debate about how to deal with works generated by more sophisticated and autonomous AI. In conclusion, the question of the status of AI developers as authors and their copyright to AI-generated works remains a legal and ethical grey area. As technology continues to advance, we may need to re-frame traditional concepts of authorship, creativity and intellectual property rights. This requires ongoing dialogue between policymakers, technology developers, artists, and the public to create a framework that is fair and beneficial to all parties in this AI era. Given the complexities and challenges posed by AI in the context of copyright, it is important to consider the significance of copyright protection for AI developers. Copyright protection plays a crucial role in encouraging innovation and creativity in the field of AI development, while providing recognition and potential financial compensation for the efforts and investments made. 6 For AI developers, copyright protection can serve as an important incentive to continue developing and refining their technology. With the assurance that their work – whether source code, algorithms, or creative outputs generated by AI – will be legally protected, developers can feel more secure in exploring innovative ideas and investing in long-term research. This not only benefits developers individually but can also drive the advancement of AI technology, which in turn can benefit society at large. In addition, copyright protection can also help create a fairer and more competitive environment in the AI industry. By protecting developers’ intellectual work, copyright can prevent unauthorized use or imitation of AI technology by others. This not only protects the economic interests of developers, but also encourages healthy competition where companies and individuals race to create better and more original AI solutions, rather than simply copying existing work. Overall, this can lead to a more diverse, innovative, and beneficial AI ecosystem for end users. Given the importance of copyright protection for AI developers and its impact on innovation and healthy competition, it is important to understand how copyright law is applied in different countries. In Indonesia, copyright protection is regulated by Law Number 28 of 2014 concerning Copyright, which is an update of the previous law to accommodate technological developments and new challenges in the digital era. The Indonesian Copyright Law provides a comprehensive 7 legal framework for protecting creative and intellectual works. Its scope is broad, covering various forms of works such as books, computer programs, songs, films, fine arts, and more. The main purpose of this law is to protect the economic and moral rights of creators, as well as to encourage creativity and innovation in various fields. This law also aims to create a balance between the interests of creators and the interests of the wider community in accessing and utilizing creative works. In the context of technological developments, Law Number 28 of 2014 has tried to accommodate several digital aspects, such as copyright protection on the internet and regulations on technological control facilities. However, as in many other countries, this law does not specifically regulate works produced by AI. This raises interesting questions about how copyright law in Indonesia will evolve to meet the challenges of the AI era, especially in determining the legal status of works produced by AI and the rights of AI developers. While Indonesia has its national copyright law, it's important to note that copyright protection has long been a concern at the international level as well. Various international agreements have been established to ensure copyright protection across borders. One such early agreement that highlights the global nature of copyright protection is the Buenos Aires Convention, and The Agreement on Trade-Related Aspects of Intellectual Property Rights is an international legal agreement between all the member nations of the World Trade Organization. 8 The Buenos Aires Convention primary aim was to establish a unified copyright protection system among signatory nations, safeguarding literary and artistic works internationally. The convention provided extensive protection for various creative works, including books, writings, musical compositions, visual arts, scientific materials, and architectural works. It stipulated that copyright obtained in one member state would be automatically recognized in all others without additional formalities, provided the work included a clear statement of reserved property rights. Authors were granted exclusive rights to control their works, including publishing, translating, reproducing, and assigning rights. Additionally, the convention introduced the presumption of authorship, assuming the named or pseudonymous individual on a work as the author unless proven otherwise, thereby facilitating legal actions against copyright infringement. According to the Berne Convention for the Protection of Literary and Artistic Works, copyright is defined as the exclusive right of authors to control the use of their literary and artistic works. This includes the right to reproduce, distribute, and adapt their works, as well as the right to authorize translations. The Convention emphasizes that copyright protection is automatic upon the creation of a work, without the need for formal registration, and it applies to a wide range of works, including books, music, films, and visual arts. The duration of protection typically lasts for the life of the author plus an additional number of years, ensuring 9 that authors and their heirs benefit from the economic rights associated with their creations. The Berne Convention establishes a framework for international cooperation in copyright protection, obligating member countries to recognize and enforce these rights across borders. Building upon these earlier efforts, the international community recognized the need for a more comprehensive and globally applicable agreement on intellectual property rights. This led to the development of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which came into effect in 1995 as part of the World Trade Organization agreements. The TRIPS Agreement represents a significant evolution in international copyright protection, expanding upon and modernizing the principles established in earlier conventions like the Buenos Aires Convention. Based on the TRIPS Agreement, copyright is a form of intellectual property protection granted to authors of original literary and artistic works. The Agreement extends the provisions of the Berne Convention, requiring member countries to comply with its substantive articles. Copyright protection under TRIPS covers expressions, not ideas, procedures, methods of operation or mathematical concepts. It includes protection for computer programs as literary works and compilations of data. The TRIPS Agreement stipulates that copyright protection should last for at least 50 years from the end of the calendar year of authorized publication, or 50 years from the end of the calendar year of creation for 10 unpublished works. It also covers related rights, such as those of performers, producers of sound recordings, and broadcasting organizations. The urgency of copyright protection for AI-generated artwork stems from the rapid advancement of AI technology and its increasing ability to produce creative works. This raises complex questions about authorship, originality, and the nature of creativity itself. The question of who should hold the copyright for AI-generated artwork - the developer or the user - is not explicitly addressed in the TRIPS Agreement, as AI authorship was