Abstract This article examines whether, and with what ramifications, a future in which generative artificial intelligence becomes a new ‘layer of abstraction’ in software development could make copyright protection of computer programs under Directive 2009/24/EC (Software Directive) practically unreliable. Drawing on European Union and national case law, it argues that concepts used in the Software Directive, in particular the notion of preparatory design materials, would not preserve copyright protection for software produced through highly autonomous systems that translate natural-language requirements into code with limited human influence on the final expression. It then shifts to measures likely to fill the gap if that protection wanes. Using a map of how EU software copyright currently structures market relationships, this article explores likely substitutes, including cloud-based technical control, contractual measures, and trade secret protection. It assesses how these tools could reshape relationships between developers, customers, and competitors, noting that the effective loss of mandatory copyright exceptions could expose customers and potential competitors to new risks by relocating the governance of software markets to private ordering and selective regulatory intervention. Overall, if software copyright erodes, customers and potential competitors may stand to lose more than developers.
Bohdan Widła (Tue,) studied this question.