In our definition of Intellectual Property, we once embraced the concept as the realm of “creations of the mind”, yet little did we fathom that the very essence of this “mind” could one day beckon interpretation, whether originating from the complex web of neurons in our brain or from the meticulously crafted circuits of Artificial Intelligence, which obviously in the end is a product of the former. More often than not we see the acknowledgement page in a book or a Novel or at the end of a movie which recognizes the due credit that the person named deserves. Now in a world where Al is more than just an assistant, the question arises whether it also deserves the due credit?
It is believed that humans are the most intelligent creatures on the planet. They are the only beings with the ability to use intelligence to make anything. The word Artificial Intelligence is used to describe something that comes close to human intelligence. It’s interesting to note that artificial intelligence has now gained the ability to create content that could qualify as intellectual property and need to be safeguarded. However, the content produced by artificial intelligence might also violate other people’s intellectual property rights. Therefore, in this new era of technology driven by artificial intelligence, legislators must decide on the position whether to safeguard intellectual property created by the Al as well as a situation in which the Al has learned on its own and has applied that knowledge to produce intellectual property that falls under the definitions of “invention” or “creation” in the existing laws. This is because Al is leading the way in a new era of technology.[1]
Legal conundrums in the copyrights act
Original works created by humans are protected by copyright in India under the Copyright Act of 1957. When it comes to works produced only by Al algorithms, this leaves a grey area. In the framework of copyright rules, Al-generated work provides a unique issue in determining authorship and ownership. If there is adequate human control during the production process, Al-generated work is typically regarded as belonging to the human creator in the European Union. But it’s still unclear what exactly qualifies as “sufficient” human monitoring. The Copyright Act of 1957 does not specifically address who is the author of work created by Al in India.
According to S.13[2] of the Indian Copyright Act 1957 Copyright consists the following class of work
a. Original literary, dramatic, musical & artistic work
b. Cinematography films
c. Sound Recordings
Hereby meaning that the scope of copyright is limited to these four classes. The Indian Copyright Act of 1957 When defining author in S. 2(d) (vi)[3], it means
“(i) in relation to any literary, dramatic, musical or artistic work that is computer-generated, the person who causes the work to he created (ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist,
(iv) in relation to a photograph, the person taking the photograph:
(v) in relation to a cinematograph film or sound recording, the producer; and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.”
According to this “work” to be eligible for protection under the copyright law, it must first fulfil the requirements for a “modicum of creativity” outlined in Eastern Book Co v. D.B. Modak[4]. In this instance, the Court decided that there had to be “some substantial variation and not merely a trivial variation,” and that a “minimal degree of creativity” was necessary. Therefore, it is impossible to draw a firm conclusion that says an Al cannot possess the necessary “modicum of creativity.” In addition to the aforementioned, an Al must meet the second prerequisite in order to be considered the owner of copyrighted works: it must be recognized as an “author” in accordance with the Act.
This is problematic since artificial intelligence is not traditionally recognized and does not have a legal identity. When the true author or contributor of the “expression” is neither a living person nor a recognized legal entity, the legal structure now in place as defined by the Copyright Act of 1957 may not be sufficient to address the situation or provide guidelines for the creation of works[5]. As such, identifying authorship under Indian copyright laws becomes contentious, particularly when Al produces the results using software algorithms or the most likely results from user-initiated composite searches. As such, it becomes dubious to classify Al-generated outcomes as “work” or “works.”
However, looking at Al outcomes is a result of an algorithmic outcome or maximum likelihood result of the combined search based on prompt; thus, it cannot be treated as a “work” or “works”.
Recent noteworthy cases
Stephen Thaler v. Shira Perlmutter (US)
In a historic ruling, the Court held that neither the machine’s owner-since the machine is the one that produced the work-nor the machine itself because it is not a human-were eligible to register as authors under the copyright laws. The main question of whether work generated autonomously by an Al system is copyrightable in the United States was discussed and decided by the United States District Court for the District of Columbia in Stephen Thaler vs Shira Perlmutter[6], Register of Copyrights and Director of the United States Copyright Office, vide an order dated August 18, 2023.
