Warfare of Art & Law Podcast
Warfare of Art and Law Podcast sparks conversation about the intriguing – and sometimes infuriating – stories that arise in the worlds of art and law with artist and attorney Stephanie Drawdy.
Warfare of Art & Law Podcast
AI, Copyright and Justice - A Conversation with Copyright Lawyer Anja Neubauer
To learn more, please visit Anja Neubauer's site.
Show Notes:
1:30 background in the law and tech
4:45 overview of global framework “AI and Authorship Redefined: Towards a Global Copyright Framework for Commerce and Human Originality - Exploring Ownership, Infringement, Moral Rights, and Human Originality”
12:35 question of authorship
19:35 moral rights
26:30 viability of global copyright
28:20 issues of injustice raised by AI
34:30 German study about developers’ infringement
38:00 public’s choice to lock up data
39:00 The Congress
Please share your comments and/or questions at stephanie@warfareofartandlaw.com
Music by Toulme.
To hear more episodes, please visit Warfare of Art and Law podcast's website.
To leave questions or comments about this or other episodes of the podcast and/or for information about joining the 2ND Saturday discussion on art, culture and justice, please message me at stephanie@warfareofartandlaw.com.
Thanks so much for listening!
© Stephanie Drawdy [2025]
I'm fascinated by the evolving implications of tech on copyright law and Anya shares about her research degree project for her PhD, entitled AI and Authorship Redefined towards a global copyright framework for commerce and human originality, exploring ownership infringement, moral rights and human originality. Anja Neubauer, welcome to Warfare of Art and Law. Thank you so much for being here.
Speaker 1:Thank you so much for having me here.
Speaker 2:Thank you you so much for being here. Thank you so much for having me here. Thank you, would you give a background of your history and your work and what brought you into this niche area?
Speaker 1:Yes, so I'm a lawyer and I have 20 years plus experience in copyright law in practice, which I don't do anymore, but I'm an expert, so in copyright law and technical law and when? So, of course, it was always clear that we have artificial intelligence, and I'm I'm a sci-fi geek, and so it was obvious that we will have a technology someday, someday in far future or nearer future, that would turn everything on the head, that would make everything possible. We know from the 80s movies, but artificial intelligence was something that was still far away and that we had in our email programs for correct grammar if you're writing an email or so. And then, two years ago, when OpenAI went public, I saw that there was a real change. I saw that there was a real change, so my head started exploding of ideas what the consequences might be then or now for every branch affected. And so this is why I firstly thought, okay, I'll do my PhD.
Speaker 1:But the deeper I went into this rabbit hole, so to say, the more this idea became. It is necessary that I do this, because there were so many papers that only said we should, would, could, but nobody dared to say, okay, this is my draft, let's discuss it, and so I will make my draft, and I know there are a lot of mistakes in it and a lot of things it cannot solve as problems as we see them now, but at least it's a try. Afterwards everybody can kill me and hate me and and whatsoever, but at least we have to try, because I think if we don't try, we will lose creativity not only job losses, of course not. It's. It's like I think the world will always find its way of living, so nothing is ever lost. It's.
Speaker 1:Imagine the times in the 80s, vhs. Everybody was in in. We called it videotechen, so stores where you could rent those tapes. And now, if you ask a kid nowadays, do you remember what? So, but those people are still alive and they have jobs and they went on, they developed. So I'm quite optimistic and I love AI. That's the other hand side. So yeah, so I'm I'm just um a technic fan, a sci-fi fan, and so yeah the, the framework that you mentioned.
Speaker 2:Uh, there are 11 parts to it, I I believe. Would you kind of give an overview of the framework that you have developed and just kind of walk us through the overview of the points that you're trying to make in your framework?
Speaker 1:Yes, I will try to do that in just one sentence each. So, um, there is something like a structure. These are not articles like in the law, but just suggestions what should be done, because it's impossible for me alone to arrange an article, like a legislature would do that, of course. So the the first article says that we should change the definition of work, that work should be defined as an original creative expression, of course, but that it should be an integrated thing of semantic content, so the ideas, the meaning and emotional or intellectual expressions, and the syntactic content, so the structure, the form, the technical composition. And this because it's related to the Berne Convention, if you take this as the treaty that everybody agreed on and is confident with. So this part has to be enlarged, it has to be more than just this one type of definition. It has to be enlarged that there is also a semantic way. We have something similar in German law, so in the legislation not it's in the case law, so to say, it's called the principle of the small coin that at least there must be a small intent of originality of something that you meant that is involved in the creative process. So, and maybe we should enlarge the work definition.
