If it isn't a copyrighted work, can I do whatever I want with it?

Many ebooks and LinkedIn posts have already been written about how works created by AI are not copyrighted works. They are therefore not protected by copyright. Does that mean that everything not protected by copyright is freely available?

For example, an image generated by AI? An expert report? General terms and conditions?

Works that are not protected by copyright may be protected under Section 2976 of the Civil Code by the provisions on unfair competition. And here it comes: Unfair competition is conduct in business dealings that conflicts with good morals of competition and is capable of causing harm to other competitors or to customers. This sentence is fairly complicated - mainly because not one of the terms it contains is what it appears to be.

Ms Kristyna Kashtanová used Midjourney to create the comic book Zarya of the Dawn. However, she obtained copyright only to the comic as a whole, not to the individual images. Those, according to the office's decision, are not copyrighted works. And there we have it.

By her own account, Ms Kashtanová worked on the comic for more than a year and it took her a great deal of effort. She had a clear idea of how the images should look, and she kept changing the results the AI offered her with more and more prompts until she was satisfied.

Let's imagine that all of this took place in the Czech Republic. If I now took the individual images, arranged them differently, gave them a different story and published a different comic in terms of content, I would not be infringing copyright.

But would that be all right? No, it wouldn't. I would be competing with Ms Kashtanová, and it would actually cost me hardly anything. I would essentially be profiting from what she spent a year creating. And in this particular case I would also be nicely free-riding on the reputation of her comic.

I would be acting in unfair competition (that's a mouthful 😊) and, once I was caught, I would have to stop such conduct and remove the unlawful situation I had caused. I would also have to compensate Ms Kashtanová for material damage and possibly non-material harm as well. And, of course, surrender any unjust enrichment. And pay the costs of the court proceedings.

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