COPYRIGHT IN AI GENERATED WORKS BY - SIDDHANTH SARWAL

COPYRIGHT IN AI GENERATED WORKS

AUTHORED BY - SIDDHANTH SARWAL

L19BLB102

BBA LLB-A(HONS)

Introduction

Authorship in copyright works has been a crucial topic in the domain of Intellectual property rights. The Copyright Act of 1957 was the first post-independence copyright legislation in India and has been amended six times ever since, the law has been applicable in India from 21st Jan 1958. Ever since the advancement in technology and the development of AI, the issue of authorship to the works generated by AI has been recognized. With the boom in the recent trends of using AI technology for more and more works instead of utilizing human resources has increased the concern for protection of such works. Such technological advancement in the creative AI systems can easily help a person produce original works of art, music, and literature. Furthermore, the implication from such original works is still unclear. Copyright law were created keeping in mind the aim to provide protection to the authors, but under such conditions who shall be considered as the author of such work? Will it be the AI itself, or the person who created the program, or the person who trained it? This paper explores the current state of copyright law regarding AI-generated works and considers the possible changes that may be necessary in the future.

Background of Copyright Law

History of copyright law in India,

The modern copyright law in India is governed by the Copyright Act, 1957, which replaced the previous Copyright Act of 1914. The Act provides legal protection for literary, artistic, musical, and dramatic works, as well as cinematographic films and sound recordings.

The Copyright Act, 1957 was later amended by the Copyright (Amendment) Act, 2012, which brought about significant changes to the copyright regime in India. Some of the key changes included the introduction of a new category of works called "performers' rights," the expansion of the fair dealing provisions to include new purposes such as research, and the establishment of a statutory licensing scheme for certain types of works.

In India, copyright protection is automatic and does not require registration. However, creators can register their works with the Copyright Office for additional benefits, such as evidence of ownership and the ability to sue for statutory damages in case of infringement.

The term of copyright protection in India varies depending on the type of work. For literary, dramatic, musical, and artistic works, copyright protection lasts for the lifetime of the author plus 60 years after their death. For cinematographic films and sound recordings, the term is 60 years from the year of publication or production.

Overall, copyright law in India is aimed at protecting the rights of creators and encouraging the development of a vibrant creative industry in the country.

Further in today’s world of machines and AI learning these AI-generated works are created using machine learning algorithms that are trained on large datasets of existing works. The algorithms use this data to generate new works that are similar in style and content to the input data. However, the resulting works are not exact copies of any single input work and may be considered original works in their own right.

AI-Created Works in Different Jurisdictions  

The current state of copyright law regarding AI-generated works is still unclear. In many jurisdictions, copyright law only grants protection to works created by human authors. For example, in the United States, copyright law states that "copyright protection subsists… in original works of authorship fixed in any tangible medium of expression"[1]. The term "authorship" implies that copyright protection is only available to works created by human authors.

Similarly, the European Union's Copyright Directive states that "Member States shall provide for authors to enjoy the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them"[2]. The term "authors" again implies that copyright protection is only available to works created by human authors.

However, some jurisdictions have taken steps to address the issue of AI-generated works. For example, in the United Kingdom, the Copyright, Designs and Patents Act 1988 states that "copyright in a work that is computer-generated shall belong to the person by whom the arrangements necessary for the creation of the work are undertaken"[3]. This implies that copyright protection may be available to AI-generated works, but only if a human person was involved in the creation of the work.

Recently there have been events where AI has created certain original works and has recreated works of some famous artists, if a situation like this arises who shall be given the authorship for creating the original work and who shall be held liable for violation of Copyright laws. Can AI be held liable for violation of Copyright laws?

Art lovers were shocked after witnessing a historical event when an artist recreated the painting of a famous artist Johannes Veermeer’s masterpiece ‘Girl with a pearl earring’ in an art exhibit in the Hague in Netherlands.

India’s Stand

In India, the position with respect to copyright in AI-generated works is not entirely clear. Currently, the Copyright Act, 1957, which governs copyright law in India, does not explicitly address the issue of copyright ownership in works created by AI.

