On July 2, 2025, the Second Chamber of the Supreme Court of Justice of the Nation (SCJN) issued a landmark ruling in Amparo Directo 6/2025 that will redefine the intellectual property landscape in the digital age. The initial draft set a strong precedent: works created exclusively by artificial intelligence cannot be protected by copyright in Mexico because they lack the human creativity and originality necessary for such protection, and therefore, their ownership automatically passes into the public domain.
However, almost two months later, on August 28, when the full text of the ruling was published, a significant change in the Court’s reasoning was revealed. While the original ruling suggested that these works would automatically enter the public domain, the final text omitted this reference, limiting itself to confirming the impossibility of copyright protection without addressing the legal fate of such creations.
The case started when Gerald García Báez requested the registration of a work entitled “Avatar Virtual: Gerald García Báez” at the National Copyright Institute (INDAUTOR), who denied his request. After exhausting the corresponding instances, García Báez went to the SCJN, where it was finally confirmed that works generated by Artificial Intelligence (AI) lack copyright protection.
Why is this decision important?
This decision establishes a fundamental precedent that answers an increasingly frequent question in our practice: can a machine be considered the author of a work? The answer of the Court is categorical: no. According to the interpretation of our legal framework (Article 12 of the Federal Copyright Law), only natural person can be copyright holders, since only they possess the creative and intellectual capacity necessary to generate original works.
This position is not new in the Mexican justice system. In Amparo en Revisión 131/2021, the SCJN had already established that Copyright is a human right that belongs exclusively to individuals. The Court has maintained a consistent line: authentic creativity requires the intervention of the human intellect, with all the intentionality, personality and conscious decisions that this implies.
The international panorama: different approaches to the same challenge
Globally, countries have adopted diverse approaches to regulate this intersection between technology and intellectual property. This diversity reflects the complexity of the issue and the need to strike a balance between protecting human creativity and not stifling technological innovation.
In Spain, Mexico and Germany, the approach has been conservative, recognizing only natural person as authors. The European Union has been clear in stating that copyright protects exclusively the fruit of intellectual work based on the creative power of the human mind.
However, other countries have explored different paths. The United Kingdom, for example, recognizes as an author anyone who makes the “necessary arrangements” for the creation of computer-generated works. Australia, for its part, has gone further, being the first country to recognize AI as an “inventor” in patent matters, although this does not automatically extend to copyright.
Particularly interesting is the Chinese case where in 2023 protection was granted to an AI-generated image entitled “Spring Breeze Brings Tenderness.” The key was that the applicant proved to have provided approximately 150 specific indications to the AI, which the court considered to be a relevant creative contribution. This precedent suggests that the quantity and quality of human intervention can be determining factors.
The United States has adopted a more nuanced approach. Its Copyright Office established in 2023 that it will not register works generated entirely by AI, but will protect those where there is a substantial human contribution, provided they demonstrate sufficient originality and creative selection. Also, an AI product consisting of a selection, assembly or modification may be protected if it is sufficiently original.
Risks and practical considerations
The SCJN decision raises several practical challenges that we observe in our practice. The main problem lies in the difficulty in determining where the tool ends and authorship begins. In practice, very few works are created today without some sort of technological assistance, and the line between using AI as an auxiliary tool versus relying on it for creation can be very tenuous.
On the other hand, the ruling also does not distinguish between different degrees of human intervention, which can lead to works with a relevant creative contribution by individuals being left unprotected simply because AI has been used at some point in the process.
Recommendations
In view of this new scenario, we have developed a series of practical recommendations based on our experience and international best practices observed in jurisdictions with more developed regulatory frameworks:
- Thorough documentation of the creative process. Our main recommendation is to keep a detailed record of the entire creative process. This includes keeping evidence of the instructions given to the AI, the changes and modifications made, and the creative decisions made at each stage. Although traditionally copyright is based on the presumption of good faith, in this context documentation becomes crucial to demonstrate the human contribution.
- Maximizing human intervention. When using AI tools, make sure your involvement is meaningful and documentable. This means not only generating content, but selecting, curating, modifying and transforming the material produced by the AI. The key is to maintain creative control of the process and ensure that the end result reflects conscious and deliberate decisions.
- Strategic approach to the use of AI. Consider AI as a support tool, similar to a word processor or design program, not as the primary generator of the work. Use it to overcome creative roadblocks, generate initial ideas or automate repetitive tasks, but always maintain the creative direction of the project.
- Proper structuring of collaborations. If you work in teams or hire creative services, make sure that contracts clearly specify who retains rights to the works created and under what conditions. This is especially important when involving AI tools that could raise questions about ownership.
As can be seen, the precedent established by the SCJN reflects a cautious approach that prioritizes the protection of traditional human creativity. However, we recognize that technology advances faster than law, and it is likely that we will see regulatory developments in the coming years.
At the legislative level, we consider it necessary for Mexico to develop more specific criteria for assessing the adequacy of human contribution in works involving AI. This could include objective parameters such as the degree of modification of the original output, the amount of documented creative decisions, or the investment of time and intellectual effort in the process.
We also consider the need to explore alternative protection mechanisms. While traditional copyright may not apply, other instruments and/or sui generis protection schemes could offer viable alternatives to protect investments in creative technology development.
The SCJN decision does not represent the end of the conversation on AI and copyright, but rather the beginning of a more sophisticated dialogue on how to balance the protection of human creativity with the encouragement of technological innovation.
At Baker Tilly, we understand that the intersection between technology and intellectual property represents one of the most fascinating and complex challenges in contemporary law. Our approach combines the technical rigor necessary to navigate these complexities with the practical clarity our clients require to make informed decisions.
We work closely with creators, technology companies, and AI developers to design protection strategies that adapt to both the current legal framework and emerging technological realities.
Feel free to contact our Intellectual Property specialists. Our goal is to transform legal uncertainty into strategic opportunities, helping our clients innovate responsibly while protecting their intellectual assets.
