Moral Rights and AI: Bridging the Regulatory Gap in European Copyright Law
TL;DR
The article develops a rebuttable presumption model as the organising principle for author-centred AI regulation and concludes that in the algorithmic age, human creativity must be valued—not merely accommodated—by the legal systems that claim to protect it.
Abstract
The regulation of artificial intelligence (AI) and copyright in the European Union has proceeded almost entirely within the domain of economic rights, systematically overlooking the moral rights of authors whose works are ingested into AI training datasets and reproduced in AI-generated outputs. This article examines why this omission constitutes not merely a regulatory gap but a normative failure and proposes a framework for addressing it. Through doctrinal analysis of the DSM Directive’s text and data mining exceptions, the AI Act’s general-purpose AI obligations, and the AI Code of Practice, the article identifies a four-dimensional regulatory gap—substantive, jurisdictional, structural, and institutional—and situates it within the broader architecture of EU fundamental rights law. Drawing on the personhood theory of authorship, international human rights instruments, and the first European judicial engagement with AI-related moral and personality rights claims in GEMA v OpenAI (Regional Court of Munich I, November 2025), the article develops a rebuttable presumption model as the organising principle for author-centred AI regulation. Two complementary regulatory pathways are proposed: EU harmonisation of moral rights with AI-specific provisions, and the integration of moral rights obligations into existing AI compliance frameworks. The article concludes that in the algorithmic age, human creativity must be valued—not merely accommodated—by the legal systems that claim to protect it.