Victor Kaluzhski, head of the CLS IP group, spoke about protection standards in the era of AI

The head of the CLS Intellectual Property group gave a presentation on the conflicts between artificial intelligence and copyright at an event of the International Chamber of Commerce – ICC Russia.

The head of the CLS Intellectual Property group gave a presentation on the conflicts between artificial intelligence and copyright at an event of the International Chamber of Commerce – ICC Russia.
The topic of Victor's speech was formulated as "Artificial intelligence, copyright and ‘confusing similarity.’" The presentation focused on the need to review approaches to the protection of intellectual property against the background of the active introduction of artificial intelligence technologies. The focus was on a problem that is increasingly emerging in court practice: how to prove copyright infringement if the content is not copied verbatim, but reproduces the essence, structure and meaning of the original.

Victor Kaluzhski, an expert in the field of artificial intelligence and intellectual property, noted that modern AI services have learned to preserve the composition and meanings without literally copying the work. At the same time, since the end user is a human, the results of AI creativity can be perceived as original, which, in turn, makes the current copyright toolkit insufficiently effective.

The key point of the presentation was that new tools should be developed and implemented to protect copyright holders from AI processing.

"It is worth considering the creation of a new standard of proof, similar to the standard of ‘confusing similarity’ used in regard to trademarks. This will allow courts to evaluate not the literal match of the text or image, but the overall impression that occurs when the content is perceived," said Victor Kaluzhski.

In support of his position, the CLS expert cited the high-profile "Case of a copied reel" (No.A41-101804/2023). The defendant copied the text and structure of the plaintiff's video titled "5 things to do after paying off the mortgage," denying the violation, as he reproduced, in his opinion, publicly available information. However, the court sided with the plaintiff: a complete copy of the text work, the sequence and structure of the video, rather than of individual words, was established. The court recovered from the defendant compensation in the amount of 300,000 rubles. This case clearly demonstrates that even with partial copying of essential elements of a work, a violation can be established, but in the context of the rapid development of AI, the existing legal mechanisms become insufficient.

Victor Kaluzhski also turned to international experience, analyzing the doctrine of "Substantial Similarity" in US law, in particular, the precedent of Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp. (1977), where the court pointed out the need to evaluate the overall image and emotional impression, and not mechanically "dissect" characters into details. The CLS expert paid particular attention to the position of the U.S. Copyright Office, which notes that the commercial use of protected works to create AI content that competes with the originals in existing markets goes beyond fair use. Courts are already making record of violations when AI output "replaces the market" for the original work.

"I believe that Russian judicial practice is in urgent need of a new standard, where the perception of content by ordinary consumers will be at the forefront. The proposed standard, akin to ‘confusing similarity,’ will effectively combat the unfair use of AI and protect the interests of authors and copyright holders in the digital age," said Victor Kaluzhski.

In addition to his presentation on copyright protection, Victor drew the audience's attention to consumer fatigue from marketing AI content: the expert referred to a recent study by i-Media, where 46% of Russians surveyed indicated that AI-generated creatives will become a negative factor when making a decision to buy a product. The expert stressed that one of the factors of this attitude is the low quality of AI creations. At the same time, there are also examples when mistakes in creations lead to successful cases: "It is worthwhile to note the recent case of the Zenit club, which successfully made a play of the AI error by releasing a limited series with a ‘unique’ AI design," Victor Kaluzhski pointed out.

The presentation ended with the conclusion that the use of AI creations is an unavoidable part of marketing development, and how this technology will be applied is important.

Victor Kaluzhski, head of the CLS IP group, spoke about protection standards in the era of AI

The head of the CLS Intellectual Property group gave a presentation on the conflicts between artificial intelligence and copyright at an event of the International Chamber of Commerce – ICC Russia.

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