Human Agency at the Core: Reassessing Originality and Expression in EU Copyright Law in the Age of Generative AI

This article argues that the challenges raised by generative AI should be approached not by asking where AI belongs in EU copyright law, but by clarifying the place of the human subject within it. The current debates about AI‑assisted and AI‑generated works echo earlier technological disruptions, most notably photography, which similarly forced copyright law to define what counts as meaningful human creative input. Drawing on this historical parallel, the article shows that EU copyright doctrine has consistently centred the human author through the requirements of free and creative choices, the imprint of personality, and an expression that is identifiable to human perception.

Recent CJEU case law reinforces this trajectory and demonstrates how originality and expression could be increasingly tied to human subjectivity rather than to the tools used for creation of work. This human‑centred framework helps explain why certain new AI‑enabled outputs, such as synthetic voices or digital avatars, may fall outside copyright protection and be absorbed by other legal regimes instead. The article concludes that EU copyright law is already equipped to integrate generative AI as a tool, as long as the system continues to protect the specifically human qualities that give creative works their legal significance.