Dr. Kateryna Militsyna

Contributions to Collected Editions, Commentaries, Handbooks and Encyclopaedias

Legal Framework for Output Based on Artificial Intelligence: Ukraine's Place on the Global Search Path, in: Heiko Richter (ed.), Competition and Intellectual Property Law in Ukraine (MPI Studies on Intellectual Property and Competition Law, 31), Springer, Berlin; Heidelberg 2023, 559 - 582. DOI

• This chapter outlines the Ukrainian discussion on providing a legal framework for output based on artificial intelligence (AI) with a view to identifying its place and embedding it in the global debate. To this end, the author briefly sets out a common theoretical basis together with practical insights of copyrightability requirements under Ukrainian copyright law and then proceeds to examine output based on AI against them. This assessment reveals the particularities of scholarly approaches to treating such output in Ukraine and other jurisdictions. While the threshold of human involvement sufficient for a work to obtain copyright protection is yet to be clarified, the Ukrainian academic sector generally considers that Ukrainian copyright law does not protect a considerable part of output based on AI. Further, the more sophisticated AI systems in creative industries will become, the more output based on AI will be non-copyrightable. Under these circumstances, Ukrainian scholarly circles have actively embarked on a search for a legal framework for such output. The chapter offers an overview of ideas put forward in this regard and puts them in an international context. Particular attention is paid to the initiative on introducing a new sui generis right for non-original computer-generated objects as the only proposal that has so far made its way to the legislative initiative level. By shedding light on the Ukrainian ideas, the chapter shows the way for future considerations and perspectives.

Journal Articles

Can Copyright Law Benefit from the Marking Requirement of the AI Act?, IIC 56, 9 (2025), 1734 - 1751. DOI

• Advancements in generative artificial intelligence (AI) have raised significant challenges for copyright law. These include the issue of distinguishing between copyrightable and non-copyrightable AI-based output and the risk of copyfraud. One potential solution that might be envisaged in this regard is to subject non-copyrightable AI-based output to a transparency obligation. While these questions remain a topic of debate within copyright law, an answer may have already crystallised beyond its boundaries. In this vein, the article attempts to elucidate whether copyright law, in its quest to address the complexities at hand, can benefit from the marking requirement under Art. 50(2) AI Act. To this end, the article provides an overview of this provision, explores the technical and legal challenges associated with it, and analyses its prospects for copyright law. The article concludes that, despite its appeal, Art. 50(2) AI Act is unlikely to constitute a solution for differentiating between copyrightable and non-copyrightable AI-based output and combating copyfraud, and points to other approaches that are being discussed in this context.

Can Copyright Law Benefit From the Marking Requirement of the AI Act?, Kluwer Copyright Blog 2025.

• https://legalblogs.wolterskluwer.com/copyright-blog/can-copyright-law-benefit-from-the-marking-requirement-of-the-ai-act/
• Also published in: IIC 56, 9 (2025), 1734 - 1751

On the Carrot and the Stick That Unfair Competition Law Can Offer to AI-Based Work-Like Output, GRUR Int 74, 9 (2025), 834 - 844. DOI

• Output based on artificial intelligence (AI) has been the subject of animated debate in recent years. This article focuses on one facet of these discussions, namely the search for a legal framework for AI-based work-like output. Amid ongoing debates over whether copyright law or alternative (IP) regimes should reward or incentivise AI-based work-like output, it approaches the issue of a legal framework from the perspective of addressing the risks and challenges associated with such outcomes. Rather than advocating changes to current frameworks or the introduction of new ones, the article explores the prospects offered by existing law. In this vein, it turns its attention to the seemingly overlooked or underexplored possibility of leveraging the potential of unfair competition law, regarded here as encompassing both business-to-business and business-to-consumer commercial relations. The article traces the reasoning behind considering unfair competition law for AI-based work-like outcomes and provides a brief overview of its general characteristics, alongside the perspectives and challenges of applying it to such outcomes. It then moves on to examine protection against slavish imitation as a ‘carrot’ and provisions on misleading practices as a ‘stick’ for AI-based work-like output. The article concludes that, with caution and careful assessment of compliance with the requirements, these unfair competition law frameworks can be applied to such output. However, it also acknowledges that some cases will fall outside the scope of these frameworks. This suggests that addressing the challenges posed by AI-based work-like output may require the support of other solutions.

