2.1.1-1 Is an image from a surveillance camera a protected work?
No, this is not a human (intellectual) creation; instead, the image is created completely automatically without any human intervention.
2.1.1 Intellectual creation
A protected work must be an expression of the human mind. Consequently, everything that is not created by the human hand is not a protected work.
Works excluded from protection are therefore purely natural phenomena (e.g. stones, plants, etc.) or purely machine or computer-generated results. However, a work can exist when something new is designed from objects such as these (e.g. a painting or a photograph of a plant, or an object designed by human hands with a 3D printer) through human intervention.
The work in question must also be a creation. An intellectual creation is the “manifestation of a human expression of thought”. However, that often does not help in specific individual cases. Instead, it is more useful to ask whether a person has deliberately created something which did not previously exist. Then this can be considered an intellectual creation. It is more difficult when there has been something similar in the past or a person has (re)used templates, forms, styles, etc. Then the question needs to be asked whether the afore-mentioned has simply been reproduced or imitated, or whether new ideas and thoughts have awarded it creative expression.
The screen prints of Andy Warhol (e.g. Marilyn Monroe or Mao) or the photo of Bob Marley with windswept dreadlocks taken by a Swiss photographer at an open-air concert are good examples of this. Both cases are the expression of the human creative will to create something new or “to put something which has already taken shape in someone’s head to paper” (cf. the decision of the Federal Supreme Court 130 III 168, 175). The same can be said for the machine sculptures created by Jean Tinguely, which reflect the artist’s thoughts through their playfulness.
Intellectual creation and GenerativeAI
AI-generated content is not eligible for copyright protection due to the absence of human intellectual creation. However, this limitation does not apply to user-generated prompts. Prompts written by a person may qualify for copyright protection if they demonstrate a sufficient degree of originality. However, it is important to treat prompts and AI-generated outputs as distinct elements since the AI tool merely interprets and executes the instructions provided through the prompts.
Discussions may arise when a person adapts or modifies AI-generated output. In such cases, the extent and originality of the human contribution are key factors in determining whether the modified result qualifies for copyright protection. For example, suppose a person uses a generative AI tool to create a text on a specific topic and subsequently adapts, contextualizes, or enriches the output. In that case, the resulting work may be eligible for protection—provided the human input demonstrates sufficient originality.
Source: Y. Benhamou, A. Andrijevic, Intelligence artificielle générative d’images et droit d’auteur, in : Aspects juridiques de l’intelligence artificielle, A. Richa, D. Canapa (éd.), Collection lausannoise CEDIDAC, Stämpfli Editions, Bern, 2024
FAQ