Re: [SUBMISSION] AI-MIT License 1 .0 — permissive license for AI-generated code

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Hi,

I agree that this mailing list often reflects a US-law framing, and I also
agree that differences across jurisdictions matter.

Even so, my own view is that, in practical terms, the treatment of
AI-generated code may not differ all that dramatically across many major
jurisdictions, including the US, the EU, and Japan. The doctrinal routes
may differ, but the basic result is often similar: copyright, if any,
attaches to the human creative contribution.
The UK may be a special case because of CDPA 9(3), and China may prove more
willing to recognize copyright in AI-generated works.
But I do not think most jurisdictions are moving toward recognizing
copyright in fully autonomous AI-generated code as such.

If that is broadly right, then the practical consequence is not that
copyright licensing suddenly stops working. Even if a software tool were
mostly AI-generated, the license would still operate with respect to the
remaining human-authored and copyrightable portions. The main difference
across jurisdictions would be the proportion of the work to which copyright
attaches, rather than a fundamental change in the overall licensing
structure.

That is why I am cautious about proposals like AI-MIT/AIAL.
A license can govern whatever rights exist, but it should not try to
predetermine, in the license text itself, the legal status of AI-generated
portions under different national copyright laws, and then attach special
notice obligations or other conditions on top of that.

That, to me, is where the real risk lies.

Best,
Shuji

2026/3/18 20:38 Andrew Katz <[email protected]>:

> Hi Bruce
>
>
> On 17 Mar 2026, at 19:38, Bruce Perens via License-discuss <
> [email protected]> wrote:
>
> This is why I started deprecating Open Hardware licenses. Schematics are
> not currently copyrightable, and what if they were? Perhaps Horowitz and
> Hill's "Art of Electronics" textbook would be collecting royalties from
> every electronic product worldwide.
>
> Bruce Perens K6BP
>
>
> You raise a very good point, and I have a few observations:
>
> 1. (Not surprisingly) this list has a bias towards US copyright law, but
> it=E2=80=99s worth pointing out that the scope of copyrightability (and s=
imilar IP
> rights) varies significantly from jurisdiction to jurisdiction. In the UK=
,
> for example, computer-generated works are explicitly given copyright
> protection (s9(3) CDPA 1988 as amended [1]). We also have database right
> (as they do in the EU). Since open source licences are used worldwide, it=
=E2=80=99s
> sensible to take a global view where possible.
>
> 2. So far as schematics are concerned, they could *potentially*, if
> complex enough, be regarded as a database of the nodes (although I admit
> it=E2=80=99s difficult to see how this does square with some of the requi=
rements
> for database right protection in the UK and EU), but, if hand-drawn, they
> would almost certainly under UK law, be regarded as an artistic work, and
> they could, therefore, if machine generated, be regarded as a computer
> generated work. (Of course, it may be possible to remove the expressive
> element from the schematics, but there=E2=80=99s currently quite a lot of=
 tension
> in UK copyright law around the idea/expression distinction. This partiall=
y
> arises from a difficulty in reconciling s9(3) and EU copyright law which
> requires that the work is the =E2=80=9Cauthor=E2=80=99s own intellectual =
creation=E2=80=9D [2]. EU
> Copyright law still underpins UK copyright law, despite the fiasco of
> Brexit.
>
> This was a major concern when we drafted the CERN OHL because we didn=E2=
=80=99t
> want the licence to be seen as trying to exert any control over the use o=
f
> non-copyright (or other wise non-IP-affected) materials. As it happens, I
> think we could be more explicit about this point in the FAQs and rational=
e
> applicable to the CERN-OHL, and I may propose some amendments accordingly=
.
> (On re-reading, I spotted one assumption we made about enforcement of GPL
> by copyright holders only,  which may not be universally correct any more=
,
> so that needs addressing).
>
> 3. I=E2=80=99m deeply concerned (and I think this echoes your concerns) t=
hat
> acting as if IP rights exist, when they don=E2=80=99t, can be dangerous. =
After a
> while, the courts (and even legislators) can rely on this =E2=80=9Ccustom=
 and
> practice=E2=80=9D to justify the creation of intellectual property rights=
 out of
> thin air, or to codify rights which never existed in the first place.
> (We=E2=80=99ve seen this happen to TV formats, for example). I have also =
seen some
> attempts by people and organisations to establish a copyright norm which
> would beneficial to them by publishing papers making certain assumptions.=
 I
> therefore think that we should be extremely wary of setting licensing nor=
ms
> around AI-generated code, when the underlying ip rights themselves lack
> clarity.
>
> Best
>
>
> Andrew
>
> Andrew Katz
>
>
> [1] https://www.legislation.gov.uk/ukpga/1988/48/section/9
> [2]
> https://en.wikipedia.org/wiki/Infopaq_International_A/S_v_Danske_Dagblade=
s_Forening
>
>
> _______________________________________________
> The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Official statements by t=
he
> Open Source Initiative will be sent from an opensource.org email address.
>
> License-discuss mailing list
> [email protected]
>
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.openso=
urce.org
>