Human Creative Contribution to AI-Based Output – One Just Can(’t) Get Enough, GRUR Int 72, 10 (2023), 939 - 949. DOI

• The article attempts to clarify the issue of the copyrightability of AI-based output by streamlining the assessment of human creative contribution to the creation process assisted by generative AI systems. It starts with briefly outlining the state of the art of modern generative AI systems contributing to a better understanding of AI. Then the article presents a five-part test to distinguish between sufficient and insufficient human creative participation and contemplates the following authorship scenarios: sole authorship of AI designers or users; their joint authorship; and non-authorship. The article proceeds with applying the test to output produced using Midjourney, a generative AI tool. It concludes that in many cases of using AI to create output human creative participation remains sufficient for copyright protection eligibility. However, there are also developments and circumstances that drive the increase in ‘authorless’ AI-based output. Moreover, depending on the specific circumstances, using even the same AI system may lead to different test results.

Перспективи Об’єктів, Створених на Основі Штучного Інтелекту, з Позиції Авторського Права Китайської Народної Республіки (Prospects of Output Based on Artificial Intelligence in Terms of Copyright Law of the People’s Republic of China), Актуальні Проблеми Держави і Права (Current Problems of State and Law) 95 (2022), 27 - 34.

• The article attempts to identify prospects of output based on artificial intelligence in terms of copyright law of the People’s Republic of China (PRC). To achieve this goal, it outlines the key historical factors that have influenced the modern copyright law of the PRC as well as analyses the relevant case law and amendments introduced in the Copyright Law of the People’s Republic of China as a result of the copyright reform of 2020.
• https://doi.org/10.32782/apdp.v95.2022.4

Еволюція Критерію Оригінальності в Авторському Праві України, Актуальні Проблеми Держави і Права 96 (2022), 56 - 62.

• The article attempts to explore the evolution of the criterion of originality in Ukrainian copyright law. To achieve this goal, it outlines the historical background. The article proceeds by examining the criterion of originality in current Ukrainian copyright law. For this purpose, it analyses legislation, judicial practice and doctrinal sources.
• https://doi.org/10.32782/apdp.v96.2022.6

Legal Personhood for Artificial Intelligence: Pro, Contra, Abstain?, Teisė 122 (2022), 150 - 158. DOI

• This article is about the legal personhood of artificial intelligence as one of the existing options of regulating AI and coping with the challenges arising out of its functioning. It begins with the search for the definition of AI and goes on to consider the arguments against the legal personhood of AI, the options of such a legal personhood, and the factors taken into account in devising the legal personhood of AI. The article ends with our vision of the legal personhood of AI.

Research Papers

Position Statement of the Max Planck Institute of 25 June 2026 on the Future Copyright Framework in Times of Generative AI (Max Planck Institute for Innovation & Competition Research Paper, No. 26-10), 2026, 42 pp., 04.08.2026 (together with Josef Drexl, Gil Dagan). DOI

• The Max Planck Institute responds to the European Commission's Call for Evidence of 13 May 2026 with a focus on necessary adaptions in copyright law in relation to generative artificial intelligence (GenAI). The Institute proposes broadening the scope of protected uses to include two new rights: an AI development right and an AI exploitation right. For the use of protected content in AI development that is aggregated through webscraping, the Institute recommends introducing an exception that enables unrestricted access to content lawfully available on the internet, combined with a right to fair compensation. For other types of content, the Institute supports the principle of voluntary licensing, allowing the rightholders to choose between individual and collective licensing. However, for the making available of AIgenerated content, as a particular form of AI exploitation, the Institute suggests a system of mandatory collective rights management combined with extended collective licensing. In all cases where the licensing approach applies, the Institute proposes protecting authors and performing artists through a residual right to equitable remuneration. The Position Statement also discusses ways to enable the exercise of exceptions in the case of prompting and warns against making the proposed reform applicable to related rights in general.

Further Publications, Press Articles, Interviews

New Ukrainian Law on Copyright and Related Rights, The IPKat 2023 (together with Liubov Maidanyk).

• https://ipkitten.blogspot.com/2023/01/guest-post-new-law-on-copyright-and.html