In my second post I looked at the insidious influence of cognitive debt and outlined some of its ramifications. Traditional copyright has always assumed human authorship, which necessarily involves personal memory and cognitive investment in creative expression. On the other hand, AI-assisted creation challenges this whole notion, by enabling shared authorship where memory gives way to design and intent. It envisages a construct where the human acts more as a conductor rather than composer, and cognitive investment shifts from word-by-word creation to a much wider form of collaboration more aptly described as “conceptual orchestration”.

Conceptual orchestration in AI-assisted creation involves the human author investing in the necessary tools, providing creative direction, conceptual frameworks, and strategic decision-making while delegating execution tasks to AI systems. This mirrors several established legal precedents where copyright has been recognised for conceptual contribution distinct from technical execution, a topic I will come back to shortly.

Before I do, more on the concept of orchestration. Writing in Psychology Today, John Nosta says it is too simplistic to say that large language models (LLMs) are eroding our thinking ability and that what is in fact happening is something far more profound. He argues that something that must inevitably change is how we view authorship and how we create copyright works.[i] His basic thesis is that to equate prompting with authorship in the traditional copyright sense is not just simplistic but problematic. In his view, we need to develop a new concept of authorship built around what he calls “orchestration”. The basis is that when we use an LLM it is more like conducting a symphony than writing a score. In other words, it is not exactly how we reduce the work to tangible form (i.e., in orthodox copyright terms, the act of expression), but how we conceive and shape the content.

Nosta acknowledges that the whole concept of authorship is blurring but he believes that the real question is not whether cognition is deteriorating but whether it is evolving. As he puts it:

The question isn’t whether we remember every word, but whether we shaped the intent. In this new dynamic, authorship is not a solo act, but a choreography of ideas—some human, some artificial, all orchestrated by the mind behind the prompt.

While Nosta is looking at the issue primarily from a cognition or cognitive debt perspective, he does not address the underlying issue of how authorship is determined when a choreography of both human and artificial ideas is assembled. That is where the “devil in the detail” resides.

How does the law deal with the issue of collaboration and the creative pathway when more than one contributor is involved?

Take, for example, the EU’s established originality test, requires an author’s “own intellectual creation”, reflecting their personality through free and creative choices. It faces new complexities. A number of questions arise. First, can orchestration of AI output constitute “free and creative choices”? Secondly, how do we assess personal contributions and the imbuing of creative work with a human author’s personality and how would this be valued in a collaborative human-AI creation? Thirdly, what constitutes sufficient human creative input, and would it necessarily depend on the nature of the creative effort, from highly artistic to the more mundane?

These questions require an assessment of normative human behaviour and difficult judgement calls. Potential adaptations might focus on a human conceptual framework and creative direction, evaluate the quality and originality of prompts and iterative refinements, and consider the overall creative architecture. That assessment will seldom be easy. However, as we are rapidly moving into uncharted territory we need to think outside the box, not confine ourselves to what might have worked in the past.

[i]      John Nosta, “Writing in the Age of Shared Authorship,” Psychology Today, June 19, 2025, https://www.psychologytoday.com/us/blog/the-digital-self/202506/writing-in-the-age-of-shared-authorship