Artificial Intelligence has become a crucial aspect of all our lives and in recent times it has taken over the creative industry. AI is now generating artwork, writing essays and coding websites. Unlike previous programmes that heavily relied upon the users input, AI today has its own creative process and imagination with a minimal input. When applied to music and literary works, AI machines make entirely independent decisions in its output. It can replicate the thinking and imagination of a human. This thus puts forth a question of grave importance in front of us: Who owns the copyright of a work produced by AI?
Up until today, the work produced by AI was through the user’s input and hence the copyright was vested in the hands of the programmer. However, times have changed, we the introduction softwares like Chat GPT, with just a prompt by the user AI is capable of producing a literary work in seconds. AI assisted works involve significant human intervention whereas AI generated works are devoid of human intervention. There needs to be an indispensable deliberation about the latter.
UNDERSTANDING THE LEGAL SCENARIO WITH COMPARISION TO OTHER COUNTRIES
To understand this better, we must take a look at the issue of authorship. Copyright is one of the most important forms of Intellectual Properties. It provides the author an exclusive right over its original work. In the event of a human author, it is fairly simple to determine their authorship but it becomes far more complicated when the subject is a computer based, mechanical work. But there is disagreement among the nations as to who should be regarded as the creator and owner of AI-generated work. It is unethical to regard the person who created the work as its author because there was no human intervention. The works produced by AI cannot also be removed from the public domain on the grounds that no human intervention occurred.
IN 2021, India had momentarily granted copyright protection in AI works, only to have a withdrawal notice issued at a later stage[1]. An AI painting app named ‘RAGHAV’ was registered in India as a co-author in a copyrighted work titled “Suryast“. The other co-author was Mr. Ankit Sahni, the owner of the AI App. Initially, the Indian Copyright Office rejected an application listing the AI (‘RAGHAV’) as the sole author for an artwork. However, a second application was filed where the owner of the AI and an AI were named as co-authors for another artwork was allowed. Interestingly, within a year, the Copyright Office issued a withdrawal notice seeking information about the “legal status” of the AI Raghav citing, inter-alia, that copyright in an artistic work and would vest in the “artist.”[2]
Infact this drew the attention of Parliament. The Parliamentary Standing Committee on Commerce has made intellectual property rights its central idea of discussion for its 161st report. The report brought to light the fact that the existing copyright laws are not efficient to safeguard the AI Generated Works. It was recommended that certain changes must be made as a matter of priority. The report also suggested that the works independently created by AI must be protected under the copyright laws so that it rewards its creator. [3]
In case of a work created by an Artificial Intelligence it goes without saying that the test of originality as laid down in Eastern Book Company[4] will necessarily need to be satisfied and shall be determined on a case-case basis. On the other side, Eastern Book Company has another essential feature that unintentionally assists the operation of artificial intelligence. As was previously mentioned, the artificial intelligence that is the subject of this paper primarily uses “data” to “learn” and “provide an output.” For instance, Amper the music AI created a piece of music utilising vast amounts of “data” that was provided to it. In summary, an artificial intelligence-generated work is essentially a comprehensible synthesis of material that has been supplied to it. Eastern Book Company promotes the operation of artificial intelligence in this regard. According to the Supreme Court, it is improper to evaluate individual components of a work in the character of a compilation separately from the total when determining whether it is original. Thus, prima facie there exists nothing to refuse copyright, on the grounds of ‘originality’, for a work created by an Artificial Intelligence unless it is a copy.
There are two stances adopted by various countries so far regarding authorship. The first one being denying copyright ownership to AI completely and the second is to attribute authorship to the creator of the machine. The first approach is followed by much of the West. In the USA, for instance, the Copyright Office declares that it will “register an original work of authorship, provided that the work was created by a human being”. The European Court of Justice in its landmark decision Infopaq International A/S v. Danske Dagbaldes Forening[5], held that copyright only applies to original works, and originality must reflect the “author’s own intellectual creation.” Jurists have understood this to mean that a human author is a prerequisite for a copyright work to exist.
India, among other countries, has adopted the second strategy in contrast. An “author” is defined as “the person who causes any literary, dramatic, musical, or artistic work which is computer generated to be created” in Section 2(d)(vi) of the Indian Copyright Act[6]. In line with UK law, Indian copyright laws also define the “author” in a manner that assigns ownership to the person who initiated the creation of the work in the capacity of an author. However, this definition extends beyond natural persons to include juristic persons such as companies and organisations. The aforesaid inclusion in the rule does suggest a potential for the broader interpretation of authorship for Artificial Intelligence-generated work, even though there are no legal precedents involving such works.