not a consideration when it was drafted. However, we can analyze this issue based on copyright principles. The AI developer could argue that they created the system that enables the artwork's production, and thus should hold the copyright. Their creative input lies in designing the AI algorithm and training it on specific datasets. Conversely, the user who prompts the AI to create specific artwork might claim copyright based on their role in initiating and directing the creative process. Some argue that the AI itself should be recognized as the author, though this is problematic under current legal frameworks that typically require human authorship. Another perspective is that AI-generated works might not qualify for copyright protection at all, as they lack human authorship. Currently, there's no international consensus on this issue. Different jurisdictions are grappling with these questions, and policies vary. For instance, the U.S. Copyright Office has stated that it will not register 11 works produced by a machine or mere mechanical process that operates randomly or automatically without creative input or intervention from a human author. Given the complexity of this issue, there's an urgent need for international discussion and potentially new guidelines or amendments to existing agreements like TRIPS to address AI-generated works. Any solution will need to balance encouraging innovation in AI technology with maintaining the integrity of copyright law and its fundamental purpose of promoting human creativity. 1.2 Formulations of Issues Regarding the thesis subject, the author will address the ensuing set of issues: 1. How should copyright protection for creator of AI generated artwork be reviewed in terms of Copyright Law in Indonesia and the TRIPS Agreement? 2. How is the implementation of copyright enforcement of the protection of AI generated works currently based on Copyright Law in Indonesia and the TRIPS Agreement? 1.3 Research Purposes This research aims to: 1. The first objective of this study is to conduct a comparative analysis and legal discovery related to copyright protection for creator who create artworks generated by AI, by comparing Law No. 28 of 2014 12 concerning Copyright in Indonesia and the TRIPS Agreement. This study aims to identify and solve legal issues that arise due to the development of AI technology in the context of copyright. Through an in-depth analysis of the two legal frameworks, this study will examine how the definitions of authorship, ownership, and copyright protection criteria can be applied to AI artworks. The results of this analysis are expected to provide innovative and relevant legal interpretations to face new challenges in copyright protection in the digital era. 2. The second objective is to evaluate the implementation and effectiveness of copyright enforcement for the protection of artworks generated by AI based on the Copyright Law in Indonesia and the TRIPS Agreement. This study will examine current practices in law enforcement, identify obstacles faced, and assess the suitability of existing protection mechanisms to the unique characteristics of AI artworks. Through this evaluation, the study aims to find legal loopholes and practical challenges in enforcing copyright on AI works. 1.4 Research Benefits 1.4.1 Theoretical Benefits This research aims to evaluate the effectiveness of current copyright enforcement models in protecting AI-generated content and analyze who should hold copyright in the context of commercialization, focusing particularly on challenges faced by AI developers. By 13 examining the obstacles that AI-generated works present to traditional copyright enforcement mechanisms and ownership concepts, the study addresses key questions regarding the application of intellectual property rights in the AI era, with specific emphasis on Indonesian law and international conventions. The study develops a conceptual framework for assessing the effectiveness of copyright enforcement in the context of AI-generated content, considering factors such as ease of reproduction, the global nature of digital distribution, and challenges in proving authorship. This theoretical exploration provides valuable insights into potential reforms or adaptations of copyright law to better suit the realities of AI-driven creative industries in Indonesia and beyond. Overall, this research contributes theoretical insights that inform policy decisions, guide legal practices, and promote ethical considerations in copyright enforcement and ownership attribution for AI-generated content. 1.4.2 Practical Benefits This research provides a foundational basis for policymakers to formulate AI-responsive regulations, ensuring protection for AI- generated artworks while fostering innovation. It offers guidance for creative industries and AI developers in managing intellectual property rights associated with AI creations, promoting fair practices and maximizing economic benefits. Additionally, the study serves as 14 a valuable resource for courts and legal practitioners, providing insights for handling copyright cases related to AI artworks. By clarifying legal uncertainties and proposing adaptive measures, the research supports the development of legal frameworks that balance the interests of creators, users, and stakeholders in the AI-driven creative economy. The theoretical and practical insights generated contribute to informed decision-making, ethical considerations, and sustainable growth in the dynamic landscape of AI-driven creativity and intellectual property law. 1.5 Framework of Writing CHAPTER I: INTRODUCTION This chapter serves as a fundamental introduction to the overarching thesis, laying the essential groundwork for an in-depth examination of the topic of commercialising AI artwork which is the central focus of this research. This chapter is structured into five distinct sections, each offering unique insights and contributing to a multifaceted understanding of the subject matter. CHAPTER II: LITERATURE REVIEW This chapter is structured systematically into sub-chapters, each providing unique perspectives on copyright protection for commercialised AI-generated artworks. Firstly, it explores perspectives on copyright protection by examining existing frameworks and 15 conventions that govern intellectual property rights in the context of AI- generated art. The chapter then reviews literature offering comparative analyses of legal frameworks with a specific focus on effective measures for copyright protection in the digital age. Moving forward, the research delves into the Indonesian legal frameworks dedicated to copyright protection, emphasising the specific provisions and regulations aimed at preserving intellectual property rights in AI-generated artworks. Additionally, it addresses challenges unique to Indonesia in protecting copyrights, drawing insights from literature that discusses societal attitudes, resource constraints, and institutional capacities. The chapter aims to identify gaps in the current legal frameworks and institutional responses, proposing recommendations for enhancing copyright protection practices. CHAPTER III: RESEARCH METHODS This chapter provides a comprehensive overview of the research approach, data types, data analysis techniques, and the overall research methodology. It outlines the specific research methods, data sources, data analysis techniques, and research approaches employed in addressing the issues presented in this thesis. CHAPTER IV: DISCUSSION AND ANALYSIS 16 The fourth chapter discusses research problems and their solutions. It is further divided into two sub-chapters, each of which corresponds to the research questions outlined in Chapter Two. CHAPTER V: CLOSING In this chapter, the author will provide a thorough recap and address the issues explored in the preceding fourth chapter concerning copyright protection. In addition to presenting conclusions, the author will provide valuable recommendations and suggestions for addressing these concerns. This initiative aims to enhance legal clarity and protect the rights and well-being of all involved parties. 