Speaker 1:The second is that we have to define authorship, definitely. The third article. There should be requirements for licensing agreements, not only for the AI companies but also for those who are recreators of it. So we also need payment models, licensing models, and we need a protection. So that would be article 5 for moral rights that the artists or the creator is mentioned in some way. I don't know if the technology will ever be able to do that, but I'm quite optimistic because, um, now we have something like watermarks. That might be helpful if you could be, if you could have something like like watermarking. Um, yeah, moral rights, so to say. I can't even express it what I'm meaning, just in written form. It's easier for me because I'm the non-native speaker. I'm sorry for that. And, um, we need definitely an, uh, an article about transparency in AI development. That is very important so that everybody knows what is happening, what is inside, what goes inside, what is stuck in there, because this is one of the most important questions, if it's not copyright infringement, from the very second, something is developed by AI. Second, something is developed by AI.
Speaker 1:A long time myself, I thought that the things that are created by AI is not a possible copyright infringement because it creates something new. It's not like in a database and it's flowing out of the vector arrangement that just imagines and, um, yeah, reconsiders a new work. So this is where I struggled a lot, but now it's obvious that partly it really saves and remembers parts of it, and so there's always the possibility of the recreation, and so the memorizing itself is the thing that makes it a huge copyright infringement, so to say. And of course, in Article 8, I say that we need exceptions for educational purposes, because I think it's very, very helpful, especially for training for kids, for elderly people, for I don't know what else. For every kind of training it's very helpful because the AI can exactly measure at what level you are and how to excel your own capabilities. So there must also be some kind of exception for that.
Speaker 1:Of course, the licensing and attribution is mentioned, the protection of personal rights after the death of a person. I don't know how many cases. I have one case that I found there was a comedian who died some years ago and I I recreated a program of him with his voice and with nowadays jokes, like in the style he would have done them, which I find very interesting, but which I find very interesting, but it's, it's spooky. And then we had the same here in Germany some some weeks ago. There was an artist. She died almost 20 years ago and she was in a tv series and now she is back in the dreams of her grandchildren and playing her role again. It's really spooky. Maybe you know Gladiator Oliver Reed died during filming and with clever techniques of CGI they reproduced him. So yeah, would would notice, except if you saw the gladiator movie with the director's uh, uh cut and yeah. So this is very important also have protection in this, this area, and of course, and that's the most important, I think we need a global alignment.
Speaker 2:Thank you so much. That's beautifully done and so so many points to follow up on.
Speaker 1:I'm sorry.
Speaker 2:No, no, it's just because you've covered so much terrain and you have to with something like this. So just a couple of points I wanted to pull out. Could you go back and just speak a bit more about the authorship and how you see it differing across the three jurisdictions that you focused on and what you think needs to be done with that in a global approach?
Speaker 1:yeah, authorship is different. In the us it says it's, of course, is human, but it's also possible that computer made works are protected so and that's something that's impossible in.
Speaker 2:Germany.
Speaker 1:We have this strict authorship that it has to be a human being, a human intent and their menschliche geist. That's behind it, and in the us, the copyright office is really struggling with it and making a lot of very clever um suggestions, I think because they say we have to make it different. On the one hand side, we we don't want to forbid everything, because it's also very important that we have AI for commercial reasons, and so they want to have a balance between the, the human author, and the AI co-author, and so there were several cases like Daya of the Dawn and so on, and they tried to keep a balance somehow. So in Germany we have no regulation at all, so it sticks with the human authorship and nothing else is possible. In my opinion, it should be something like the suggestions the copyright office prompting alone can't be as this spark that is necessary to be really creative. So that was the idea to say you need to have a semantic and a syntactic part of a work that is created in order to be protected.
Speaker 2:With that kind of thought, would it in your view be enough if, say, a drawing by the human hand is put into the AI tool and then prompts built on top of that, or a photograph by human hand with a camera put into an AI tool? Would those be sufficient to then prompt under the model that you're kind of proposing?
