What copyright covers, and what it never did

The distinction everything rests on

Before any argument about AI, one principle has to be in place, because almost every confused claim in this area comes from missing it.

Copyright protects expression, not ideas. The particular words, the particular image, the particular arrangement. Not the idea, the method, the fact, the plot device or the style. If you read a novel and write your own with the same premise in your own words, you have not infringed. If you copy three paragraphs, you may have.

This is not an oversight. It is deliberate and load-bearing, because a system that let people own ideas would stop the production of new work. It is also why AI copyright arguments are so slippery: a model that has learned regularities has learned something more like an idea, and a model that reproduces a passage verbatim has copied expression, and the same system can do both.

Four more principles follow.

Originality is required, and the bar is low. Some independent creative choice. A photograph of a document is generally not original; the arrangement of a photobook is.

Facts are not protected. A table of populations is not owned by whoever compiled it, although the selection and arrangement of a database might be, and some jurisdictions have separate database rights.

Style is not protected. This is the one that most upsets artists and it is long-settled. You may paint in someone's manner and say so. What you may not do is copy their specific works, use their name in a way that misleads about endorsement, or in some jurisdictions imitate their identity commercially — but those are trade mark, passing off and personality rights, not copyright.

Characters can be protected, where sufficiently delineated. This is why generating an image of a well-known superhero is a different risk from generating an image in a comic-book style.

Exceptions differ by country, more than people expect

The United States has fair use: an open-ended four-factor test — purpose and character including whether the use is transformative, the nature of the work, the amount used, and the effect on the market for the original. A judge weighs them. It is flexible and unpredictable.

The United Kingdom, India and many Commonwealth systems have fair dealing, which is not the same thing. It applies only to enumerated purposes — research and private study, criticism and review, reporting current events, and in India a specific list in Section 52 of the Copyright Act. If your use is not on the list, flexibility does not help you. This is a much narrower door, and it matters enormously for the training-data question in those countries.

The EU has specific exceptions, including the text and data mining provisions of the 2019 Digital Single Market Directive.

So a practice can be lawful in one country and not in another, on the same facts, and the international-treaty framework does not resolve it.

Moral rights

One more concept that Anglo-American discussion tends to skip. Many systems, including India, France and Germany, give authors moral rights — attribution and integrity — which are separate from economic rights, often cannot be assigned, and sometimes survive the transfer of copyright. India's Section 57 gives an author the right to claim authorship and to restrain distortion or mutilation prejudicial to honour or reputation.

This is quietly relevant to AI. An author may retain a claim about attribution and distortion even where they have sold every economic right, and moral rights are among the reasons European and Indian discussions of this take a different shape from American ones.

Two practical rules

From all of this, two things generalise regardless of the litigation.

Reproducing a recognisable protected work is risky, however it was produced. A model generating a near-copy of a famous photograph or a known character puts you in the ordinary position of someone distributing a copy. "An AI made it" is not a defence, in the same way that "my photocopier made it" is not.

Copying a style is generally lawful and can still be actionable on other grounds. If you imitate a living artist's manner and market it using their name, the legal exposure comes from trade mark, passing off, consumer protection or personality rights, not from copyright — which is a distinction worth knowing before you commission something.

Nothing here is legal advice, and the exceptions in your country may differ from the sketch above. What this lesson buys you is the vocabulary to ask a lawyer a precise question rather than a general one.