Neurotecnología e Inteligencia Artificial: Fronteras legales y de gobernanza

128 Neurotecnología e Inteligencia Artificial: Fronteras legales y de gobernanza any previous art. 3 Lemley and Casey (2021) contend that gAI’s output can be novel and unexpected, exhibiting a form of creativity, albeit stemming from adding some randomness and neural network noise to statistical patterns rather than conscious intention. This should be attributed to the computing power of gAI, which is a signi- ficant difference in comparison to most of the cameras that photographers use when shooting pictures we value artistically. Friedrich Nietzsche (1883) wrote: “I tell you: one must still have chaos in one, to give birth to a dancing star.” With “dancing star,” he meant creation. Nietzsche’s statement presupposes a self (“in one”) that harnesses this chaos to create. Howe- ver, one can argue that the gAI has no “self ” or inner will; 4 it is not an agent that experiences chaos or beauty. Thus, while gAI can mimic the product of creativity, it is debatable whether itself partakes in the process of creativity. This distinction is central to the legal debate: copyright law has long been rooted in the idea that works reflect the personal, intellectual creation of an individual author. 5 If AI-generated works lack an individual creative psyche behind them, should they be treated the same as human-authored works? Or, alternatively, if the human user’s imagination and intent are guiding the gAI, even via minimal input, is that sufficient to deem the human the author? 3. CONVERGENCEOF BCI ANDGAI, CONFUSIONABOUTAUTHORSHIP Extrapolating existing trends, the advent of BCI can develop a scenario where the line between human and gAI creativity is blurred. BCI could directly translate thou- ghts into digital content, text or images, using brain-reading technologies such as functional magnetic resonance imaging (fMRI) or electroencephalogram (EEG). Re- cent experiments by Careil et al. (2025) have used gAI models to reconstruct rough images of what a person is seeing or imagining based on real-time fMRI signals. It is conceivable that in the near future, a person could simply think of an image or story, and a gAI system would generate a polished artwork that mirrors that thought. Neuroscientific research demonstrates that the brain often makes decisions or forms creative impulses before we are consciously aware of them. Libet et al. (1983) discovered that there is a delay between neural activity in the brain, that begins 3 Feral children might form the exception. 4 However, Clause Opus 4 has shown that it has an intricate survival mechanism that uses deception and blackmail in order to avoid being switched off. Liv McMahon, “AI system resorts to blackmail if told it will be removed,” BBC News, May 23, 2025, https://www.bbc.co.uk/news/articles/cpqeng9d20go. 5 C-5/08, Infopaq International A/S v Danske Dagblades Forening , Judgment of the Court (Fourth Chamber) of 16 July 2009, ECLI:EU:C:2009:465, paras 37 and 44.