“Copyright” is defined as the exclusive rights of owner to do or authorise the doing of any acts (such as reproduce work, publication of work, adaptation, and translation etc.) in respect of work[4]. The Act further provides that the creator of the work should be the original owner of the copyright; but, if the work was produced as part of a contract for consideration and at the employee's request, then the employer would be the rightful owner of the work in that circumstance.[5]

Details of ownership in certain situations, in the absence of any agreement to the contrary; -

Further ‘Author’[6] means; -

1. In relation to literary or dramatic work, the author of the work;
2. In relation to a musical work, the composer;
3. In relation to an artistic work other than a photograph, the artist;
4. In relation to a photograph, the person taking the photograph;
5. In relation to a cinematograph film or sound recording, the producer; and
6. In relation to any literary, dramatic, musical, or artistic work which is computer generated, the person who causes the work to be created.

In the case of Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd.[7] the Hon’ble Court held that,

In relation to question papers for an examination, that the author of the paper shall be a person who has compiled the questions; the person who does this compiling, is a natural person, a human being, and not an artificial person; Central Board of Secondary Education is not a natural person and it would be entitled to claim copyright in the papers only after it establishes and proves it had engaged persons specifically for the purposes of preparation of compilation, known as question papers, with a contract that copyright therein will vest in CBSE.[8]

In another case the courts observed that a juristic person is incapable of being the author of any work in which copyright may exist.[9] The same has been a settled practice with the Practice and Procedure Manual (2018) issued by the Copyright’s Office, which clearly states that for the purpose of Copyright, only natural person details must be provided as Author of the work.

The Court’s reasoning for requirement of author being a natural person has been based on observations, in varying jurisdictions. Some of which are:

1. Author is the first owner of the copyright.[10]
2. Elements of authorship in selection, coordination and arrangement of material are necessary for protection of a compilation.[11]
3. Compilation developed by anyone devoting time, money, labour, and skill amounted to a literary work wherein the author had a copyright.[12]
4. The copyright ability of the work is tested from the original work (being creativity) and exercise of skill and judgements by the author.[13]

Works of Artificial Intelligence

However, it is generally understood that copyright in AI-generated works may be owned by the person or entity that has created or developed the AI algorithm used to create the work, rather than the AI itself. This is because copyright law generally recognises human authorship and creativity as the basis for copyright ownership.

In cases where an AI system has been trained on a large dataset of copyrighted works and is used to generate new works that may be similar to or derivative of those works, there may be questions around infringement of the original works' copyrights. However, there is no clear legal precedent on this issue in India.

It is important to note that the legal landscape around AI-generated works is still evolving globally, and there is ongoing debate and discussion around issues of ownership, liability, and accountability. As such, it is important for individuals and organisations involved in the creation and use of AI-generated works to stay informed about legal developments and best practices in this area.

Major concerns have been raised with regard to the protection of work created by AI & protection of already existing copyrights from being violated. Such can be categorised into parts with work created with human interference and without human interference.

Who will be the Author of such works?

In situation where the work created by AI has some interference by humans, under such circumstances the creativity in the work can be said to be derived from input of human and therefore, the authorship can be attributed to humans.

However, w.r.t. situations where work is generated without any human input, the law is unclear with authorship and has a grey area regarding the same. Following approaches can be taken under such situations;

1. The authorship of such work, generated without the input of humans, may be granted to the author of AI who has developed the program creating AI.
2. If the AI is programmed properly and given enough security, it may be able to detect equations on its own and create results. In this case, the creator of the AI may retain ownership of the originality of the work produced.  

Is Indian Copyright’s law equipped to handle work created by AI?

The current copyright law in place isn’t equipped with the necessary protection or means to bring under the ambit, work created by AI without any interference of humans. The current law in India has focused on human interference for a copyright protection, however with the fast development in AI and fast learning technology the laws need to be amended as well to address the grey area.

Issues that may arise after recognising AI as a separate entity and works created?

Violation of existing copyright – understanding basic working of an AI which creates content based on contents or parameter or the extent of information to which the software program allows to explore. The AI is dependent on its programming to generate results. The AI is unable to create responses based on the information available either publicly or some other persons copyrighted work. To sum it AI is unable to create original work and creates adaptations or modified versions of the content available.