--=20
Shuji Sado
Chairman, Open Source Group Japan
https://opensource.jp/
English blog: https://shujisado.org/
Japanese blog: https://shujisado.com/

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<div dir=3D"ltr"><div dir=3D"ltr">Hi,<br><br>I agree that this mailing list=
 often reflects a US-law framing, and I also agree that differences across =
jurisdictions matter.<br><br>Even so, my own view is that, in practical ter=
ms, the treatment of AI-generated code may not differ all that dramatically=
 across many major jurisdictions, including the US, the EU, and Japan. The =
doctrinal routes may differ, but the basic result is often similar: copyrig=
ht, if any, attaches to the human creative contribution.<br>The UK may be a=
 special case because of CDPA 9(3), and China may prove more willing to rec=
ognize copyright in AI-generated works. <br>But I do not think most jurisdi=
ctions are moving toward recognizing copyright in fully autonomous AI-gener=
ated code as such.<br><br>If that is broadly right, then the practical cons=
equence is not that copyright licensing suddenly stops working. Even if a s=
oftware tool were mostly AI-generated, the license would still operate with=
 respect to the remaining human-authored and copyrightable portions. The ma=
in difference across jurisdictions would be the proportion of the work to w=
hich copyright attaches, rather than a fundamental change in the overall li=
censing structure.<br><br>That is why I am cautious about proposals like AI=
-MIT/AIAL. <br>A license can govern whatever rights exist, but it should no=
t try to predetermine, in the license text itself, the legal status of AI-g=
enerated portions under different national copyright laws, and then attach =
special notice obligations or other conditions on top of that.<br><br>That,=
 to me, is where the real risk lies.<br><br>Best,<br>Shuji</div><br><div cl=
ass=3D"gmail_quote gmail_quote_container"><div dir=3D"ltr" class=3D"gmail_a=
ttr">2026/3/18 20:38 Andrew Katz &lt;<a href=3D"mailto:[email protected]=
om">[email protected]</a>&gt;:<br></div><blockquote class=3D"gmail_quo=
te" style=3D"margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204=
);padding-left:1ex"><div>Hi Bruce<div><br>
</div>
<div><br><blockquote type=3D"cite"><div>On 17 Mar 2026, at 19:38, Bruce Per=
ens via License-discuss &lt;<a href=3D"mailto:[email protected]=
rce.org" target=3D"_blank">[email protected]</a>&gt; wro=
te:</div><br><div><div dir=3D"auto"><div>This is why I started deprecating =
Open Hardware licenses. Schematics are not currently copyrightable, and wha=
t if they were? Perhaps Horowitz and Hill&#39;s &quot;Art of Electronics&qu=
ot; textbook would be collecting royalties from every electronic product wo=
rldwide.=C2=A0</div><div><br></div><div><div dir=3D"ltr"><div dir=3D"ltr"><=
div>Bruce Perens K6BP</div></div></div></div></div><br></div></blockquote><=
/div><br><div>You raise a very good point, and I have a few observations:</=
div><div><br></div><div>1. (Not surprisingly) this list has a bias towards =
US copyright law, but it=E2=80=99s worth pointing out that the scope of cop=
yrightability (and similar IP rights) varies significantly from jurisdictio=
n to jurisdiction. In the UK, for example, computer-generated works are exp=
licitly given copyright protection (s9(3) CDPA 1988 as amended [1]). We als=
o have database right (as they do in the EU). Since open source licences ar=
e used worldwide, it=E2=80=99s sensible to take a global view where possibl=
e.=C2=A0</div><div><br></div><div>2. So far as schematics are concerned, th=
ey could *potentially*, if complex enough, be regarded as a database of the=
 nodes (although I admit it=E2=80=99s difficult to see how this does square=
 with some of the requirements for database right protection in the UK and =
EU), but, if hand-drawn, they would almost certainly under UK law, be regar=