17 CHAPTER II LITERATURE REVIEW Theoretical Framework 2.1.1 Theory of Intellectual Property Rights Intellectual Property Rights (IPR) are exclusive rights granted by law to creators or inventors for their intellectual works and creativity that are unique and innovative. These works can cover various fields, including science, art, literature, and technological discoveries. IPR can be understood as rights arising from mental activities that produce products or processes that are useful to society. In addition, IPR also provides rights holders with the opportunity to gain economic benefits from the results of their intellectual creativity. 5 It is originated from creative activities resulting from human intellectual abilities, expressed to the public in various forms that are beneficial and useful in supporting human life, while also having economic value. As a property right, IPR arises from human creations or works, which are the result of human intellect. 5 Iswi Hariyani, Prosedur Mengurus HAKI Yang Benar, 1st ed. (Yogyakarta: Pustaka Yustisia, 2010). 18 Intellectual Property Rights (IPR) are legal protections granted to creators and 6inventors to safeguard their original works for a specified period. These rights are fundamental in fostering the creation of diverse intellectual assets and encouraging innovation across various fields. The concept of intellectual property is rooted in the understanding that creations of the mind deserve legal protection like tangible property. This protection not only incentivizes further innovation by ensuring financial returns for creators but also facilitates a conducive environment for 7 Intellectual Property Rights (IPR) are based on several philosophical theories that explain the importance of protecting intellectual works. These theories provide different but complementary perspectives in understanding the basics of IPR. The Natural Rights Theory, rooted in the thinking of John Locke, asserts that every individual has a natural right to the fruits of their labour and creativity. Natural rights, as conceptualized by John Locke, include the fundamental right to property, which forms the basis for understanding intellectual property rights. Locke argues that individuals have the right to the fruits of their labour, extending to the creations of the mind. This 6 Sulasi Rongiyati, “PELINDUNGAN HUKUM HAK KEKAYAAN INTELEKTUAL PADA PRODUK EKONOMI KREATIF PROTECTION OF THE INTELLECTUAL PROPERTY RIGHTS ON CREATIVE ECONOMIC PRODUCTS,” June 2017, https://doi.org/10.22212/jnh.v9i1.1001. 7 Firoj A Tamboli et al., “Intellectual Property Rights (IPR): An Overview,” International Journal of Pharmaceutical Chemistry and Analysis 10, no. 3 (September 28, 2023): 156–63, https://doi.org/10.18231/j.ijpca.2023.028. 19 concept suggests that creators have a natural right to own and control their intellectual creations, just as they would have physical property. John Locke's theory of natural rights emphasizes the crucial role of government in safeguarding individuals' fundamental rights, particularly property rights. In Locke's view, the primary purpose of the government is to protect natural rights, including property rights. When applied to intellectual property, this implies that governments should establish systems to recognize and protect the rights of creators over their intangible assets. This philosophy underpins modern intellectual property law, which aims to balance creators’ rights with the broader societal benefits of innovation and creativity. 8 This perspective suggests that governments are responsible for establishing and maintaining systems that recognize and protect creators’ rights over their intangible assets, including developing comprehensive legal structures to define, register, and enforce intellectual property rights. The Lockean approach to intellectual property rights through government protection necessitates a delicate balance. While emphasizing the importance of safeguarding creators' rights, it also recognizes the need for governments to implement limitations and exceptions that serve the public’s interest. This balancing act is reflected in modern intellectual property legislation, where governments strive to 8 Wenliang Zhang and Dong Long, “Analysis on Locke’s Thought of Rule of Law*,” 2018. 20 incentivize innovation while ensuring that intellectual property protection does not unduly restrict public access to knowledge and cultural work.9 The Lockean perspective on intellectual property rights emphasizes the importance of rewarding and incentivizing creative efforts. By granting creators exclusive rights to their intellectual works for a limited time, society encourages innovation and artistic expression. However, this view also recognizes the need for limitations and exceptions to these rights to ensure public access to knowledge and cultural works, reflecting a balance between individual rights and societal progress. This balance is crucial for shaping contemporary debates on the scope and duration of intellectual property protection. The second theory, utilitarian theory, as developed by philosophers like Jeremy Bentham and John Stuart Mill, argues that actions should be judged based on their consequences and ability to maximize overall happiness or well-being for the greatest number of people.10 When applied to intellectual property rights, utilitarianism focuses on how IPR can benefit society rather than just individual creators. 11 9 Prasetyo Hadi and Purwandoko ; M Najib Imanullah, “Application of The Natural Law Theory,” vol. 6, n.d. 10 Reena Jaiswal et al., “Role Of Intellectual Property Theories in Addressing Anomalies Created By The Intersection of Artificial Intelligence and Intellectual Property Rights: An Analysis,” International Journal of Membrane Science and Technology, vol. 10, 2023. 11 Hafiz Zafar Daher, “International Journal for Empirical Education and Research Utilitarianism Theory According to Bentham and Stuart Mill,” n.d. 21 The utilitarian justification for IPR is that granting limited monopoly rights to inventors and creators provides an incentive for innovation and public disclosure of new ideas. Without such protections, there would be less motivation to invest time and resources into developing new technologies or creative works, as others could simply copy them without compensation. By rewarding innovation through temporary exclusive rights, IPR aims to stimulate progress in science, technology, and the arts for the overall benefit of society. 12 For patents specifically, utilitarianism argues that the temporary monopoly granted to inventors is justified because it encourages the sharing of new technological knowledge, rather than keeping inventions as trade secrets. Similarly for copyright, giving authors and artists exclusive rights for a limited time provides an incentive to create and disseminate new works that the public can eventually freely access. Overall, the utilitarian view holds that these various forms of IPR enhance social welfare by fostering innovation, creativity, and market efficiency. However, critics argue that overly strong IPR can hinder progress by restricting the free flow of ideas and creating barriers to "downstream" innovations that build on existing work. There are also concerns about whether IPR truly maximizes overall social benefit or primarily serves 12 Daher. 