The Copyright Fallacy for AI: Analysis of Ruling 788/24-EPI-01-2

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The Specialized Chamber on Intellectual Property of the Federal Court of Administrative Justice has just issued a ruling that lays bare one of the most serious conceptual errors at the intersection of artificial intelligence and intellectual property: the confusion between processing tools and creators.

The dispute arises from a registration application filed with INDAUTOR for a work allegedly "created" by the AI platform LEONARDO. After receiving a denial through official notice DRPDA/SROC/497/2024, the applicant challenged the decision by arguing that the AI system deserved recognition as the author of the work.

What is truly revealing in this case is the legal theory advanced by the petitioner. In his response to the Institute's request, he stated verbatim: "I request the protection of moral rights in favor of the artificial intelligence, since, although I provided parameters (photographs), it was that generative artificial intelligence system that had the capacity to make the decision to carry out the creative activity." This declaration reflects a fundamental misunderstanding of the nature of computational tools.

The applicant's argument is equivalent to claiming that a calculator "decides" to produce the correct result of a mathematical operation. AI, however sophisticated, executes predefined algorithmic processes, analyzes statistical patterns, and combines elements according to programmed rules. It "decides" nothing.

The applicant attempted to support his claim by arguing that "the Berne Convention for the Protection of Literary and Artistic Works of 1886 does not expressly restrict artificial intelligences from being considered creators," and that the WIPO Glossary of Copyright and Neighboring Rights "does not explicitly prohibit recognizing artificial intelligence as an author." This reasoning ignores the fact that the absence of an express prohibition does not constitute an implied authorization.

The tribunal is correct in drawing a crucial distinction between the human creative process and automated generation. When an artist uses tools — whether traditional or digital — each decision reflects his or her creative intent. The instrument is a means of giving form to an artistic vision. In contrast, a generative AI processes information according to preset parameters, without genuine creative autonomy.

The ruling grounds its decision in Article 12 of the Federal Copyright Law, which unequivocally establishes that an author is the natural person who creates a work. This definition is not arbitrary; it reflects the understanding that authorship requires the capacity for conscious decision-making and personal expression. As the tribunal notes, citing prior case law: "the creativity of a work is linked to the capacity for creation inherent in the human person — that is, to the faculty of producing something, of giving it life in a figurative sense; hence a work can only be authored by a natural person."

The tribunal exposes the practical absurdity of granting moral rights to an AI. Moral rights protect the personal bond between author and work, including the decision over disclosure, the protection of the work's integrity, the assertion of authorship, and the right to object to modifications that harm one's reputation. The mere enumeration of these rights makes plain the absurdity of claiming their exercise by a computational system.

The ruling establishes that "for a work to be considered an object of protection, the following elements must concur:

That it be a product or creation of the human intellect, That its elements not be widely known, of general and common use, It must contain some special characteristic that distinguishes it, (originality)."

1. That it be a product or creation of the human intellect, 2. That its elements not be widely known, of general and common use, 3. It must contain some special characteristic that distinguishes it, (originality)."

AI, by definition, cannot satisfy these requirements.

The applicant also attempted to argue discrimination, claiming that the authority had "implicitly and without justification denied authorship recognition to the creator of works made by someone other than a natural person." This argument ignores the fact that the distinction is not discriminatory but fundamentally conceptual: tools, however sophisticated, are not creators.

The Tribunal's ruling does not merely resolve a specific dispute; it establishes a crucial precedent for the digital age. The distinction between tools and creators must be kept clear, especially as technology becomes more sophisticated. Creativity protectable by copyright requires conscious intent, personal expression, and genuine decision-making capacity. These are inherently human qualities that no processing system, however advanced, can replicate.

The case serves as a reminder that the complexity of a tool does not make it an author. AI, even in its most advanced form, remains an instrument in the service of human creativity — not its replacement.