Neurotecnología e Inteligencia Artificial: Fronteras legales y de gobernanza

131 ter-generated, the author shall be deemed to be the person by whom the arrange- ments necessary for the creation of the work are undertaken.” 9 UK law anticipates scenarios of no traditional human author and designates a kind of proxy author, often interpreted as the programmer or the user of the gAI, to own the work. This provision does not require the work to meet the usual originality standard. This is an issue of debate: some scholars argue that even computer-generated works should show a modicum of creative choices by a human, while others read the statute as dispensing with originality for such works. After public consultations, the UK gover- nment in 2021 elected to retain this rule, signalling a policy choice to offer protection, and incentive, for AI-generated products by vesting rights in the person behind the machine. Meanwhile, China has moved decisively in favour of protecting AI genera- tion. In 2023, in Li v. Liu , the Beijing Internet Court held that an image generated by the plaintiff using gAI qualified as a work under copyright law and was infringed by the defendant. 10 The court categorized the AI-generated image as a protectable out- come, essentially because it fit within an enumerated work category, namely fine art, and presumably had the requisite originality, even if the originality concept in Chi- nese law seems more fluid than in other jurisdictions. This suggests Chinese courts may not strictly require proof of a human author’s personal intellectual creation in the same way as U.S./EU doctrine does. The EU and its member states maintain the principle derived from cases like Infopaq , that a work must be the expression of the author’s own intellectual creation, 11 implicitly excluding purely gAI productions. A recent EU-wide survey (2024) indicated that most EU states still view human involve- ment as necessary, 12 yet there is ongoing debate, and no uniform rule specifically for gAI products exists at the EU level. In the U.S., copyright is predominantly a utilitarian tool for whoever expends resources; it is meant to encourage the “Progress of Science and useful Arts,” 13 by motivating human authors to create original works. If gAI systems can generate an infinite amount of art at near-zero cost, do we need any incentive of exclusive rights to spur creation? Leistner and Jussen (2025) and others have warned of over-pro- tection: granting monopolies over gAI products could flood the copyright system with low-effort works, crowding out public domain works and hindering follow-on creativity. gAI has no consciousness but operates by algorithm. To call an AI-generated product a “work of authorship” eligible for copyright protection would be a mistake, 9 Copyright, Designs and Patents Act 1988, s 9(3). 10  Li v. Liu , (2023) Jing 0491 Min Chu No. 11279 (Beijing Internet Ct. 2023). 11  Infopaq , supra n. 8 paras 37 and 44. 12 Council of the European Union, ST 16710/24 REV 1 – ANNEX COMPET.1 (Dec. 20, 2024) section 3.2. 13 U.S. Constitution, Art. I, Sect. 8, Cl. 8. The entanglement of BCI, gAI, ART and IP