22 the interests of large. As such, utilitarian analysis of IPR often focuses on finding the right balance between providing sufficient incentives for creators while ensuring broad access to knowledge and cultural work for the public good. Personhood theory in the context of intellectual property rights (IPR) posits that creative works are inextricably linked to their creators' identities and personalities and should be protected as such. This theory, drawing from Hegelian insights and often attributed to the philosophical ideas of Kant and Hegel, promotes strong property rights for objects that individuals have interwoven with their identity, almost metaphysically imbuing them with a part of themselves. 13 14 The personhood framework focuses on the relationship between objects and identity interests, starting with the premise that human individuality is inseparable from object relations. In the context of copyright, this theory suggests that creative works of artists are an indissoluble and inseparable part of their soul, spirit, and vision. 15 This perspective has found its greatest expression in the laws of several European countries, where "moral rights" protect, among other things, the rights of attribution 13 Christopher S Yoo, “RETHINKING COPYRIGHT AND PERSONHOOD,” UNIVERSITY OF ILLINOIS LAW REVIEW, vol. 2019, 1041 14 John Tehranian, “COLORADO LAW REVIEW PARCHMENT, PIXELS, & PERSONHOOD: USER RIGHTS AND THE IP (IDENTITY POLITICS) OF IP (INTELLECTUAL PROPERTY),” vol. 82, 2011, 10 15 Tehranian, 10-11 23 and integrity. Under this theory, artists possess an inalienable right to be associated (or not associated) with their artwork and to preserve its integrity. 1617 However, a closer examination of Kant's and Hegel's writings reveals a more nuanced view. Kant saw authors' rights as personality rights rather than property rights, focusing on the speech embodied in literary works. Hegel, while emphasizing property's role in developing personality, valued it more for how it structured relationships between people rather than for any special bond between creator and creation. 18 A broader conception of personhood theory in IPR considers not just the finished work, but also the process of creation itself as crucial to developing personality. This view, supported by psychologists like Maslow and Rogers, suggests that the act of creating is intrinsically valuable for self- actualization, regardless of the final product.19 The personhood theory has played a significant role in shaping copyright discourse, particularly in debates over copyright term extensions. Advocates argue that copyrighted works constitute an extension of an author's own identity, and therefore control of the work is tantamount to 16 Tehranian, 11 17 Yoo, 1041 18 Yoo, 1048&1052 19 Yoo, 1049-1051 24 control over one's own person.20 However, it's important to note that while personhood theory has been influential in expanding authorial rights, it has typically focused on the identity interests that authors enjoy in their creative output. Recent analyses explore the personhood interests that consumers possess in copyrighted works, suggesting a need for a more balanced consideration of user rights in copyright law. 21 The implications of this broader understanding of personhood theory for IPR are significant. It suggests a need to balance the rights of initial creators with those of follow-on authors, who may also be engaging in self-actualizing creative processes. It also provides a basis for considering educational and non-commercial uses of creative works more favourably, as these uses may contribute to individuals' personal development through engagement with creative processes (Yoo, 2019, p. 1073, 1075).22 This perspective shifts the focus from protecting the work as a static artifact to valuing the creative process as a means of personal development for both creators and users of intellectual property. 2.1.2 Theory of Legal Enforcement Rudolph Von Ihering's opinion quoted by Soerjono Soekanto said that law is a means for society to achieve its goals. Von Ihering views law as a tool 20 Tehranian, “COLORADO LAW REVIEW PARCHMENT, PIXELS, & PERSONHOOD: USER RIGHTS AND THE IP (IDENTITY POLITICS) OF IP (INTELLECTUAL PROPERTY).” 14-15 21 Tehranian, 3&21 22 Yoo, 1073&1075 25 to cotntrol individuals so that their goals are consistent with the goals of the society in which they are citizens. According to him, law is also a tool that can be used to realize social change. 23 Hestu Cipto Handoyo found that "law" viewed from a philosophical perspective, studies part of human behaviour, namely behavior (or human actions) in life between individuals, the consequences of which are regulated by law with a specific purpose. emphasis on harmony. between order and freedom/peace and in community life is also included in the aspect of fulfilling peace.24 Law as a form of social engineering or planning refers to its role as a tool employed by change agents or societal pioneers, who are trusted by the public as leaders, to shape society according to their vision or plans. Law serves as a system of behavioural regulation, with coercive authority, to ensure that individuals live in alignment with established legal values. For the law to function effectively in transforming behaviour and guiding society, it must be institutionalized in a manner that ensures its proper application. Law enforcement is a vital function aimed at aligning social behaviour with established values and norms. It involves translating these values Soerjono Soekanto, Pokok-Pokok Sosiologi Hukum (Jakarta.: Raja Grafindo Persada., 2006). 23 B. Hestu Cipto Handoyo, Hukum Tata Negara Indonesia: Menuju Konsolidasi Sistem 24 Demokrasi (Yogyakarta: Universitas Atma Jaya Yogyakarta, 2009). 26 into concrete actions that foster a harmonious and peaceful society. Effective law enforcement necessitates a delicate balance between social morality, institutional morality, and individual morality. This balance is essential for ensuring that laws are both just and relevant to the needs of the community. 25 A fundamental component of law enforcement is the code of conduct. This code outlines the standards of professional behaviour expected of law enforcement officials. Adherence to these standards is crucial for maintaining public trust and ensuring that the law is enforced fairly and impartially. Deviation from these standards can result in harm to others.26 In addition to the institutionalization of law within society, law enforcement is essential as part of the broader legal process, which includes lawmaking, enforcement, adjudication, and the administration of justice. Satjipto Rahardjo explains that law enforcement involves the practical application of law in everyday life. Once laws are created, they must be concretely implemented in society, and this implementation constitutes law enforcement. This concept is sometimes referred to as legal application, known in Dutch as rechstoepassing and 25 Soerjono Soekanto, Beberapa Permasalahan Hukum Dalam Kerangka Pembangunan Di Indonesia Suatu Tinjauan Secara Sosiologis (Jakarta: UI Press, 1983). 26 Mardjono Reksodiputro, “‘Reformasi Hukum Di Indonesia,’” BPHN Departemen Kehakiman Dan HAM (Seminar Hukum Nasional Ke VII, 1999). 27 rechtshandhaving, or in American terminology, as law enforcement and application. 