ded as an artistic work, and they could, therefore, if machine generated, b=
e regarded as a computer generated work. (Of course, it may be possible to =
remove the expressive element from the schematics, but there=E2=80=99s curr=
ently quite a lot of tension in UK copyright law around the idea/expression=
 distinction. This partially arises from a difficulty in reconciling s9(3) =
and EU copyright law which requires that the work is the =E2=80=9Cauthor=E2=
=80=99s own intellectual creation=E2=80=9D [2]. EU Copyright law still unde=
rpins UK copyright law, despite the fiasco of Brexit.</div><div><br></div><=
div>This was a major concern when we drafted the CERN OHL because we didn=
=E2=80=99t want the licence to be seen as trying to exert any control over =
the use of non-copyright (or other wise non-IP-affected) materials. As it h=
appens, I think we could be more explicit about this point in the FAQs and =
rationale applicable to the CERN-OHL, and I may propose some amendments acc=
ordingly. (On re-reading, I spotted one assumption we made about enforcemen=
t of GPL by copyright holders only, =C2=A0which may not be universally corr=
ect any more, so that needs addressing).=C2=A0</div><div><br></div><div>3. =
I=E2=80=99m deeply concerned (and I think this echoes your concerns) that a=
cting as if IP rights exist, when they don=E2=80=99t, can be dangerous. Aft=
er a while, the courts (and even legislators) can rely on this =E2=80=9Ccus=
tom and practice=E2=80=9D to justify the creation of intellectual property =
rights out of thin air, or to codify rights which never existed in the firs=
t place. (We=E2=80=99ve seen this happen to TV formats, for example). I hav=
e also seen some attempts by people and organisations to establish a copyri=
ght norm which would beneficial to them by publishing papers making certain=
 assumptions. I therefore think that we should be extremely wary of setting=
 licensing norms around AI-generated code, when the underlying ip rights th=
emselves lack clarity.</div><div><br></div><div>Best</div><div><br></div><d=
iv><br></div><div>Andrew</div><div><br></div><div>Andrew Katz</div><div><br=
></div><div><br></div><div>[1]=C2=A0<a href=3D"https://www.legislation.gov.=
uk/ukpga/1988/48/section/9" target=3D"_blank">https://www.legislation.gov.u=
k/ukpga/1988/48/section/9</a></div><div>[2]=C2=A0<a href=3D"https://en.wiki=
pedia.org/wiki/Infopaq_International_A/S_v_Danske_Dagblades_Forening" targe=
t=3D"_blank">https://en.wikipedia.org/wiki/Infopaq_International_A/S_v_Dans=
ke_Dagblades_Forening</a></div><div><br></div><div><br></div></div>________=
_______________________________________<br>
The opinions expressed in this email are those of the sender and not necess=
arily those of the Open Source Initiative. Official statements by the Open =
Source Initiative will be sent from an <a href=3D"http://opensource.org" re=
l=3D"noreferrer" target=3D"_blank">opensource.org</a> email address.<br>
<br>
License-discuss mailing list<br>
<a href=3D"mailto:[email protected]" target=3D"_blank">L=
[email protected]</a><br>
<a href=3D"http://lists.opensource.org/mailman/listinfo/license-discuss_lis=
ts.opensource.org" rel=3D"noreferrer" target=3D"_blank">http://lists.openso=
urce.org/mailman/listinfo/license-discuss_lists.opensource.org</a><br>
</blockquote></div><div><br clear=3D"all"></div><div><br></div><span class=
=3D"gmail_signature_prefix">-- </span><br><div dir=3D"ltr" class=3D"gmail_s=
ignature"><div dir=3D"ltr"><div>Shuji Sado</div><div>Chairman, Open Source =
Group Japan<br><a href=3D"https://opensource.jp/" target=3D"_blank">https:/=
/opensource.jp/</a><br>English blog: <a href=3D"https://shujisado.org/" tar=
get=3D"_blank">https://shujisado.org/</a></div><div>Japanese blog:=C2=A0<a =
href=3D"https://shujisado.com/" target=3D"_blank">https://shujisado.com/</a=
></div><div><br></div></div></div></div>

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