Copyright's Foundations and Trade Agreement Constraints on AI Policy

Copyright law finds its traditions in the protection of historic industries such as books, film and music. It evolved consistently with new technologies such as photography and the Internet.

Copyright protection extends to the expressions of works but not to the works’ ideas, procedures or methods of operation, or theoretical concepts or theories. This demarcation between expressive and non-expressive elements is an axiom of international copyright law and of virtually all national copyright laws and European copyright law.¹ Copyright is justified as a means to provide monetary incentives for creating new works in the possibility of recouping investments made by a creator through the creation process.²

Copyright is limited to a specific duration. The length of copyright depends on subject matter and jurisdiction. In most countries this ends 70 years after the creator’s death.³ On the expiry of copyright, a creative work falls into the public domain and can be legally used without permission. Despite public domain status of a work, historically in Europe, the moral rights remain, which may lead to certain forms of use being inadmissible, such as an infringement against the author’s personality rights.

Exploitation of copyright usually takes place through a copyright owner granting a license of some or all of their rights to others instead of assigning the copyrights to another.⁴

Copyright in Continental Europe derives mainly from the author’s right (droit d'auteur), which evolves from Roman law and the concept of ownership, as dominium, an essentially absolute right over property, inviolable and good against the world.⁵ It developed out of the labor theory of John Locke and personality theory of Hegel and Kant also inform the development of copyright law in Europe.⁶ So-called ‘moral rights’ exist to protect the right of attribution (paternity), right of integrity (preventing distortion of the work) and right of disclosure (deciding when/if to publish). These are inalienable rights and persist even after economic rights are transferred. This philosophical approach often explains why European courts view moral rights violations as personal affronts, requiring non-monetary remedies, unlike the more commercially-focused US approach.⁷ While not completely harmonised at the EU level, member states provide some form of moral rights protection including by ways of rights of attribution, rights of integrity and rights of disclosure.

Today, international law plays an important role in harmonising intellectual property rights, including copyright, across jurisdictions. It ensures a minimum baseline for commonality in the substantive protections afforded through copyright.⁸ The key instruments enabling this are discussed in the following.

Copyright law grants an exclusive bundle of rights to creators to control who can reproduce, distribute, adapt, perform, or exhibit their work. The leading international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works adopted in 1886 (“Berne Convention”), serves as a baseline for most national copyright laws. Traditionally, copyright refers to the protection of all types of literary and artistic works that constitute the author’s intellectual property, such as books, music, and movies. The scope and degree of copyright protection has expanded over time due to technical developments for reproducing and copying and increasing globalisation.⁹

The Berne Convention established an important ‘three-step test’, for which exceptions to copyright must follow. This approach has been followed in subsequent international agreements (see immediately below). Under the three-step test for exceptions and limitations to the right of reproduction:¹⁰

Further international agreements on copyright were later developed, including the TRIPS Agreement.

The TRIPS Agreement provides a minimum standard of the substantive aspects of all fields of intellectual property rights.¹¹ It, and its related WIPO-administered treaties (WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty) set forth various international obligations related to intellectual property, including copyright. They were designed to update and supplement existing international treaties on copyright and related rights, including the Berne and Rome Convention. This includes:

WIPO has actively addressed AI-copyright issues. It’s 2023 Draft Issues Paper identified critical questions around training data copyright exceptions, noting significant jurisdictional divergences between countries adopting broad AI-friendly exceptions (Japan, Singapore) versus those maintaining restrictive approaches.¹³ The WIPO Standing Committee on Copyright and Related Rights has examined AI-generated works' copyright eligibility, with most jurisdictions maintaining human authorship requirements despite potential pressure for harmonisation as AI capabilities advance.¹⁴

Recent trade agreements increasingly include intellectual property chapters that may constrain national flexibility in AI copyright policies. For example, Article 20.5 of the USMCA requires "adequate and effective protection" of intellectual property rights, that could limit AI training exceptions, though general exceptions provide some policy space.¹⁵ Article 18.68 of the CPTPP mandates copyright exceptions comply with the Berne Convention and TRIPS Agreement styled three-step test, creating implementation tensions among parties with different AI training approaches.¹⁶ EU trade agreements include intellectual property chapters with copyright provisions that may limit AI-friendly policies in partner countries. For example, CETA requires compliance with WIPO internet treaties and technological protection measures that could limit broad exceptions for AI training data use.¹⁷ Investment treaty provisions create additional constraints through investor-state dispute mechanisms, where copyright holders could challenge AI training exceptions as indirect expropriation or a violation of fair and equitable treatment standards.¹⁸

These international constraints require countries to balance AI innovation, creator protection, and international legal compliance, which increases the need for international coordination on AI copyright policies.¹⁹