After considering the matter, the Honourable court determined that the Copyright Office had decided correctly in refusing copyright registration for a work made. Stephen Thaler, a computer scientist, filed an appeal against the US Copyright Office’s denial to register a picture produced by, the Creativity Machine, an artificial intelligence tool. The artwork in question was titled “A Recent Entrance to Paradise.” According to Thaler, the Creativity Machine produced the piece on its own without any assistance from humans.
Thaler and his legal teams’ contention was that Al-generated works and ideas to have patent and copyright protection. Thus far, the USPTO and US courts have determined that only human-created works should be eligible for intellectual property protection. In the most recent case, District Judge Beryl Howell adopted a similar stance. She also disagreed with Thaler’s claims that, as the machine’s owner, he should be entitled to the registration for the Al-generated work, which is typically awarded to the author. The Copyright Office concluded that no work created without any human involvement has ever received a legitimate copyright, so there was nothing to register and no dispute over who was entitled to that registration, Howell said in his rejection of registration.
According to Mazer v Stein[7], a work “must be original, that is, the author’s tangible expression of ideas” in order to be protected by copyright. Also, in Goldstein v. California[8], “author” was described as “an ‘originator’, ‘he to whom anything owes its origin. It is clear that human creativity is the essence of authorship, and courts have consistently refused to grant copyright to works produced without human intervention.[9]
RAGHAV (India)
An Al system RAGHAV was incorrectly acknowledged by the Indian copyright office as one of the authors of an artistic creation, and the copyright application of the same was registered. But at first, the copyright office denied the application made by Ankit Sahni, the designer of the Al system RAGHAV, who identified the Al system as the exclusive author of that work. After wrongly granting the registration, the copyright office later sent out a notice to remove it and requested that the human co-author, Mr. Sahni, discuss the legal standing of the Al system RAGHAV.
The copyright office website still lists the application status as “registered,” but the court has not made a decision yet. Given that Al systems’ sophistication and capabilities are constantly increasing over time, the court’s ruling is highly significant for the problems relating to IP laws and copyright protection in the country. Additionally, it will serve as a precedent for similar cases in the future.
Conclusion
The irony of this article being that even the author stands guilty of using such Al technology in times of need of course but mostly during the occasional bouts of procrastination. Al-generated work challenges conventional ideas of authorship and copyright by blurring the distinction between works created by computers and works created by the mind. Comprehensive and progressive regulations are essential as legal systems struggle to keep up with this changing environment.
Maintaining a balance between promoting innovation in Al and safeguarding copyright holders’ rights is crucial as Al technology develops. In order to address these legal consequences and support the development of Al in our country, it is the need of the hour that copyright laws be modified, fair use in the context of Al be acknowledged, and strong governance frameworks be put in place. While concluding I find myself being sceptical upon the idea of extending the rights under India copyright law to AI.
The Courts have rightly on many occasions stood on the decision to give Copyright only to the minds that are living as had been the intent of the legislature while framing the Copyrights Acts. Including Al as an author would only blur the lines more hence creating a lot of confusion.
[1] Soaham Bajpai, Artificial Intelligence and its Creation: Who Owns Intellectual Property Rights? 10 GJLDP (October) 152, 153, 2020.
[2] Indian Copyright Act, 1957, § 13, No. 14. Acts of Parliament, 1957 (India).
[3] Indian Copyright Act, 1957, § 2(d)(vi), No. 14, Acts of Parliament, 1957 (India).
[4] Eastern Book Co v. D.B. Modak, (2008) 1 SCC 1.
[5]Niti Ayog, National Strategy for Al (2018) Discussion Paper (https://www.niti.gov.in/writereaddata/files/document_publication/NationalStrategy-for-Al-Discussion Paper.pdf).
[6] Stephen Thaler v Shira Perlmutter, Civil Ac on No. 22-1564 (BAH).
[7] Mazer v. Stein, 347 U.S. 201, 214 (1954).
[8] Goldstein v. California 412 U.S. at 561 (quo ng Sarony, 111 U.S. at 58).
[9] “Rajiv Sharma and Ninad Mittal, Artificial Intelligence Lacks Personhood To Become The Author Of An Intellectual Property, LiveLaw Jan.07, 2024, 9:29 PM. https://www.livelaw.in/law-firms/law-firm-articles- /artificial-intelligence-intellectual-property-indian-copyright-act-singhania-co-lip-2384017infinitescroll-1.
Author: Shashwati Chowdhury, 5th Year student at Symbiosis Law School Nagpur.