Speaker 1:Possibly, yes, but not the other way around. But not the other way around. If I'm just prompting, give me a field of of of red roses or so, and I get this, and I'm just changing the prompt a little bit. It's not enough creative work of me to make this copyrightable. But maybe if you, if you take a photograph and, for example, say, uh, make these fields of roses that I made the photograph of, make it vivid, and that the roses do something, then I could think about some kind of co-production that will be copyrightable well, because the thing is, I mean and this is I mean I've just been thinking about this, the photograph as an example, because it's even more compelling than even the drawing, just knowing that photographs, historically, were challenged, at least in the US.
Speaker 2:I'm not sure how it, what the history of it was in Germany, If you know, please share, but the idea that you know there was a challenge. Can photographs be copyrightable? And, yes, they finally decide they can be. And now it seems like if a photo can be copyrightable and you're putting it into an AI tool, it's already copyrightable. So then, if you're doing additional work on it, it seems like almost a given that if it starts with a base of your photo or your drawing and then you prompt with it, it's already been copyrightable going into the AI tool. So how could it magically be uncopyrightable when it comes out?
Speaker 1:Yes, but you mentioned something very important it's your copyright, it's your photograph. It's something different. And if I say, take what you have in your pool of vectors and create something for me and then try to make arrangements, that's something completely different. If you go and arrange, rearrange your photograph, so why shouldn't it be copyrightable? Because if you also can make collages, for example, why not?
Speaker 1:Where it becomes very tricky is when it is an homage, a pastiche. Then it's very, very, very, very difficult. So a pastiche always. So by german law, a pastiche always needs this, this human factor. There was a possibility, I think half a year ago it was Kraftwerk song again, and they are fighting for centuries in the meanwhile. And now the European court has to decide if this tiny part of music in the intro, if that is copyrightable, if it's a pastiche, what they use or not. So the opponent said yes, of course it was a pastiche, and the other said no, you took it right away. It's not a pastiche Taking it into your song. It can never be a pastiche taking it into your song. It can never be a pastiche because. So this is um now examined by the european court and it would be pretty interesting to find out, because from this we could take some analogies to put into our other ideas about how to cope with AI in this particular area. So it's a lot of case law I think we are facing in the near future. Yeah.
Speaker 2:And then the moral rights. I thought that was so important that you put that in there. Could you kind of speak to that, and what is the current state of affairs for moral rights in Germany?
Speaker 1:rights, I thought that was so important that you put that in there. Could you kind of speak to that? And what is the current state of affairs for moral rights in Germany? Ah, that is something that I found out was very interesting. I think we have the strongest moral rights protection from all legislations.
Speaker 1:So in America you only have VARA, and this only protects some sort of physical things, and then only in a certain amount where the name is protected. So that's weird. It's really weird. You don't have it. You are not obligated to put your name anywhere. Instead, in Germany you don't need to write a C for copyright under a picture. Everybody knows you mustn't steal that. So you have the copyright even without it. So you have the copyright even without it. And it might be a trade disturbance if you put it there. It might irritate the other businesses around, so you shouldn't do that. So in Germany the author's rights are very strong and, to give you an example, by case law was decided.
Speaker 1:There was a photographer who sent a cd with his photos to a magazine and said well, I'm a reporter, I make these photographs. If you're interested, call me. This is just an example. A few weeks later he went to a shop and bought this magazine and he opened it and saw all his photos used there and he wasn't mentioned. And then, of course, he sued the magazine, of course. And then he said well, the most important thing is, it's not about the salary, the licenses I would have gotten if they would have bought it from me, but the most disturbing thing is that they didn't put my name under the pictures, because now nobody knows that I'm the great photographer. And then the judges said okay, you're completely right, we must give you that you could have sold more photographs, but we don't know how many. And so let's decide. You get a so-called verletzerzuschlag. So you were disturbed in your rights and therefore you get the double fee. So if the license would be 100 euros, then you would get, just for not mentioning your name, 200.
Speaker 2:It's a so-called per photo or just for the whole incident?
Speaker 1:No, per license, so to say, and this was something that was used by free online picture databases Very interesting. So they said these photographs are for free. And then the fine print on the homepage it was written but you have to mention the name of the photographer. So all the people oh, free photographs. Put it into the homepages and they searched for them. It into the home pages and they searched for them, and so they were sued because of, of course, they were allowed to take the photograph, but they didn't mention the author, and so they all had to pay the money just for not mentioning.
