Man or machine? Proof of copyright protectability in the age of artificial intelligence

Through generative AI, humans have lost their natural monopoly on the role of creator. Against this background, the article deals with the question of which rules should be used to decide whether content is a regularly unprotectable AI output or a result of human creativity. To this end, it first looks at the interests involved, which prove to be ambivalent. This leads to the normative principle that, when determining the rules of evidence, an appropriate balance must be struck between the protection of legitimate copyright interests (keyword: lack of evidence) and the avoidance of unjustified legal presumptions. The article then explains that the presumption of authorship or ownership of rights pursuant to Section 10 UrhG does not, contrary to what has been said in the literature, provide a solution to the man-machine problem. Finally, the article shows how the phenomenon of generative AI can be processed on the basis of the general rules of evidence. A distinction is made between different constellations for the assertion of copyright and related rights. The civil proceedings, the warning letter, the notification of an infringement to hosting services, the work notification to collecting societies and the individual license offer are examined.