Copyright protection, in the spirit of the Berne Convention, is in principle not subject to formalities. In theory, registration is not required for the right to exist. The World Intellectual Property Organization summarises this principle by stating that protection “is obtained automatically upon creation of a work, without the need for registration or compliance with any other formality”, explicitly linking this to Article 5(2) of the Berne Convention[1].
However, this principle of automatic protection should not lead creators to complacency. The recurring difficulty in copyright law lies in proving the right. Traditionally, proof of priority has been a key element in its recognition. Today, because AI makes the boundary of human contribution more contestable, evidence plays an increased role in demonstrating the very existence of the right.
Even though the European Union has not yet settled the legal classification of certain AI outputs, other jurisdictions, as well as market practice, platforms, litigation and contractual negotiations, already require “creators” to demonstrate what they have done, how they have done it, and where originality lies.
It should also be recalled that, although under the logic of the Berne Convention copyright exists without formalities, this does not prevent US law, for example, from making certain procedural and financial advantages conditional upon registration.
For “United States works”, the statute establishes a precondition to bringing an action (“no action … shall be instituted until preregistration or registration … has been made”)[2]. Likewise, access to “statutory damages” and “attorney’s fees” is, in practice, precluded where infringement commences prior to registration (17 U.S.C. § 412)[3].
The issue is therefore not merely theoretical discussion of human authorship, but also the adoption of a litigation and commercial strategy, in which proper framing (what is claimed and what is excluded) may determine the value of protection.
Under US law as currently applied by the US Copyright Office (“USCO” or the “Office”) and confirmed by the federal courts, a work is protectable under the Copyright Act only if it is authored by a human being. The US system refuses to recognise authorship where content is presented as created solely by a machine.
In this respect, the United States Court of Appeals for the District of Columbia Circuit confirmed, in Thaler, that where an application designates an AI as the sole author, the USCO may refuse registration, as the statute presupposes human authorship at the origin of the work.[4]
This US requirement does not mean that AI makes all protection impossible. It means that it is necessary to identify, and then to evidence, the human contribution within a process involving AI, referred to here as AI-assisted generated content.
The USCO formalised this approach in guidance published in March 2023. It states that where traditional elements of expression such as wording, choice of words, visual forms and composition are produced by the machine, the work lacks human authorship and will not be registered.
Conversely, an author may obtain protection for a mixed work, described as “a compilation”, where the human contribution is real and sufficiently creative, in particular through selection and arrangement or through substantial modifications.[5]
Find the full article in Expertises magazine No. 520 – February 2026, “Quand la justice hallucine”: https://www.expertises.info/
References:
[1] (WIPO, “Copyright Registration Systems”, https://www.wipo.int/en/web/copyright/activities/copyright-registration/index) (See also Berne Convention for the Protection of Literary and Artistic Works; https://www.wipo.int/wipolex/fr/text/283699)
[2] (17 U.S.C. § 411(a), https://www.govinfo.gov/link/uscode/17/411)
[3] https://www.law.cornell.edu/uscode/text/17/412
[4] (United States Court of Appeals for the District of Columbia Circuit, Thaler v. Perlmutter, No. 23-5233, 18 March 2025, p. 9, https://media.cadc.uscourts.gov/opinions/docs/2025/03/23-5233.pdf)
[5] (U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 16 March 2023, pp. 4–5, https://www.copyright.gov/ai/ai_policy_guidance.pdf)
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