Speaker 1:So you see, it's, it's mean and these were non-quality photos, and so kleine münze um. Of course, you can only have a photograph that's only from a daisy that you can take. So it's, it's not really art, we are talking about just stock pictures, and it was very frustrating for lawyers because of this somehow unfair suing campaigns that were started, and later on the fees were reduced, so this was stopped. But it gives you an idea how copyright can also be misused in Germany. So to stress is what I have to stress is that the moral rights in Germany are very strict, that they really assure your income, and I also think in some way it's really necessary that you as an author, as an artist, you need that.
Speaker 1:So there are only a few cases where you really know who the author was, for example, eminem. If you hear a song from him, his voice it's so unique, you immediately know it was him. But what if AI covered it? So there we go. On the one hand side, it's not possible to have moral rights so to name the author in a voice or in a song. But on the other hand side, everybody knows. But now we have AI and it's possible. What was unthinkable before you really can cover it. There was something from Terminator 2 when the Terminator covered the voice of the mother of John Connor. And now we're at that stage and nobody knows how to to handle this, and this is something that is. I only can hope that we have the technological possibilities to fix that, that we have something at least like watermarks, to prove that something is original or not, or what is created or not and then just the challenge.
Speaker 2:I mean all the things, all the details and the nuance of concerns on how, each case by case, the facts will really really dictate which way something should go, and the idea that you could have a global understanding and agreement on this just seems. Some people describe it as very doable and then, when you get into the weeds of it, you can start to feel like it's not possible. What would you say to that?
Speaker 1:um, I I. I know that many people think that it is delusional to say we will have a global copyright to try, so that seems like a very optimistic attitude and, yeah, I think it's. It's okay if people laugh about it, but I think about all the original works that need to be protected in some way. At least we should try. I don't know if it works out. I can't tell you because the technological development is so fast at the moment. Maybe in two years we have a development that we don't even discuss that anymore, that we only laugh about it, because then it's perfectly clear that the originator of any work can be connected and identified immediately with the wink of an eye and we don't need to take care about it.
Speaker 2:I don't know, but at least we should try and think about it and so the entire conversation to me seems like it has, uh, concerning points that where you could see there is injustice occurring or that could continue to occur, and so are there certain points on that that you would like to raise yeah, in, just so.
Speaker 1:The most important thing is that the fair distribution of rights, the recognition and the accountability in creative endeavors and balancing innovation with human dignity I think that's what I would define justice in this area, and this is very important to me and, I think, of course, for all the artists. So a lot of artists are really devastated. They say how can I make money with my work anymore if it's so inflational? So you can ask AI, and it does the job better. There were IT experts, ai experts that said, well, let's find out. If AI is better than the human being, then AI would take over. I don't know, I don't know, but I think, yeah, that's something that I think we should try to regulate, even if we don't have the hope to finally change it in the last second. So, because AI is there and it will never go away and there might be a real chance that, for example, hollywood is over.
Speaker 1:This is what I thought when, last year, zora was introduced to the public and we see it All the directors are joining boards of ai companies. David cameron, I read some month ago, was joining some board, maybe just for special effects, maybe hopefully, but I I don't know if he, if he. But I think something like originality will always be um the most important thing. I cannot imagine having, for example, a house with use huge pictures. There are only LCD monitors or so. These must be real-life paintings, and I think that original paintings, for example, will still be the most precious thing. This is something art or artificial intelligence can't cover in that way. Of course, there was already an AI that made pictures. I read that but I think it's something completely different if it's human painted and you can ask the artists what was your imagination? What did you feel? What did you feel, what did you think? And this together is more precious than anything artificially generated could ever be.
Speaker 2:And that really does hone in on the idea that, in our current era, even the definition of art is becoming even more of a charged topic, based on what you were just describing so if you're a painter, I think this is art that will never die, like being a talented singer.
Speaker 1:I think there will be ways.
Speaker 2:I don't know why, but I think it will take its time and it will make its way. Well, I completely agree that a global approach is very needed, considering we've just looked at in your PhD, you've just looked at the three jurisdictions, but there are so many others that have such a wide array of approaches and it does kind of leave people wondering with our in an era where there is the jurisdictional lines are blurred so much in the way we exchange information, and how can there not be a global approach to this and it will hamper us going forward if we don't have one. I I imagine that was your inspiring thought when you began this phd thesis yes, taking everything from everywhere, but I had to shrink it down.