With the advent of transformative AI, the interpretation of the word author has captured attention. In order to give AI authorship we must first recognize AI as a legal person. But this in itself has many drawbacks. AI-generated content might not be error-free. The AI may employ derogatory or obscene language, encourage conflict along racial, ethnic, or religious lines, or result in any other unintended outcome. Due to the AI’s lack of legal recognition as a person, it will be challenging to determine its civil and criminal liability in this situation. Even if such material is destroyed or, in the worst-case scenario, AI software is outlawed, it might already be too late and the harm may already be irreparable. Another problem is that if an AI-generated piece of work ends up being “substantially similar” to an earlier piece of work that might be protected by copyright, how will the AI be held as an infringer in such a case? Further, if AI is treated as an author, it will not be entitled to transfer ownership in the work, in absence of personhood. Making AI an author of the work will not be an easy task as it is likely to create more difficulties than to resolve them. Last but not the least, one of the objectives of copyright law is to provide an incentive to the author of the work in terms of providing economic rights and moral rights to motivate him to produce more works for the advancement of society. The AI, being non-human does not require any such motivation to create the work.[7]
In the US the works generated autonomously by the AI without human intervention are dropped into the public domain for instance the Monkey Selfie case[8] considered if a monkey could be granted copyright protection. The final judgement pronounced that non-humans are incapable of claiming copyright. It thus dissuades the investors from investing in the AI altogether.[9]
In the case of the UK, the copyright is granted to the human behind the arrangement and it is not prudent because the work is not AI assisted, rather it is AI autonomously generated.[10] The Copyright, Patents and the Designs Act, 1988 under Section 9 (3)[11] attributes copyright to “the person by whom the arrangements necessary for the creation of the work are undertaken”.[12]In the case of AI generated works, it is difficult to point at the person by whom arrangements were made.
Sophia[13], a robot, has been granted citizenship by Saudi Arabia, DABUS[14] is recognised as an inventor in both Australia and South Africa, and India and Canada have recognised AI as a joint author under copyright law. The European Union is considering granting AI the status of an electronic person[15]. Since each government has its own unique strategy, there is no worldwide agreement among the nations on the protection of AI-generated works. The World Intellectual Property Organisation (WIPO) organised the first session of the WIPO Conversation on IP and AI in September, 2019[16] and the second session in July, 2020[17].The discussion on Copyright and AI mostly represented issues with the protection of AI-generated works. In the first session, it was discussed, among other things, whether AI generated works should be protected at all, whether AI should be given legal personality in order to receive copyright protection, who should be considered the owner in order to receive copyright protection, and whether there should be a separate sui generis protection for the AI created work. The second session focused on deep fakes, exceptions, and authorship and ownership, as well as infringement. However, nations are still having trouble coming up with a unified strategy for providing copyright protection to works produced by AI on its own.
CONCLUSION
The scope of the issues that AI systems represent to the IP laws must be evaluated by the Indian legal system. Although it would be safe to say that by merely extending and making more room in their interpretation, the current Indian laws might themselves include such a granting of ownership. A word of caution is necessary at this time since, in the absence of a singularity, the effects of such altered rules would need to be carefully considered. The emergence of this field begs for investigation into the ethical and financial implications of revolutionary technology and its rights. Moreover, in the given rise in usage of IP as assets in business models it has become imperative to cover Artificial Intelligence within the scope of Intellectual Property Rights. The Indian Jurisprudence has so far relied upon the doctrine of sweat and brow It basically means that the individual who put in their efforts and labour and produced the artistic and creative work would be the rightful author and be given the right to protect their work. By applying this doctrine, AI must be given co-ownership along with the programmer to recognize the rightful efforts of both. Humans heavily rely on earlier works for inspiration and reference, but it won’t stop them from claiming copyright for their own creations. The same should logically apply to works produced by AI. Additionally, the copyright only defends how ideas are expressed, not the ideas themselves. Originality is concerned with how ideas are expressed. The work produced by The Next Rembrandt or any other AI that draws inspiration from earlier works need not be a direct copy of those earlier masterpieces. The autonomously generated works by AI are eligible for copyright protection as long as they are original.
