Ownership of GenAI Output Under Property and Intellectual Property Law

Abstract Generative artificial intelligence or GenAI systems can produce massive amounts of digital output such as images, text, artworks, music and videos. As this output can be valuable, the question arises who owns GenAI output from both a property and intellectual property law perspective. Multiple stakeholders, such as developers and users of GenAI systems, are involved in the creation of GenAI output. The question of ownership of GenAI output therefore brings into focus multiple possibly competing exclusive claims. The ownership question from a property law point of view has not yet received extensive attention in legal scholarship. This article aims to fill that gap by analysing whether GenAI output can be seen as fruits under private law which automatically accede to the person in whom the right to fructus is vested. A developer who owns a GenAI system would then also own all output that these systems can produce. This presupposes an analysis of whether GenAI systems legally qualify as goods under property law which can be subject to ownership rights. An in-depth analysis of the ratio and origins of the traditional concept of fruits has shown that GenAI output cannot be qualified as fruits in the jurisdictions of Belgium, France and the Netherlands. However, the recurrent monetary income from licensing the use of GenAI systems to third parties such as end users can be qualified as civil fruits in at least Belgium and France. To ensure a comprehensive answer to the question of who owns GenAI output, it has consequently been examined whether seemingly creative GenAI output can qualify as an original copyrightable work based on EU copyright law rationales. It has been argued that copyright law does not extend to GenAI output as such when there is insufficient human control over the expressive elements in that output.