Issue of originality – Section 13 of the Indian Copyright Act, 1957 defines ‘works in which copyright subsists’,

The provision defines that for a work to be copyrightable it must be original. The term ‘original work’ hasn’t been defined in the statute, however, the Courts have laid some parameters to check;

1. Whether the idea and expression are entwined. (Doctrine of Merger)
2. Whether the author produced the work with effort and expertise. (Sweat of the Brow Doctrine)
3. The least level of inventiveness present in the work. (Modicum of creativity)
4. The use of talent and judgement in the creation of the work, as opposed to only effort and skill. (Sweat of the brow/ Skill and Judgement Test)

Indian case law

There were no reported cases in India specifically addressing copyright ownership in AI-generated works. However, there have been a few cases that touch upon related issues, such as the ownership of computer-generated works and the infringement of copyrighted works through the use of AI technologies.

One notable case in this context is the 2013 decision of the Delhi High Court in the case of ICC Development (International) Ltd. v. Arvee Enterprises and Others. In this case, the court held that the originality and creativity of a work are essential elements of copyright ownership, and that a work created by a computer program cannot be considered original or creative unless it involves human intervention or creativity.

Another case that touches upon issues related to AI-generated works is the 2019 decision of the Delhi High Court in the case of Tips Industries Ltd. v. Wynk Music Ltd. In this case, the court held that the defendant, an online music streaming platform, was liable for copyright infringement for allowing users to access and stream copyrighted works without the proper licenses. The case did not specifically address the use of AI in the infringement, but it did highlight the potential liability of online platforms for hosting copyrighted works without proper authorisation.

International case laws

There were no landmark case laws in the world specifically addressing copyright ownership in AI-generated works. However, there have been some notable cases that touch upon related issues.

One of the most well-known cases is the 2018 case of Naruto v. Slater in the United States. In this case, the issue was whether a monkey named Naruto, who took a photograph of himself using a camera left by a wildlife photographer, could be considered the owner of the copyright in the photograph. The court ultimately held that Naruto did not have standing to sue under US copyright law, as he was not a human being and therefore could not own the copyright.

While the Naruto case does not specifically address AI-generated works, it does raise interesting questions about the ownership of creative works that are not created by humans.

Another notable case is the 2019 decision of the European Court of Justice in the case of Eva Glawischnig-Piesczek v. Facebook Ireland Limited. In this case, the court held that online platforms can be held liable for copyright infringement if they fail to remove infringing content that has been flagged by rights holders. While this case does not directly involve AI-generated works, it highlights the potential liability of online platforms for hosting infringing content.

Conclusion

As AI technology continues to advance, it may be necessary to update copyright law to ensure that it adequately protects the rights of creators of AI-generated works. One possible approach would be to grant copyright protection to AI-generated works, regardless of whether a human person was involved in their creation. This would require a significant shift in the legal definition of "authorship” and would likely face opposition from traditionalists who believe that copyright should only protect works created by human authors.

Another possible approach would be to assign copyright ownership to the person who programmed or trained the AI system. This would ensure that someone has the legal right to control and monetize the output of the AI system. However, this approach could also be problematic, as it may not accurately reflect the creative input of the AI system itself.

At the moment, the laws are not sufficiently developed to cover the formation of AI and its rights, let alone resolve any grey areas. Unquestionably, the Copyright Act of 1957 designated the author as a person, and the incorporation of AI rights cannot be contemplated until the AI are granted special legal rights to this effect. Alternate solutions include changing the legislation to create a new category or to recognize AI as an author.

[1] (17 U.S.C. § 102(a))

[2] (Directive 2001/29/EC)

[3] Copyright, Design & Patents Act, 1988, Section 9(3)

[4] Copyright Act, 1957, Section 14

[5] Copyright Act, 1957, Section 17

[6] Copyright Act, 1957, Section 2(d)

[7] 1994 (28) DRJ 286

[8] Navigators Logistics Ltd. vs. Kashif Qureshi & Ors. (CS(COMM)735/2016)

[9] Tech Plus Media Private Ltd. V. Jyoti Janda, (2014) 60 PTC 121; Camlin Pvt. Ltd. V. National Pencil Industries, AIR 1986 Delhi 444

[10] Copyright Act, 1957, Section 17

[11] Feist Publications v. Rural Telephone Service Co., 499 U.S 340 (1991)

[12] Burlington Home Shopping Pvt. Ltd. V Rajnish Chibber, 61 (1995) DLT 6

[13] Eastern Book Company v. D. B. Modak, (2008) 1 SCC 1