Neurotecnología e Inteligencia Artificial: Fronteras legales y de gobernanza

132 Neurotecnología e Inteligencia Artificial: Fronteras legales y de gobernanza since it has merely followed a computational rule, whereas art by a human creates the rules as it invents new forms. gAI lacks the internal teleology and aesthetic judgment that characterize true artistic creation. Friedmann (2024) argued that a strict human authorship requirement can be seen as preserving the line between mere production of content (“generation”) and authorship of art (“creation”). 5. THETHRESHOLDOF CREATIVE INPUT A key legal requirement of copyright eligibility is that a work should be original, in- dependently created with a modicum of creativity, instead of a “sweat of the brow” requirement. 14 If gAI allows every person to create complex artwork with virtually no effort, does the lack of human labour or skilled input matter to copyright? Legally, under current doctrine, it should not matter: effort is irrelevant so long as the work is original expression. However, one can argue that this traditional view might need to be revisited in an era of gAI. If one can generate a new painting style by just thinking about it and having a gAI render it, the incentive of copyright to encourage creation by granting exclusivity is arguably redundant; the creation required little investment of time or resources. Jonathan Baker (2020) has argued that while BCI-generated expressions might technically satisfy the letter of the Copyright Act’s fixation and originality require- ments, they should not be deemed copyrightable unless an “effort requirement” is introduced by the U.S. Congress to ensure the system remains within its utilitarian bounds. Completely effortless creations, particularly direct B2A output, fall outside the constitutional rationale of promoting progress, since protection for such works does not stimulate greater creative effort, the creation would have occurred with or without the prospect of exclusive rights. This suggests that the return of a modest “sweat of the brow” element, where the author is editing the noise out of an ima- ginative thought, and where he or she declares the thought complete, is welcome in copyright doctrine (Baker, 2020). In other words, the author is creating a compilation using selection, coordination and arrangement. 15 History is replete with labour-saving inventions in art, and each time there were fears of devaluing human creativity. Photography in the 19th century was derided by some as a mechanical process lacking the “soul” of painting, yet the law did come to protect photographs once it was accepted that choices of framing, lighting, etc., were 14  Feist Publications, Inc. v. Rural Telephone Service Co. , 499 U.S. 340, 352–54 (1991). 15  Id .