Neurotecnología e Inteligencia Artificial: Fronteras legales y de gobernanza

133 creative choices by the photographer. 16 In the case of gAI, the argument would be that humans still contribute creativity, just in new forms, e.g. in designing a prompt, selecting among gAI outputs, or, in BCI cases, in simply having the imaginative thought that the gAI helps manifest. A work containing AI-generated elements can be protected if a human selects or arranges those elements in a sufficiently creative way (Lee, 2024). Authorship may lie in the selection and arrangement, a traditional basis for copyright, 17 even if the raw elements came from a machine. Thus, a hu- man-gAI collaborative process might yield an overall work that is original due to the human’s creative decisions. Based on this principle, the USCO registered “A Single Piece of American Cheese,” 18 as the first AI-assisted U.S. work on January 30, 2025. However, determining the line between gAI-assistance and AI generation is cha- llenging. If gAI simply obeys a detailed human command to generate a very specific image, for example; “draw exactly this scene in this style,” one could liken the gAI to an apprentice or a mere technical instrument, with the human as the mastermind. But if gAI is given a vague prompt and produces something highly detailed that surprises even the user, the human’s contribution might be too abstract to qualify as “authorship” of the specific expression. Going forward, legal standards may need to be clarified: how much creative control or influence must a human exert over an AI-generated product to be considered author? Some have proposed a quantitative approach; a percentage of creation vs. generation (Friedmann, 2024). An alternative would be a qualitative test; did a person determine the expressive elements of the work? If so, the person is the author; if the gAI determined them in an unpredictable way, then the gAI portions are not protected. The USCO explicitly highlighted the issue of gAI unpredictability; the same prompt can yield different outputs, as a sign that the human user is not actually crafting the specific expression, the algorithm is. As long as gAI remains a stochastic process, this unpredictability test will likely be used to deny full authorship to the prompter. As gAI evolves, if users gain more fine-grained control, real-time BCI adjustments of gAI outputs, truly painting with one’s mind, the human might regain creative control. Artistic communities debate about whether using gAI diminishes the artist’s au- thenticity. Copyright law could indirectly influence this debate through doctrines like moral rights, e.g., a right of integrity might be implicated if a gAI significantly alters a human authored work without permission, or a right of attribution might become complex if multiple gAI tools contributed to a work. The intersection of BCI, gAI, art and IP may bring about new kinds of rights altogether. Is the pattern of one’s brainwaves a protectable aspect of one’s identity 16  Burrow-Giles Lithographic Co. v. Sarony , 111 U.S. 53 (1884). 17  Id . 18 USCO registered “A Single Piece of American Cheese,” Registration record VAu001543942 (2024) Jan. 30, 2025, https://publicrecords.copyright.gov/detailed-record/37990563. The entanglement of BCI, gAI, ART and IP