27 According to Soerjono Soekanto, law enforcement involves aligning the values embedded in legal norms and clear viewpoints with attitudes and actions, serving as the final stage of value implementation to create harmony in society. The law acts as a safeguard for human interests and should be applied consistently and peacefully. However, when legal violations occur, the law must be enforced to ensure its effective realization.28 In law enforcement, three key elements are emphasized. The first is legal certainty which ensures that the law must be applied without exception or evasion. This reflects the principle that "even if the world collapses, the law must prevail" (fiat justitia et pereat mundus). Legal certainty is essential for maintaining public order. The second element is welfare (zweekmassigkeit), recognizing that the law exists for the benefit of the people. Therefore, the application of the law should bring positive outcomes and avoid causing public unrest. Lastly, the third element is justice (gerechtigheit), which highlights that the law must be applied fairly and equally to everyone, as it is designed to be universal in scope. 27 Satjipto Rahardjo, Membedah Hukum Progresif, (Jakarta: Kompas, 2008), h. 175-183 28 Sudikno Mertokusumo, Penemuan Hukum (Sebuah Pengantar), (Yogyakarta: Cahaya Atma Pustaka, 2005), h. 160-161 28 2.1.3 Private Right of AI Generated Artwork According to Lockean natural law theory, when someone invests their labour into creating something new, they establish a property claim over it.29 For AI artwork, the creator invests their intellectual and creative labor by providing prompts, refining outputs, and making artistic choices. This "mixing of labor" with the AI tools creates a natural property right in the resulting artwork, just as picking apples from a tree establishes ownership over those apples. This natural property right in AI artwork includes several key entitlements: the liberty right to use and consume the work, the power to transfer or sell it, and crucially, the claim right to exclude others from 30 using it without permission. These rights arise not from positive law but from natural law principles that recognize creators deserve to control and benefit from their creative labour. The protection of AI artwork as private property is justified by the "no- harm principle." When others copy or use the work without permission, they harm the creator by interfering with their purposeful project and appropriating the benefits of their creative labour. Just as taking 29 John Locke et al., “Two Treatises of Government In the Former, The False Principles and Foundation of Sir Robert Filmer, and His Followers, Are Detected and Overthrown: The Latter, Is an Essay Concerning the Original, Extent, and End, of Civil Government,” n.d. 30 Wendy J Gordon and Wendy J Gordont, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property Articles A Property Right in Self- Expression: Equality and Individualism in the Natural Law of Intellectual Property*,” The Yale Law Journal Company, Inc. Source: The Yale Law Journal, vol. 102, 1993. 29 someone's gathered apples would wrong them, unauthorized copying of AI artwork wrongs its creator by taking the fruits of their creative work. The moral foundation for protecting AI artwork stems from natural law doctrine, which emphasizes honesty and fairness in intellectual property rights. This approach considers unauthorized use of someone's creation without prior approval as both dishonest and unfair.31 The protection is further supported by various theories including reward theory, recovery theory, and incentive theory, which collectively recognize the need to compensate creators for their time, effort, and creativity. 32 Furthermore, the utilitarian perspective suggests that protecting AI artwork serves a broader social purpose by encouraging innovation and creativity. According to Bentham's theory, such protection should provide benefits and happiness for most citizens while balancing individual and societal interests. 33 However, these natural property rights in AI artwork are not absolute; they must be balanced against the public's fundamental entitlements, particularly their right to access and use the cultural common.34 Protection should focus on preventing harm to creators while 31 Hadi and Najib Imanullah, “Application of The Natural Law Theory.” 32 Robert M. Sherwood, Intellectual Property and Economic Development (Routledge, 2019), https://doi.org/10.4324/9780429045530. 33 Hadi and Najib Imanullah, “Application of The Natural Law Theory.” 34 Gordon and Gordont, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property Articles A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property*.” 30 still allowing legitimate public uses that don't unfairly appropriate the creator's labour. This suggests a system of limited but meaningful private rights, potentially enforced through monetary remedies rather than strict exclusion, following the principle of suum cuiqe tribuere (objects obtained by a person are his possessions) while respecting the concepts of state property (res publicae) and public goods (res communes).35 The protection of AI artwork is fundamentally grounded in various philosophical and legal theories that advocate for the recognition of creators' rights based on their labour and creativity. Lockean natural law theory establishes that when individuals invest their intellectual labour into creating something new, they inherently acquire property rights over that creation.36 This aligns with the personality theory, which posits that intellectual property is an extension of an individual's identity and self- expression, thereby justifying the need for protection against unauthorized use. 37 The moral and ethical frameworks provided by these theories emphasize that creators deserve recognition and compensation for their contributions, reinforcing the notion that unauthorized 35 Hadi and Najib Imanullah, “Application of The Natural Law Theory.” 36 Locke et al., “Two Treatises of Government In the Former, The False Principles and Foundation of Sir Robert Filmer, and His Followers, Are Detected and Overthrown: The Latter, Is an Essay Concerning the Original, Extent, and End, of Civil Government.” 37 Justin Hughes, “77 Geo. L.J. 287 * Luce Scholar and Mellon Fellow in the Humanities, 1988. B.A. 1982, Oberlin College,” J.D, 1988. 31 appropriation of their work constitutes a violation of their rights and an act of unfairness. 38 Moreover, the protection of AI artwork is supported by utilitarian and economic theories that highlight the broader societal benefits of safeguarding intellectual property. 39 By ensuring that creators can reap the rewards of their innovations, these protections not only incentivize individual creativity but also contribute to collective progress in culture and technology. The balance between individual rights and public access is crucial, as it seeks to foster an environment where creativity thrives while still allowing for the dissemination of knowledge and cultural resources.40 Thus, the legal frameworks surrounding AI artwork protection must navigate these philosophical underpinnings to create a fair and effective system that promotes both individual rights and societal advancement. Conceptual Framework 2.2.1 Copyright Copyright is a fundamental component of intellectual property law, encompassing a broad spectrum of protected works including science, 38 Hadi and Najib Imanullah, “Application of The Natural Law Theory.” 39 Sherwood, Intellectual Property and Economic Development. 40 Gordon and Gordont, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property Articles A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property*.” 