Abstract
In Italy, the relationship between artificial intelligence and copyright is taking clearer shape, thanks to an initial ruling by the Italian Supreme Court and a legislative proposal currently under review by the Chamber of Deputies. Although the Court has not yet ruled definitively, a recent ordinance hinted at a favorable orientation toward recognizing protection when the creative result can be attributed to a human being—even if achieved through the aid of software.At the same time, a legislative proposal containing provisions on artificial intelligence—awaiting final approval—seeks to legally confirm that works generated using AI tools may be protected, provided that they represent the product of human intellectual effort. This article explores the direction in which copyright law is moving in the age of algorithms.
Copyright under Italian law and the Berne Convention
Legal protection for intellectual works does not originate at the national level but is grounded in major international treaties. Among these, the Berne Convention for the protection of literary and artistic works represents the cornerstone of copyright protection at the global level. First signed in 1886 and subsequently revised, the Convention establishes the principle that creative works must be protected in all signatory States from the moment of their creation, regardless of registration or deposit formalities.
In the Italian context, copyright is governed by Law No. 633 of 1941, which, in Article 1, lays down a key principle:
“The works of authorship having a creative character […] shall be protected under this law, regardless of their form or manner of expression.”
But what does “creative character” mean? Under copyright law, creativity does not coincide with the originality of the subject matter itself, but rather with the expressive choices through which that subject takes shape.
For instance, a photograph of a common landscape may be considered creative if the author portrays it with a particular angle, framing, mood, or lighting that gives the image a personal and recognizable dimension.
Therefore, absolute novelty in a technical or inventive sense (as in patent law) is not required, but rather the author’s free and discretionary choices that result in an original representation, whether real or imagined.
This principle is essential in understanding the relationship between creativity and legal protection: without creativity, there is no copyright—even where a finished work exists.
Can artificial intelligence hold copyright?
A work can only be protected by copyright if it represents the expression of a conscious intellectual activity. For this reason, an artificial intelligence system—lacking intent and autonomous decision-making—cannot be considered an author in the legal sense.
The content produced by an algorithm, no matter how complex, does not arise from a creative intention and does not express a subjective vision. This is precisely why legislators—both in Italy and at the European level—do not assign copyright ownership to AI systems.
Protection always depends on the existence of a human subject capable of making expressive choices. Without this element, the essential foundation for protection is absent.
The Italian framework: case law and legislative developments
In Italy, the relationship between artificial intelligence and copyright is taking shape along two paths: judicial interpretation and legislative reform. Although there is no comprehensive legal framework yet, certain trends are becoming increasingly clear.
A first contribution came from the Italian Supreme Court with Order No. 1107/2023, concerning the case “The scent of the night” by architect Chiara Biancheri. The work—a digital composition created using software—was recognized as protectable because it was the result of the author’s personal creative choices, despite the use of automated tools.
The Court emphasized that:
“Creativity cannot be excluded solely because the work consists of simple ideas and notions that fall within the intellectual heritage of individuals experienced in the field; furthermore, creativity is not constituted by the idea itself, but by the form of its expression—its subjectivity—so that the same idea may underlie different works, which are or may be distinct by virtue of the subjective creativity invested by each author, and it is this that matters for protection.”
(Section I, No. 25173 of 28.11.2011; No. 21172 of 13.10.2011; No. 20925 of 27.10.2005)
Although the ruling did not directly and fully address the issue of AI-assisted works, it nonetheless set an important precedent. The Court affirmed that the mere use of software in the creative process is not sufficient to deny copyright protection. Rather, such use requires a more rigorous assessment of the degree of creativity, aimed at verifying whether—and to what extent—the technological tool replaced or absorbed the author’s personal expression.
If the human contribution is found to be predominant, there is no reason to deny recognition of copyright to the person who used AI as a technical aid.
(For further reading: Software and creativity: The Supreme Court on the protectability of digital art – Arlo Canella)
This approach is perfectly aligned with the view adopted by the Beijing Internet Court, which in a recent decision treated AI as a mere creative tool, assigning rights to the human user who employed it knowingly (Li v. Liu, 27 November 2023).
(For further reading: Artificial Intelligence: an “exemplary ruling” from the Beijing Court – Arlo Canella)
Alongside this jurisprudential approach, a legislative proposal is also in progress. On 20 March 2025, the Italian Senate approved a legislative proposal (still pending in the Chamber of Deputies) aimed at adapting national law to the challenges of artificial intelligence, in coordination with the new EU AI Act.
Article 25 of the approved legislative proposal (Copyright protection of works generated with the aid of artificial intelligence) introduces an amendment to Article 1 of the Italian Copyright Law (Law No. 633/1941), providing that: “The works of human authorship having a creative character—falling under literature, music, visual arts, architecture, theatre, and cinematography—shall be protected under this law, even when created with the aid of artificial intelligence tools, provided that they are the result of the author’s intellectual effort, regardless of their form or mode of expression.”
(For further reading: The Italian legislative proposal on AI and the protectability of “artificial reativity”)
This means that AI-generated works are not excluded per se from protection, but protection is conditional upon a significant and identifiable human contribution. The provision does not introduce an automatic entitlement but rather a substantive standard of evaluation. The goal is to encourage a collaborative and responsible use of AI, leaving room for protection only where the human being performs an effectively creative role.
When humans create with AI: the centrality of human creativity
A work generated with the aid of artificial intelligence can be protected by copyright if it reflects a genuine human creative contribution. It is not the tool itself that determines protectability, but the intervention of the author in guiding the process.
Artificial intelligence functions as a technical instrument: it delivers results based on the inputs it receives. Legal protection arises when the user exercises conscious control, gives instructions with expressive intent, makes personal choices, and invests intellectual resources in the process.
The developer of the AI model cannot claim rights over the resulting work: they built the tool but did not participate in its creative application. Copyright, instead, belongs to the person who provided the prompts, refined the outputs, and directed the process according to a personal vision.
The fact that the result was facilitated by an automated system does not, in itself, rule out protection. What matters is the presence of sufficient human creativity to transform the algorithmic output into a work attributable to a person.
The emerging legal framework thus highlights a shared principle: a work generated with AI assistance may be protected only when it can be clearly linked to demonstrable human authorship.
It is not the means used—whether a brush, a camera, or an algorithm—that determines protectability, but rather the creative intervention of the person who uses it. In this light, artificial intelligence is best understood as an advanced tool in service of human creativity, not a substitute for it.
© Canella Camaiora S.t.A. S.r.l. - All rights reserved.
Publication date: 19 June 2025
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Celeste Martinez Di Leo
Praticante avvocato, laureata in Giurisprudenza presso l’Università degli Studi di Pavia e in “Abogacía” presso l’Universidad de Belgrano (Argentina) a pieni voti.