Sui Generis: how AI-generated works are protected in Ukraine and beyond

With the advent of artificial intelligence (AI), traditional copyright law is facing unprecedented challenges. The classical concept of “authorship,” which presumes a significant creative contribution by a human, is not always applicable to outputs generated by AI technologies.

For instance, images, texts, or music created using generative AI systems may lack a clearly identifiable author, or human involvement may be minimal. This creates legal gaps in copyright protection. However, alternative legal frameworks – such as the concept of sui generis – may offer a viable solution. Let’s examine what this concept entails and how it works in practice.

Why this matters

According to Goldman Sachs, AI may contribute up to 7% to global GDP by 2030 – an estimated USD 7 trillion – highlighting the economic significance of AI and the need for effective legal protection of AI-generated content.

In 2022, Ukraine became one of the first countries to address these emerging issues by amending its Law on Copyright and Related Rights. The amendments introduced a new form of legal protection, sui generis – designed to regulate the status of outputs created without human involvement. The revised law entered into force in 2023.

The objective of these changes is to ensure legal protection for outputs that do not meet the traditional criteria for copyright protection.

How does sui generis work in Ukraine?

The term sui generis (Latin for “of its own kind”) refers to a distinct mechanism of legal protection that applies to outputs generated without human input. When a product lacks the human creative input required for copyright eligibility, it may still receive protection under this separate regime.

Under this framework, rights may be granted not only to the person who initiated the creation process but also to others with legal rights to the AI system – such as the developer, licensees, successors, or persons holding the economic rights to the software. This approach is grounded in Article 33 of the Law of Ukraine on Copyright and Related Rights, which defines:

“A non-original object generated by a computer program is an object that differs from existing similar objects and is generated through the operation of a computer program without direct involvement of a natural person.”

“Works created by natural persons using computer technologies are not considered non-original objects generated by a computer program.”

Protection lasts for 25 years, starting from January 1 of the year following the creation of the object. For example, an object created in 2025 would be protected from January 1, 2026, through December 31, 2050. These objects are not considered “works” in the traditional sense and therefore are not eligible for moral rights – only economic rights such as reproduction, distribution, translation, and adaptation.

Requirements for Protection

To qualify for sui generis protection, an AI-generated output must meet several criteria reflecting its technical (rather than creative) nature:

• Novelty: The object must differ from existing works or technical outputs and must not be a copy.
• Automated Generation: The object must result from technical functioning of software, without human-led design or artistic input.
• Lack of Human Creativity: Human involvement is limited to activating the software. The person does not make creative decisions regarding the content or appearance of the output.

Example: Suppose you use a generative system to create an image for advertising based on a text prompt. Later, someone uses your image without permission.

Under traditional copyright law, protecting such an image would be difficult, as it lacks human authorship and thus may not be considered a “work.”

Previously, such AI-generated outputs had no legal protection. Under the sui generis regime, the person who initiated the generation, provided the infrastructure, or funded the project may acquire exclusive rights – such as licensing, transferring rights, prohibiting unauthorized use, or seeking legal remedies, including compensation.

Ukraine is actively developing case law in this area, illustrating that the mechanism can function effectively to protect outputs created without human input.

International approach

While the concept of sui generis is not new in international law, Ukraine is one of the first countries to apply it specifically to AI-generated works. Here’s how other jurisdictions approach the issue:

European Union. The sui generis regime is currently limited to database protection under Directive 96/9/EC. It protects substantial investments in collecting, verifying, or presenting database content, even if it lacks originality. For example, in 2023, approximately 30% of EU companies used databases protected under this regime for big data analytics.

However, there is currently no distinct sui generis protection for AI-generated content (e.g., images, text, or audio), creating legal uncertainty and complicating investment protection in this domain.

United States. Copyright protection in the U.S. requires human authorship. The U.S. Copyright Office consistently maintains that works without substantial human creative input are ineligible for copyright registration. In February 2023, the Office denied protection for images in Kris Kashtanova’s graphic novel Zarya of the Dawn, which were created using the Midjourney AI system. This leaves AI-generated outputs in a legal vacuum – unprotected unless human authorship can be demonstrated.

Conclusion

Ukraine’s sui generis regime is a forward-looking legal tool designed to adapt copyright law to the challenges posed by AI and automation. It does not replace traditional copyright but supplements it, offering protection to outputs that previously lacked legal standing.

By legally recognizing sui generis rights, Ukraine lays the groundwork for the development of robust AI content markets – free from legal uncertainty and better equipped to safeguard commercial investments.