The Indian Copyright Office made a ground-breaking choice by recognising AI as a co-author, although it still appears to be a hasty choice. It would be crucial to discuss how the length of protection would be determined when AI is taken into account as a joint author. The issue of authorship and ownership requires contemplation provided that the definition of the word ‘author’ under Section 2(d) includes only a human author and not AI. AI being immortal the term of protection under the Section 23 of the Act needs to be amended. Although granting moral rights and legal personality to AI might not be feasible and prudent. AI can be recognized as a joint author. To do so, the current laws must be revisited. The definition of author and age in case of AI must be determined. Registration should be made mandatory in case of the works that are generated by the AI. The copyright protection should be granted after registration to both human and the AI as joint authors so that the Copyright Office can determine the extent of human intervention in the works generated by the AI. In any case, the AI-generated works should be provided lesser protection and human creativity should be preferred over machine creativity. A balanced approach is therefore, the need of the hour.
[1] Sukanya Sarkar, Exclusive: Indian Copyright Office issues withdrawal notice to AI co-author, MANAGING IP (Dec. 28, 2022, 03:39 PM), https://www.managingip.com/article/2a5d0jj2zjo7fajsjwwlc/exclusive-indian-copyright-office-issues-withdrawal-notice-to-ai-co-author.
[2] . India recognizes AI as author of a copyrighted work, LEXCAMPUS (Dec. 28, 2022, 03:39 PM), https://www.lexcampus.in/india-recognises-ai-as-author-of-a-copyrighted-work/#:~:text=For%20the%20first%20time%20in%20India%2C%20an%20Artificial,an%20IP
%20lawyer%20who%20owns%20the%20said%20App.
[3] Parliament of India, Rajya Sabha, Department Related Parliamentary Standing Committee on Commerce, Report No 161, Review of The Intellectual Property Rights Regime In India, (Presented To The Rajya Sabha on 23 July 2021)
[4] Eastern Book Company v D.B. Modak, AIR 2008 SC.
[5] C-5/08 Infopaq International A/S v. Danske Dagbaldes Forening
[6] Copyright Act,1957
[7] Ayush Pokhriyal and Vasu Gupta, “Artificial Intelligence Generated Works under Copyright Law”, 6(2) NLUJ Law Review 116 (2020).
[8] Nguyen P, The monkey selfie, artificial intelligence and authorship in copyright: The limits of human rights, Public Interest Law Journal of New Zealand, 6 (2019) 121-136.
[9] Naqvi Z, Artificial intelligence, copyright, and copyright infringement, Marquette Intellectual Property Law Review, 24 (1) (2020) 15-52.
[10] Kretschmer M, Meletti B & Porangaba L H, Artificial intelligence and intellectual property: Copyright and patents—a response by the CREATe Centre to the UK Intellectual Property Office’s open consultation, Journal of Intellectual Property Law & Practice, 17 (3) (2022) 321-326.
[11] Copyright, Patents and the Designs Act, 1988
[12] Bond T & Blair S, Artificial intelligence & copyright: Section 9(3) or authorship without an author, Journal of Intellectual Property Law & Practice, 14 (6) (2019) 423.
[13] 4 https://www.washingtonpost.com/news/innovations/wp/2017/ 10/29/saudi-arabia-which-denies-women-equal-rights-makesa-robot-a-citizen/ (accessed on 27 June 2022).
[14] Oriakhogba D O, Dabus gains territory in South Africa and Australia: Revisiting the AI-inventorship question, South African Journal of Intellectual Property Law, 9 (1) (2021) 87-108.
[15] 3 Nowik P, Electronic personhood for artificial intelligence in the workplace, Computer Law & Security Review, 42 (2021).
[16] WIPO Conversation on Intellectual Property (IP) And Artificial Intelligence (AI), Organized by the World Intellectual Property Organization (WIPO) Geneva, 27 September 2019, https://www.wipo.int/edocs/mdocs/mdocs/ en/wipo_ip_ai_ge_19/wipo_ip_ai_ge_19_inf_4.pdf.
[17] WIPO Conversation on Intellectual Property (IP) And Artificial Intelligence (AI), Organized by the World Intellectual Property Organization (WIPO) Geneva, July 2020, https://www.wipo.int/edocs/mdocs/mdocs/en/wipo _ip_ai_3_ge_20/wipo_ip_ai_3_ge_20_inf_5.pdf.
Author: Mehek Chowatia
Juris Centre 