32 art, literature, and computer programs. The Indonesian government, recognizing the critical role of copyright in fostering the national creative economy, has updated its copyright legislation to better protect and promote creative industries. This legal framework aims to optimize the contribution of copyright and related rights to the country's economic growth. In this context, copyright is defined as the exclusive right automatically granted to creators based on the declarative principle. This right comes into effect as soon as a work is manifested in tangible form, subject to limitations specified by law. It is important to note that copyright extends beyond the creator's rights to include related rights, which are exclusive rights granted to performers, phonogram producers, and broadcasting organizations. This comprehensive approach to copyright protection reflects the complex nature of creative works in the modern era and underscores the importance of balancing the interests of creators, industries, and the public in fostering a thriving creative economy. According to copyright law, copyright is defined as the exclusive right granted to creators that arises automatically based on the declarative principle. This right comes into effect once a creation is manifested in tangible form, subject to limitations specified by statutory regulations. The law further defines a creator as an individual or group of individuals who, either independently or collaboratively, produce a creation that is 33 distinctive and personal in nature. This definition highlights the importance of originality and individual expression in copyright law. A creation, in the context of copyright law, is described as any work in the fields of science, art, and literature that results from inspiration, ability, thought, imagination, dexterity, skill, or expertise, expressed in tangible form. This broad definition encompasses a wide range of intellectual and artistic outputs, recognizing the diverse ways in which human creativity can manifest. This legal framework underscores the balance between protecting the rights of creators and fostering an environment conducive to creative expression and innovation. It acknowledges the inherent value of intellectual and artistic contributions while also recognizing the need for certain limitations to ensure public access and fair use. Copyright law in Indonesia, as defined in Law Number 28 of 2014 on Copyright, establishes copyright as "the exclusive right of the creator that arises automatically based on the declarative principle after a creation is manifested in tangible form without prejudice to restrictions in accordance with the provisions of laws and regulations" (Article 1 of the Copyright Law). This legal framework suggests that copyright is a right bestowed upon individuals who create a work, officially recognizing their ownership and granting them the authority to utilise their creation and prevent unauthorised replication by others. 34 Copyright, as explained in Article 6 Paragraph (1) of Law Number 28 of 2014 concerning Copyright, refers to the exclusive rights given to creators for the work they have produced. This right automatically arises when the work is created in concrete form. The declarative principle of copyright means that the exclusive right to the work is declared and takes effect as soon as the work is created in a recognisable form. Copyright law in Indonesia, as stated in Article 1 Paragraph (1) of Law Number 28 of 2014, provides a definition of the rights owned by a creator to his work: "Copyright is the exclusive right of the creator that arises automatically based on the declarative principle after a creation is realised in real form without reducing restrictions in accordance with the provisions of statutory regulations." According to the TRIPS Agreement, copyright is a form of intellectual property protection that safeguards original works of authorship, including literary, artistic, musical works, and other creative expressions. The agreement incorporates by reference most of the substantive provisions of the Berne Convention (1971), establishing minimum standards of copyright protection that all WTO member countries must implement in their national laws, ensuring creators have exclusive rights over their works including the right to reproduce, distribute, perform, display, and create derivative works. The TRIPS Agreement extends copyright protection to include computer programs (protected as literary works) and compilations of data. It 35 requires member countries to protect these works for at least 50 years after the author's death, or 50 years from publication for corporate works. The agreement also provides specific provisions for protecting performers, producers of phonograms (sound recordings), and broadcasting organizations, though these are considered related rights rather than pure copyright. Importantly, while the agreement sets minimum standards for protection, it allows member countries to implement more extensive protection in their national laws as long as such protection does not contravene the provisions of the agreement. According to Law Number 28 of 2014 concerning Copyright, the category of Intellectual Property Rights (IPR) includes several types, namely: Copyright, which protects works in the fields of science, art, and literature; Related Rights, which include rights related to Copyright such as the rights of performers, phonogram producers, and broadcasting institutions; Trademarks, which protect signs used to distinguish goods and/or services; Geographical Indications, which protect regional names used for certain products originating from that region; Industrial Designs, which protect the shape or appearance of a product; and Patents, which protect new inventions. This Law provides a clear legal framework for the protection and management of intellectual property rights in Indonesia. While under the TRIPS Agreement, the Intellectual Property Rights category includes several types, namely: Copyright and Related Rights, Trademarks, Geographical Indications, Industrial Designs, 36 Patents, Layout Designs of Integrated Circuits, and Protection of Confidential Information. 2.2.2 Concept of AI and AI Generated Work Artificial Intelligence (AI) is a field of computer science that investigates the simulation of human intelligence in machines. AI systems are distinguished from conventional software packages by their capacity to make informed judgments and decisions through the analysis of patterns in data. AI can be categorized into three primary classifications. Artificial Narrow Intelligence (ANI), also referred to as machine learning, specializes in addressing specific problems individually and represents the sole form of AI currently available in commercial applications. Artificial General Intelligence (AGI) denotes AI with human-equivalent cognitive capabilities across multiple domains, though this level of AI has not yet been realized. Artificial Super Intelligence (ASI) would hypothetically surpass human intelligence in all aspects but remains within the realm of speculative fiction. The two principal applications of contemporary AI are machine learning and deep learning. Machine learning enables computer systems to acquire knowledge from data and enhance their performance through experience. Deep learning utilizes artificial neural networks with multiple layers to process information in a manner that attempts to emulate the human brain. 