Beyond the Binary

The rapid integration of generative artificial intelligence into creative processes has reignited complex debates in copyright law. In the European Union, some foundational issues are increasingly settled: the input stage is governed by text and data mining exceptions under the DSM Directive, while fully autonomous AI outputs remain outside copyright protection due to the requirement of human authorship. A more nuanced and unresolved issue concerns AI-assisted creation, where AI serves as a tool within a broader human-led creative process. This paper first outlines the legal framework applicable to AI training and the exclusion of AI-generated works from protection. It then explores the legal and conceptual space of AI-assisted creation, proposing a layered understanding of originality that reflects the cumulative nature of human creative input. Finally, it considers the risk of infringement when AI-generated content closely resembles protected works. The paper concludes that existing copyright principles can address these challenges and guide future judicial developments.