Speaker 1:The field is way too too huge. But if you take the best from the us law, from the british law and from our law and try to make connection, a mixture of it, taking just the best of it, and then let's have a discussion, so not only would, could, should, just do it. So this is more or less the practical side in me. That's shouting come on, we need to do something now. But I think anyway, it's, it's really late, I'm way too late. I'm I'm way too late with that. I should. You need to hurry with the legislation and also with the regulation of AI itself. So this is something that nobody has to talk about.
Speaker 1:So there was a study in Germany that came out in July. It also said that OpenAI and all the other companies are huge copyright infringers because the AI is memorizing things and so therefore, this is practically always a copyright infringement, and also the collection of data by European legislation. They say, well, it's allowed for AI. No, it's not comparable, because the AI does not only take the data if it crawls through the internet, it divides, it takes the syntax and also the semantic part of the data, and so there's not only pure data. Data would be allowed, but not with the semantic part of it, so this is also not allowed. So, in the end, when, when you, when I, when we use openai, gemini, whatever they are called, we're using copyrighted material, or at least parts of it. So we are copyright infringers. You have to say that. Yes, we are copyright infringers.
Speaker 2:Unless the data was ethically taken.
Speaker 1:Unless, unless. But do we know how did they get the data? The idea was in the very beginning we make open ai open source. Everybody could see it, develop it, make it better, and then it was closed and now it's not open source anymore and now it's not profitable. It makes no profits yet. No, although they rose the price. It's now 200 euros if you want to have the pro version with Sora in it. I didn't test Sora yet, but the Chinese it's called Tencent.
Speaker 1:Just last week they started one video or so. It's open source. It's mind blowing. It's so real you can't trust it anymore. You can't trust your eyes. It's so real, you see it and it's um. It has got um consistency in characters, so they don't change, and so now it's really possible that you can fake everything flawless. It's not like taking the picture of a very popular person into a video and making some stuff to make it vivid. You, you actually can copy it.
Speaker 1:And I asked myself where did they get the data from? Of course, tiktok. Everybody's uploading its data like videos and talking to it and showing the world into this database. If they take TikTok, they have all the information they need. So a colleague of mine said last week. The only thing we can do is to lock up our data, everybody's data. It's the only possibility, because without new and fresh data, ai will die someday. And I said, okay, nice idea, but we're living from data, we're exchanging data all the time, we are feeding AI with our data and want suggestions, and so it's a give and take. I don't think we can stop it. So, you see, everybody's thinking about how to stop it on the one hand side.
Speaker 1:On the other hand side, there are grown-up kids like me that are watching this and go like, ah, this is outstanding, how does this work? Um, but I don't know where it's ending up. So have you seen, um, the movie the congress? So the the new york times came up with when, when sylva was published not for public, but when they said, okay, we have it and we will test it and then we'll come, come up with it. Uh, the new york times had an article that was called um, what was it like? Uh did? Did the movie the congress see the future 10 years ago? Something like that? That was the title, and I was curious because they said it was a movie.
Speaker 1:Um, robin wright was playing herself and she was an artist, that is, that that went older and she was asked to copy herself into an ai, and then she was. 20 years later she was invited to a congress and then they wanted to convince her that she would also give AI her smell and her body chemicals, because it was would be the news trend that people would swallow a pill, that they would be her and feel like her. It's a completely crazy movie, but in the end it turns out the real world is only for low-budget earners who are just taking pills in order to imagine to be in the real world where they feel fine but everything is in decay and rubble. And it's very thoughtful, I think, because it shows how things that are possible today might turn out in the far future, and so I think all these creepy experiences in such movies are helping to clear your mind, to see what we have to demand to keep our families, our future of our children safe in future our children safe in future.
Speaker 2:There will be links in the show notes to learn more about Anya Neubauer and her work. If you were intrigued by this podcast, it'd be much appreciated if you would leave a rating or review and tag Warfare of Art and Law podcast. Until next time, this is Stephanie Drotty bringing you Warfare of Art and Law. Thank you so much for listening and remember injustice anywhere is a threat to justice everywhere.