37 In the context of AI-generated work, the primary consideration is that current AI systems function as tools that necessitate human input and direction rather than autonomous creative entities. While AI demonstrates the capability to process extensive datasets and identify patterns, the creative decisions and meaningful expressions continue to rely on human guidance and curation. The copyright implications of AI-generated work centre on the requirement for human creativity. Pure AI outputs without significant human input may not qualify for copyright protection, as copyright law traditionally requires human originality. However, works that integrate AI capabilities with human creative choices in substantive ways may be eligible for protection.41 AI art, or art generated through artificial intelligence, refers to artworks created with the assistance of algorithms and machine learning techniques. This process typically involves training AI models on extensive datasets that include various artistic styles, genres, and influences. The AI learns to recognize patterns, colors, and shapes, enabling it to generate new, original pieces of art autonomously or based on specific prompts provided by human artists. Notable techniques used in AI art generation include Generative Adversarial Networks (GANs) 41 Simanta Shekhar Sarmah, “Concept of Artificial Intelligence, Its Impact and Emerging Trends,” International Research Journal of Engineering and Technology, 2019, www.irjet.net. 38 and Variational Autoencoders (VAEs), which facilitate the creation of visually complex artworks. However, while AI can produce aesthetically sophisticated pieces, it often lacks the emotional depth and personal context that human artists bring to their work, leading to ongoing debates about the originality and authenticity of AI-generated art.42 The significance of AI art lies in its transformative impact on the creative landscape. It challenges traditional notions of artistry by introducing a collaborative process between humans and machines, where AI serves as both a tool and a creative partner. This collaboration can democratize art creation, allowing individuals without formal artistic training to produce high-quality artworks, thus broadening access to artistic expression. Furthermore, AI art raises important ethical considerations regarding authorship, ownership, and the potential biases embedded in training datasets. As AI continues to evolve, its ability to adapt to cultural shifts and artistic movements presents both opportunities and challenges for artists and the art community at large. 43 2.2.3 Particularity Legal subjects are something that according to law can have rights and obligations. In Civil Law, legal subjects consist of two types: first, 42 Lucas Bellaiche et al., “Humans versus AI: Whether and Why We Prefer Human-Created Compared to AI-Created Artwork,” Cognitive Research: Principles and Implications 8, no. 1 (December 1, 2023), https://doi.org/10.1186/s41235-023-00499-6. 43 Marian Mazzone and Ahmed Elgammal, “Art, Creativity, and the Potential of Artificial Intelligence,” Arts 8, no. 1 (February 21, 2019): 26, https://doi.org/10.3390/arts8010026. 39 humans/persons (natuurlijke persoon) and second, legal entities (rechtspersoon) such as companies, organizations, and agencies. 44 Human individuals as legal subjects have characteristics in the biological sense, namely as natural phenomena and cultural beings who have reason, feelings, and will. Meanwhile, legal entities are legal subjects in the legal sense, which are present as symptoms in community life. This legal entity is a human-created body based on law and has rights and obligations like individual humans.45 In the Indonesian legal system, recognition of humans as legal subjects is regulated in Article 1 paragraph (1) of the Civil Code which emphasizes that enjoying citizenship rights does not depend on state rights. This status as a legal subject has even begun since humans are in the womb (if their interests require it) until death, as emphasized in Articles 2 and 3 of the Civil Code which regulate the legal status of children in the womb and the prohibition of punishment that results in civil death. 46 The human touch in artwork is fundamental to creative expression, involving not only the physical manipulation of materials but also the emotional depth, personal experiences, and cultural contexts artists bring. This manifests in deliberate creative choices, from color selection to 44 Periset Utama et al., “KONSEP SUBJEK HUKUM MENURUT HUKUM PERDATA DAN KOMPILASI HUKUM EKONOMI SYARIAH (KHES),” n.d. 45 Gilang Rizki Aji Putra, “Manusia Sebagai Subyek Hukum,” ADALAH 6, no. 1 (June 8, 2022): 27–34, https://doi.org/10.15408/adalah.v6i1.26053. 46 Putra. 40 unique imperfections. 47 While AI can create impressive visuals, the human element remains essential. Artists and programmers design algorithms, curate data, and decide on parameters and artistic direction. Humans often collaborate with AI, refining and modifying outputs to match their vision. This creates a hybrid form of expression where human creativity and technology complement each other. The value of human touch in AI art includes the meaningful context and emotional resonance that only humans can provide. Artists can infuse AI-generated works with cultural significance, personal narratives, and purposeful meaning, which AI alone cannot achieve.48 This transforms AI from a tool to a medium for genuine artistic expression, where technology enhances human creativity. This new paradigm blurs the lines between human and machine creativity while maintaining the essential human elements that make art meaningful and impactful. 49 2.2.4 Privatization of Public Domain 47 Atilla Kasap, “WAKE FOREST JOURNAL OF BUSINESS AND INTELLECTUAL PROPERTY LAW COPYRIGHT AND CREATIVE ARTIFICIAL INTELLIGENCE (AI) SYSTEMS: A TWENTY-FIRST CENTURY APPROACH TO AUTHORSHIP OF Al- GENERATED WORKS IN THE UNITED STATES,” 2019, https://www.huffingtonpost.com/stephen-hawking/artificial-. 48 Yang Xiao, “Decoding Authorship: Is There Really No Place for an Algorithmic Author Under Copyright Law?,” IIC International Review of Intellectual Property and Competition Law 54, no. 1 (January 1, 2023): 5–25, https://doi.org/10.1007/s40319-022-01269-5. 49 Kasap, “WAKE FOREST JOURNAL OF BUSINESS AND INTELLECTUAL PROPERTY LAW COPYRIGHT AND CREATIVE ARTIFICIAL INTELLIGENCE (AI) SYSTEMS: A TWENTY-FIRST CENTURY APPROACH TO AUTHORSHIP OF Al-GENERATED WORKS IN THE UNITED STATES.” 41 Public domain refers to creative works that are not protected by intellectual property rights (IPR), allowing anyone to use, modify, and distribute them without asking permission or paying royalties.50 The public domain is a fundamental space where information and creative works are freely available for use without intellectual property restrictions. As highlighted in the source, the public domain is essential for creation and innovation, serving as the fundamental backdrop for all creative and innovative activities. 51 Works enter the public domain when copyright protection expires, the rights holder waives their rights, or the material does not qualify for protection under IPR law. 52 The transition from public domain to private rights can occur through a variety of mechanisms. For example, when AI systems produce derivative works or enhance public domain material with unique algorithms, these new creations may qualify for copyright protection. This raises important legal questions about ownership and originality, especially as AI technology continues to advance. Privatization of public domain works through AI not only has economic implications, allowing companies to profit from previously free resources, but also challenges public access and the fundamental principles of knowledge sharing. As the intellectual 50 Abraham Drassinower, “A Note on Incentives, Rights and the Public Domain in Copyright Law,” n.d., https://scholarship.law.nd.edu/ndlr/vol86/iss5/4. 51 Ulla Maija Mylly, “Preserving the Public Domain: Limits on Overlapping Copyright and Trade Secret Protection of Software,” IIC International Review of Intellectual Property and Competition Law 52, no. 10 (November 1, 2021): 1314–37, https://doi.org/10.1007/s40319-021-01120-3. 