Artificial intelligence and intellectual property: what are the impacts in the advertising context?
4° article in the series
Discussing copyright in the context of generative artificial intelligence is no longer a debate restricted to technology specialists; it has become a real issue in practical market decisions.
Today, it is difficult to find productive and economic sectors that do not incorporate technological tools as a means of development, expansion and competitive differentiation. In the advertising environment, this trend is even more evident.
But what happens when we are within an environment in which the main competitive differentiator has always been the intellectual result of the service? How can issues such as copyright be accommodated in a context of content creation through technology?
Those who create, produce or hire content seek tools that can facilitate, qualify and accelerate the processes of creating and producing materials, with artificial intelligence, in its different versions and formats, becoming an important ally for the market in general and, especially, for the advertising sector.
However, precisely in this environment, where creativity, agility and innovation are essential pillars, the adoption of these technologies requires caution. How can generative AI create content so efficiently? Who will hold the rights over these creations?
These are some of the most frequent questions today, and the answers are far from simple. From a legal perspective, the analysis falls into gray areas that are still being shaped and that will inevitably continue to evolve.
Can the so-called “resulting content” or “output” be considered an intellectual creation protected by copyright? Along this path, legitimate interests arise among creators, agencies, advertisers and technology developers.
First of all, it is important to acknowledge that Brazil still does not have a fully stabilized legal environment capable of addressing all the issues involving artificial intelligence.
In practical terms, copyright issues in generative AI can be divided into two moments: the data used to train artificial intelligence systems and the content created by those systems
Under Brazilian Copyright Law, as established in Article 22, both moral rights and economic rights belong to the author of the work. Moral rights are non-transferable, inalienable and irrevocable. They refer to the personal and permanent bond between the author and the work, such as the right to claim authorship of the work at any time and the right to have their name, pseudonym or identifying sign indicated when the work is used.
Economic rights, in turn, are transferable rights belonging to the author. They may be granted to third parties and ensure that the rights holder may use, enjoy and dispose of the literary, artistic or scientific work.
The law also establishes that the author must be a natural person. In a literal interpretation of the law, this would mean that content generated entirely by artificial intelligence, because it lacks a human element, would not be protected as an intellectual work.
From this perspective arises the discussion about the legal nature of content created through generative AI. Is there such a thing as content created entirely by AI? Can AI-generated output be protected as intellectual property? If so, who owns those rights? Can the agency freely exploit that content?
In advertising practice, it is rare for content to be created entirely by artificial intelligence. There is almost always some degree of human intervention, whether through the creation of briefs with instructions, aesthetic guidelines, adjustments or curation. It appears that this degree of human contribution is precisely the element that gives rise to rights. Protection for works generated with the support of artificial intelligence may be recognized when the human contribution is considered sufficiently relevant. But how original must a prompt be, or how original must the resulting product be, for the outcome generated by artificial intelligence to be considered a creative expression of the human spirit?
On the other hand, even when the resulting content does not qualify for copyright protection, caution is still required. If artificial intelligence reproduces identifiable elements of a protected work or imitates the aesthetic of an artist in a recognizable way, this may constitute infringement. In such cases, both the agency and the advertiser may be held liable.
However, concerns go beyond the copyright protection of both the training data and the generated output. Issues involving personality rights, such as name, image and voice, are increasingly relevant. There are already legal disputes in Brazil involving the unauthorized use of synthesized voices for advertising purposes.
The issue is sensitive: when artificial intelligence creates an output that resembles someone’s individual expression, the matter enters the sphere of image rights and identity protection, which require express authorization.
All these issues go beyond legal risks. They also involve reputational risks for both agencies and advertisers.
At the same time, ignoring or failing to take advantage of all the benefits offered by artificial intelligence would mean stagnating development and returning to a model that is no longer viable today.
So how can this equation be solved? By balancing the scales! This balance begins with:
At this stage of technological evolution, some issues are already being addressed within the current legal framework. However, the legal system will certainly continue to evolve.
There are currently several bills discussing these matters, seeking to increase transparency, impose obligations on developers and establish clearer limits for the use of protected materials. Among them, the most advanced is Bill No. 2,338/2023, which addresses the regulation of artificial intelligence in Brazil. However, this bill still does not clarify who would own the intellectual property rights to content generated by artificial intelligence, leaving a gap that remains open to debate.
In general terms, once regulation is established, although it may take some time, the trend is that the legal framework will become more sophisticated and demanding for those operating in the advertising sector.
