Artificial Intelligence and Authorship in Copyright Law in Mexico
- glealc8
- Mar 25
- 7 min read
Updated: Apr 5
The advance of generative artificial intelligence has strained traditional legal frameworks on intellectual property. The recently issued isolated thesis IX-CASE-PI-3 of the Federal Court of Administrative Justice[1] states that works generated by AI cannot be considered registrable, as they were not created by a natural person. This interpretation, based on Articles 3 and 12 of the Federal Copyright Law, states that creativity must emanate exclusively from a human being in order for a protected work to be legally recognized.
This position, although legally coherent from a strict reading, could be insufficient in scenarios in which human intervention, even when it does not involve manual execution, does constitute a decisive creative act. The criterion is analyzed below in the light of philosophical and legal reasoning, also exploring how other countries have addressed this dilemma.
Criterion
The criterion under analysis is reproduced below.
IX-CASE-PI-3
COPYRIGHT. WORKS CREATED BY ARTIFICIAL INTELLIGENCE ARE NOT SUBJECT TO PROTECTION UNDER FEDERAL COPYRIGHT LAW. Article 3 of the Federal Copyright Law establishes that protected works are those of original creation that can be disseminated or reproduced in any form or medium; for its part, article 12 of the aforementioned law, designates as author the natural person who has created a literary and artistic work; this is so, because an author is a natural person who creates, expresses and concretely shapes his or her ideas, so that the creation of his or her work will be protected by the relevant legislation. However, artificial intelligence is the technology that allows computers to simulate human intelligence and capabilities in problem solving and with its use the automatic delivery of results and answers to different queries, parameters or guidelines given by the person using it is executed; these results and answers require a prior learning exercise that is done by identifying and relating the elements with which the artificial intelligence was fed and developed. Therefore, even if it is a natural person who provides the guidelines and instructions to the artificial intelligence, the creation is still the product of the execution of the algorithms it uses, generating artificial content. Therefore, in terms of the Federal Copyright Law, a work that is not created by a natural person cannot be registered, because it is expressly stated as such in law because only a natural person is capable of creating an original work (a requirement demanded by law) because human creativity is necessary for such a situation.
Contentious-Administrative Court No. 788/24-EPI-01-2. Ruled by the Specialized Chamber for Intellectual Property Matters of the Federal Court of Administrative Justice, on August 30, 2024, by unanimous vote. Magistrate Instructor: Elizabeth Ortiz Guzmán. Secretary: Dania Karely Espinoza Perea.
The Mexican criterion: a positivist reading of copyright
The criterion in question is based on a clear normative basis: Only natural persons can be considered authors under the Federal Copyright Law. It is based on the fact that AI, by operating through pre-designed algorithms, delivers results that do not come from a direct human creative process, but from a computational synthesis.
The core of the argument can be broken down as follows:
Major premise: Only original works created by a natural person can be protected by copyright.
Minor premise: Works generated by AI are not created by a natural person.
Conclusion: Works generated by AI cannot be protected by copyright.
At first glance, the reasoning is valid and in accordance with the current legal framework; however, the problem lies in the fact that the minor premise — that works generated by AI are not created by a natural person — presupposes a total disconnect between the human act and the final result, which is debatable.
The blind spot of the criterion: Delegated creativity
Although it is true that AI executes algorithms to produce a result, not all execution is mechanical nor are all instructions trivial. There are instructions that involve aesthetic judgments, deliberate selection of styles, elements, narrative or compositional intentions, which are unequivocally human. AI acts as a means of execution, but the original idea of the creation is generated in a human mind that conceptualizes the work and directs the result, in the same way that an architect does not physically lay each brick, but is still the author of the work.
Illustrative example: If a human author introduces an instruction to an AI system such as: “Generate a symphonic piece in late-Romantic style, with a sonata structure, that evokes the nostalgia of 19th-century peasant migration”, it cannot be denied that this instruction contains elements of creativity, intention and narrative that transcend mere technical use.
In such cases, the work can be seen as the product of delegated or extended creativity, in which the tool —AI— acts as a medium, not as an origin.
International perspectives
It is worth reviewing some international precedents to compare this Mexican criterion with what is brewing abroad.
