Presented as the sworn enemy of artistic creation, artificial intelligence could paradoxically become its best ally in terms of protection. Provided that its use to detect online violations does not fuel controversial practices, bordering on abuse, such as copyright trolling.
Often singled out by rights holders and authors' or publishers' organizations, as evidenced by the recent subpoena against the Meta group, artificial intelligence nonetheless remains a powerful ally in tracking down violations on the Internet.
Visual recognition tools have made spectacular advances in recent years. Gone are the days of simple pixel comparisons: algorithms now detect modified, cropped, or fragmented original works in real time, whether they are circulating on social networks, streaming platforms, or online marketplaces.
This is a boon for rights holders who struggle to enforce their intellectual property in the digital ecosystem, while the unauthorized sharing of works represents a considerable loss of revenue for the culture and entertainment industry.
Copyright trolling, or the threat economy
Faced with these massive violations, some players have chosen an aggressive response by commissioning specialized companies that acquire limited exploitation rights to certain works with a single objective: to track down offenders.
Standardized compensation requests are then sent to them, under threat of legal action. In practice, these legal actions remain rare: the economic model is based on "voluntary" payments from the accused persons, who are often prepared to comply to avoid the risk of a trial.
This practice, known as copyright trolling, proves to be particularly lucrative.
As the Advocate General of the Court of Justice noted in the Mircom case (CJEU, June 17, 2021, C-597/19), even if only a fraction of the people contacted pay the sums requested, the revenue generated can sometimes exceed that from the legal exploitation of the works.
However, this strategy is not so much aimed at enforcing copyright as at monetizing its violation. It is no longer the creation that generates value, but the infringements it gives rise to.
An approach that is not without raising fundamental legal questions. Because for the CJEU, exercising rights solely for the purpose of claiming compensation from alleged infringers may constitute an abuse of rights.
An old phenomenon, a new technology
The process is certainly not new. In the 1870s, Thomas Wall had already had the idea of taking advantage of the fixed fine of two pounds sterling provided for by British law in the event of unauthorized representation of dramatic or musical works.
Unlike modern collecting societies, which act upstream as agents to negotiate licenses, Wall intervened a posteriori, once the infringement had occurred, not to prevent infringements but to profit from them.
This practice, well documented in the United States, is not limited to copyright: patent law also has its trolls.
The phenomenon has since grown, driven by companies such as Picrights, Permission Machine, Rights Control and Pixsy, which specialize in tracking unauthorized use of photographs, or Monotype Imaging, active in the field of typographies.
However, let us remember that copyright protection is not automatic: the work must be original, that is, bear the imprint of its creator's personality.
Thus, a typography whose form responds solely to technical constraints will be excluded from the scope of protection. As for photography, it will only be protected if a personal approach can be demonstrated in the choice of subject, moment, angle, framing, contrasts, or light.
Understandably, the assessment of originality and infringement in copyright law requires a casuistic and nuanced approach, which does not fit well with the mass sending of standardized formal notices.
A protection tool... to be handled with care
Artificial intelligence offers rights holders and their intermediaries a powerful automated detection tool, particularly welcome at a time when intellectual property infringements are on the rise. But this new arsenal calls for increased vigilance.
More than ever, the challenge is one of balance. Properly regulated, artificial intelligence can strengthen creativity and its legitimate protection. Left in the hands of opportunistic actors, it risks transforming copyright into a simple lever of economic pressure, far from its primary purpose: to protect the work and its author.
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