Why Requiring 'Sufficient' Human Collaboration in the AI Creation Process Not Only Fails to Solve the Problem, but Makes It Worse

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Imposing a Subjective Condition on a Declaratory Right

If the topic of AI and Copyright interests you, I am certain you have heard, read, and discussed the argument that for a work to be protected by copyright in the age of AI, there must be a "sufficient human contribution." This idea gained traction following the USCO's second report and became almost immediately associated with the registration granted for "a single piece of American cheese," where the author recorded the creation process and "convinced" the USCO that there was sufficient human creative collaboration. That case was celebrated as the first registration granted involving AI, as though it were a victory, when in reality it marks the beginning of a dangerous precedent.

Those of us who have practiced trademark registration law are accustomed to having to "argue and convince the authority" in order to obtain a registration, but the nature of copyright is entirely different: it is declaratory. Article 5 of the LFDA imposes no greater restriction than the existence of a material medium.

It is more akin to the mother-child relationship: can you imagine the civil registry demanding DNA evidence to issue a birth certificate? Or a civil registry official telling us that our child is presumed not to be ours because the features do not match, arguing that neither parent has honey-colored eyes like the baby? It would be absurd to condition a fundamental right on the subjective interpretation of a government official.

The Declaratory Nature of Copyright Under the Berne Convention

The Berne Convention for the Protection of Literary and Artistic Works, the cornerstone of international copyright law, establishes in Article 5(2) that "the enjoyment and the exercise of these rights shall not be subject to any formality." This is the foundation of the declaratory nature of copyright: protection arises automatically upon creation, without any need for registration, deposit, or any other formality.

Requiring proof of "sufficient human collaboration" directly violates this principle. It transforms the acquisition of copyright into a process subject to the subjective evaluation of an authority, converting it from an automatic right into a conditional privilege.

It is a fundamental abandonment of more than a century of legal evolution since we moved away from mandatory registration systems.

The Creative Chain of Custody: A Bureaucratic Dystopia

Accepting the "sufficient human collaboration" standard is a terrible idea, and one worth fighting to prevent.

It would chain creators to maintaining a creative chain of custody for every work. Each creator would have to obsessively document their process: saving drafts, versions, screenshots, and the percentage of intervention by each tool used. It turns the creative act into a preemptive judicial record.

The procedural consequences would be devastating. In any copyright litigation, the defendant could automatically counterclaim alleging "insufficient human collaboration," forcing the creator to demonstrate that they meet this subjective condition. Disputes would no longer center on originality or copying, but on whether the creative process satisfies a judge's personal criterion of what constitutes "sufficient" human participation.

The Impossibility of Determining Where AI Begins

The problem becomes absurd when we consider that AI is already embedded in virtually every modern creative tool:

In writing: From the simple spell-checker to style suggestions, autocomplete, and grammatical proposals. Does a text lose protection if we accept a spell-checker's suggestions?

In photography: Every modern camera uses AI to focus, stabilize, adjust exposure and color. Smartphones create portraits with artificial blur and digitally enhance every image. Would a professional photo taken with an iPhone fail to qualify?

In design: Modern programs offer everything from automatic color correction to intelligent object removal, pattern generation, and composition suggestions. Would using any "smart" filter disqualify a work?

In music: DAWs (digital audio workstations) include pitch correction, rhythm quantization, harmonic suggestions, and accompaniment generation. Would a professionally produced song lose its protection?

The Case of Programming (Software): When Symbiosis Is Inevitable

Modern programming perfectly illustrates why this standard is unsustainable. Today, a professional programmer uses:

Tools that write code automatically based on comments Assistants that complete entire functions Debuggers that fix errors without intervention Systems that reorganize and optimize code Solutions copied and adapted from specialized forums

• Tools that write code automatically based on comments
• Assistants that complete entire functions
• Debuggers that fix errors without intervention
• Systems that reorganize and optimize code
• Solutions copied and adapted from specialized forums

If we apply the "sufficient human collaboration" criterion, virtually no software produced in 2025 would qualify for protection. This is not an exaggeration: it is the reality of how software is professionally developed.

The collapse of the copyright model in software would have catastrophic economic consequences.

Subjectivity as a Weapon Against Legal Certainty

The most dangerous aspect of the "sufficient human collaboration" standard is its inherently subjective nature. Who decides what is "sufficient"? 50%? 75%? Is it measured by time, by lines, by "creativity"?

To grasp the absurdity, consider trademark law. It has taken more than a century to develop evaluation criteria, and even then it remains more art than science. Concepts such as acquired distinctiveness or likelihood-of-confusion similarity required decades of case law to achieve even a minimum degree of predictability. And this applies only to the evaluation of distinctive signs: logos and trade names.

Now imagine building an entire framework to determine "sufficiency" in literature, music, visual arts, software, architecture, film, video games, and industrial design. Each discipline would need its own criteria. Does a 30% level of human intervention in code equate to 30% in a musical composition? Is the autocorrect function in a novel measured the same way as filters in photography?

The result would not merely be chaotic: it would be a total collapse. And while trademark law can afford to be interpretive because it is a constitutive registration system, copyright cannot do so without betraying its fundamental declaratory nature.

Conclusion: Defending the Declaratory Nature of Copyright

The requirement of "sufficient human collaboration" represents a regression of more than a century in the evolution of copyright. It means abandoning the foundational principle of the Berne Convention and accepting a system in which authors must prove their entitlement to protection before the subjective interpretation of an authority.

The celebration of the "a single piece of American cheese" case should not be seen as a victory, but as a warning. The fact that a creator had to record their process and "convince" the authority establishes a dangerous precedent that transforms copyright from a declaratory right into a privilege subject to demonstration.

The reality is simple: human creation and technological assistance are already inseparable.