Court decision in the United States
In a case in the USA, Stephen Thaler v. Shira Perlmutter, et al. (civil action number 22-1564) confirms that works generated completely autonomously by artificial intelligence (AI), without human creative intervention, are not copyrightable in the United States.
Stephen Thaler, owner of an AI system called the Creativity Machine, attempted to register an image entitled “A Recent Entrance to Paradise” as a protected work, which was generated entirely by his system without human intervention. Thaler requested that the registration be made in the name of the system as author, and that the copyright be transferred to him as the owner of the system. The US Copyright Office rejected the request on the grounds that the work was not authored by a human being, an essential requirement under US law.
The judge in the case, Beryl A. Howell, concluded that the term “author”, although not expressly defined in the Copyright Act of 1976, has been historically and legally understood as a human being with the capacity to conceive creative ideas, that the Creativity Machine system generated the image “autonomously”, as the plaintiff himself admitted, therefore, there is no copyright that can be transferred or awarded, neither to Thaler nor to anyone else. Its final decision was that work generated autonomously by a computer system, without any human intervention, is not eligible for copyright protection.
US Copyright Office
The criterion of the US Copyright Office, according to the document entitled “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence”, published on March 16, 2023, establishes that copyright protection in the United States requires human authorship. Works generated by artificial intelligence (AI) technologies, without a substantial creative contribution by humans, are not copyrightable. This position is based on the constitutional and legal requirement that the “author” must be a human person.
In this sense, works may be partially registrable if the human selects, organizes or modifies the AI-generated content in a creative way, integrates that content into a larger work that reflects human authorship (for example, an illustrated book with human text and AI-generated art), then only the human-created parts can be protected.
The policy does not prohibit the use of technological tools to create art. What determines registrability is the degree of human creative control over the expressive elements of the result. Thus, programs such as Photoshop used by humans are not on the same level as an autonomous generative AI.
As can be seen, in the United States the criteria for registration of works generated with human intervention depends on the degree of human intervention.
United Kingdom
In the United Kingdom, the Copyright, Designs and Patents Act 1988 states in section 9(3) that when a work is generated by a computer without direct human intervention, the author shall be considered to be “the person who makes the necessary arrangements for the creation of the work”. This approach offers an alternative legal avenue, more functional than essentialist, for attributing authorship.
European Union
The Court of Justice of the European Union, although it has not yet resolved a central case on AI, has insisted that copyright protection requires an “intellectual work” that is the product of free and creative choices on the part of the author, but without requiring specific means. This opens a loophole for considering creations where the human being orchestrates an intelligent system.
Logical analysis and proposal for reinterpretation
Reformulating the initial syllogism from a more nuanced perspective:
Major premise: Original works that are the product of human creative expression are protectable by copyright.
Minor premise: Some works generated with AI contain substantial human creative expression, delegated through complex and deliberate instructions.
Conclusion: Some works generated with AI may be protectable by copyright.
This version, without contradicting the spirit of Article 12, interprets it in accordance with its purpose: to protect human creativity, regardless of the technical means used for its manifestation.
The need for regulatory mitigating factors
It is not a question of ignoring the risks of considering AI as an author, nor of promoting a regime where every AI product is automatically considered protectable. The key lies in the differentiation between mechanical execution and creative direction. A reasonable legal policy should establish criteria for evaluating the degree of human creativity involved, such as:
Level of detail and originality of the instructions.
Ability to reproduce the same result without human intervention.
Existence of subsequent human selection, editing or curation processes.
Thus, mitigating criteria or a scale of “shared authorship” could be proposed when human creativity is central to the process.
Conclusion
The categorical denial of protection to works generated with the help of AI, as argued by the Mexican jurisdictional criterion, is based on a coherent legal logic, but is possibly incomplete in the face of current technological complexity. By categorically excluding all AI-derived products, there is a risk of disregarding genuinely creative human acts, just because they do not follow the traditional model of artistic production.
As international comparison and logical analysis have shown, it is possible — and necessary — to reconfigure the understanding of authorship without abdicating the principles of originality and human creativity. Artificial intelligence does not create, but it can be a channel through which the human imagination is manifested. To deny this possibility is to deny that technique has always been part of art.
__________ Footnote
[1] Singular thesis of the Specialized Chamber in Intellectual Property Matters of the Federal Court of Administrative Justice, published in the December 2025 issue of the magazine. Its text is reproduced in the body of this work.
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