52 Drassinower, “A Note on Incentives, Rights and the Public Domain in Copyright Law.” 42 property rights landscape adapts to technological advances, ongoing discussions are needed to balance innovation with preserving public access to cultural and creative works..53 2.2.5 Automatic Protection Copyright is inherently automatic and does not require formal registration to obtain protection. This is evident from the explanation that registering a copyright is not a requirement or condition for obtaining rights over a creation. Copyright protection is automatically attached when a creation is manifested in a tangible form. The system adopted is a declarative system, where copyright registration is merely to facilitate proof of ownership in case of disputes in the future. Registration does not create rights but provides a presumption or assumption that the person registering is the actual creator, until another party can prove otherwise. This automatic protection is also reflected in the provisions that state individuals whose names are mentioned in a creation, declared as creators of a work, or listed in the public register of creations are considered the creators, unless proven otherwise. Thus, recognition as a creator and copyright protection are inherently automatic without the need for a prior registration process.54 53 Drassinower. 54 Maya P Jannah, Maya Jannah, and MH Dosen Pengampu Mata kuliah Hak Kekayaan Intelektual STIH Labuhanbatu, “PERLINDUNGAN HUKUM HAK KEKAYAAN INTELEKTUAL (HAKI) DALAM HAK CIPTA DI INDONESIA Oleh,” Jurnal Ilmiah "Advokasi 06, no. 02 (2018). 43 The consequence for someone who infringes economic rights over work for commercial purposes is imprisonment for up to five years and/or a fine of up to one billion rupiahs".55 This highlights the significance of automatic protection in safeguarding the rights of creators and ensuring they can benefit from their works. The automatic protection system is grounded in the principle that once a work is expressed in a tangible form, it is inherently protected under copyright law. As stated in Law No. 28 of 2014 on Copyrights in Indonesia, "Copyright means an exclusive right of the author vested automatically based on the declaratory principle after works are embodied in a tangible form" (Article 1, Paragraph 1).56 Based on the TRIPS Agreement, which is part of the World Trade Organization (WTO) framework, intellectual property rights, including copyright for artistic works, are protected internationally among member countries. The agreement sets minimum standards for intellectual property protection that all WTO members must implement in their national laws. For copyright specifically, it incorporates most of the substantive provisions of the Berne Convention for the Protection of Literary and 55 Oksidelfa Yanto, Qingqing Cindy Chen, and Nani Widya Sari, “Legal Protection on Economic Rights of Pirated Work of Songs in Intellectual Properties,” Nagari Law Review 6, no. 1 (October 17, 2022): 1, https://doi.org/10.25077/nalrev.v.6.i.1.p.1-11.2022. 56 Jannah, Jannah, and Dosen Pengampu Mata kuliah Hak Kekayaan Intelektual STIH Labuhanbatu, “PERLINDUNGAN HUKUM HAK KEKAYAAN INTELEKTUAL (HAKI) DALAM HAK CIPTA DI INDONESIA Oleh.” 44 Artistic Works, requiring member countries to comply with its main provisions. Regarding automatic protection for artwork, the TRIPS Agreement, following the Berne Convention principles, provides that copyright protection is automatic upon creation of the work. This means that as soon as an artistic work is created and fixed in a tangible form, it is automatically protected by copyright without the need for registration or other formalities. This protection applies to "literary and artistic works" which includes a wide range of creative expressions, including paintings, drawings, sculptures, photographs, and other forms of visual art. The protection lasts for at least 50 years after the author's death, though many countries provide longer terms. However, while protection is automatic, some countries may require registration for additional benefits, such as the ability to file infringement lawsuits or claim statutory damages. Based on the Indonesian Copyright Law No 28 of 2014, the protection system for copyrighted works, including artwork, is comprehensive and aligns with international copyright standards. The law recognizes both moral rights and economic rights of creators. Moral rights are perpetual and include the right to be named as the creator, to use a pseudonym, and to protect the work from distortion or modification that could harm the creator's reputation. Economic rights allow creators to benefit financially from their work through various means such as reproduction, distribution, and public display. 45 Regarding automatic protection, Article 1 point 1 of the law states that copyright is an exclusive right that arises automatically based on the declarative principle after a work is realized in a tangible form. This means that as soon as an artwork is created and fixed in a tangible medium, it is automatically protected by copyright without the need for registration or other formalities. The protection lasts for the creator's lifetime plus 70 years after their death for most types of works, including visual arts. While registration is not required for protection, the law does provide a system for voluntary registration of copyrighted works, which can serve as prima facie evidence of ownership in case of disputes. This system balances the automatic nature of copyright protection with the option for creators to formally document their rights if they choose to do so. 46 CHAPTER III RESEARCH METHODOLOGY 3.1 Research Method The normative approach is a way of researching law that focuses on written and formal rules, such as studying the "guidebook" in the legal system. This approach is carried out by studying legal documents such as laws and government regulations, analyzing court decisions, reviewing theories from experts, and looking at the basic principles of existing law. What distinguishes the normative approach from other approaches is its focus on texts or documents, not on practices in the field, and is theoretical and conceptual by using written materials as the main source. In other words, the normative approach is a way of researching law by studying formal rules and official documents, without having to go down to the field to see the practice directly. 57 For my thesis, I adopt a normative research approach, a method crucial for guiding the application of findings to the study population and establishing a comprehensive context for interpreting results. This approach involves measuring, assessing, and comparing goodness, value, practicality, and functionality within a given context. As the term 57 SH.,M.Hum Dr. Muhaimin, “METODE PENELITIAN HUKUM” (Mataram, n.d.). 47 'normative' implies, this method focuses on setting standards for behaviour by explicitly defining possible, desired, or feasible ways to act, thus creating expectations for interactions. This method is particularly prevalent in disciplines intersecting with the legal social sciences, and in my case, it serves as a valuable tool for studying and setting norms within the context of my chosen research topic. 3.2 Type of Data Data is classified into two main types, primary data and secondary data. In this research, the chosen data source is secondary data. Secondary data refers to information that has been previously collected by other parties and is available to the public or accessible to researchers. This category of data includes literature, reports, or published statistical data. Opting for secondary data in this study impl

Comparative Study on Copyright Enforcement of AI Generated Artwork (Thesis)

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