Replacing Criterion of Creativity with Criterion of Investment for Results Created by Artificial Intelligence

Legal Issues in the Digital Age. 2026. Vol. 7. No. 1. P. 32–48.

Pakshin P.

Artificial intelligence plays a significant role in automation, minimizing human intervention in fields such as medicine, art, and law. Despite the historically close relationship between art and technology, generative AI has expanded the potential for creative activity. A significant catalyst for this process has been the proliferation of pre-trained AI systems, which have accelerated the development of technologies in natural language processing and visual content generation. The development of artificial intelligence determines a revision of established doctrinal approaches in intellectual property. This study aims to provide a justification for the legal protection of results generated using artificial intelligence. The key legal risk in this area is the lack of legal grounds for granting protection to such results under de lege lata regulation. The current “silence” of the legislator regarding objects created by artificial intelligence may exacerbate the problem of legal uncertainty. At the same time, there is a significant risk that artificial intelligence itself will infringe the exclusive rights of third parties. Beyond intellectual property rights, objects created by artificial intelligence may be unreliable and misleading, as well as violate personal data laws. These challenges highlight the need to adapt legal frameworks to new digital realities. The relevance of the study stems from the dilemma facing legislators: to recognize artificial intelligence as sui generis legal personality or to modify the protection mechanism by shifting the creativity criterion within copyright law to an investment criterion within related law. The aim of the study is to resolve this dichotomy. The methodological basis of the study is based on comparative legal and formal logical methods. The scientific novelty lies in the comprehensive analysis of the hypothesis regarding the transition from the creativity criterion to the investment criterion. The article demonstrates that modifying the copyright protection mechanism by shifting the creativity criterion within copyright law to the investment criterion within related rights represents the most preferable vector of legal policy.

Keywords: интеллектуальная собственность, искусственный интеллект, машинное обучение, нейронная сеть, intellectual rights, интеллектуальные права, intellectual property, результат интеллектуальной деятельности, result of intellectual activity, machine learning, artificial intelligence, neural network