Creatività vs. originalità: la qualificazione di «opera dell’ingegno» nell’era dell’intelligenza artificiale

In the absence of a legislative definition of «intellectual work», it has so far been possible to tautologically argue that a work is «creative» if and to the extent that it is original, and vice versa, it is «original» if and to the extent that it is creative. With the spread of generative-AI systems, the alleged coincidence between the notions of creativity and originality is gradually fading away. When intellectual works are not created by author-natural persons, as in the case where they are generated by autonomous AI systems, the very process of bringing such works into existence changes significantly and, with it, also the possibility of qualifying the artifacts thus generated as creative, other than possibly original. The essay, after an overview of the relevant existing legislation and the current technological context, aims to propose some reflections on the evolution of the «creative» process in the era of AI and on the implications that the possible acknowledgement of a distinction between the concepts of creativity and originality might have in the current regulatory framework.