AI has developed substantially and over the course of time carried out feats describable as miraculous. Repeated triumph over humans in chess and beating a professional 5-0 in the game Go1 without any handicap, are instances of superseding human intelligence. Proliferation of internet into everyday lives and dependency on it has led to predictive algorithms and other models have evolved to a new concept – machine learning.

Copyright regimes globally have had limited encounters with works created through computers. But granting protection to them was not a difficult task since the work always had a human 'mind' enabling it. AI, however, poses a completely different challenge as there is limited, and near non-existent human intervention. Of late, AI has evolved to be able to write news articles and even novels that are good enough to get selected for national prize.2

While considering the issue of copyrightability of works created by AI the primary question is: Do the AI works require human intervention, or can AI generate work itself independently. The entailed categorization aides lucidity in that regard:3

(1) Works created by AI with human intervention ("AI assisted").

(2) Works created by AI without (or negligible) human intervention ("AI generated").

In the first category i.e., AI assisted work, human intervention, and exercise of human creativity (mostly, in the form of programming the AI) makes the work generated by AI liable to protection. However, in the second category i.e., who will be the owner of copyright in AI generated work, unfortunately, is an unknown territory.

There also appears to be two schools of thought present: one that regards AI as dependent (partially, if not, wholly) on human minds to generate AI works and the other one, that regards AI works as completely independent creations of AI.

Per report by a Senior Judge of the IPR Division of the Supreme People's Court of China published in WIPO4, China's approach has not deviated from the traditional route, and it grants protection only when a work is a product of the author's intellectual creation. In a dispute pertaining to an intelligent writing assistance system called 'Dreamwriter', the Chinese Court had held that the article generated was a written work protected under copyright laws since it was produced by the intellectual creation of the human authors (programmers). The ownership of the copyright in the AI's work was vested with the person who was the exclusive licensee of the AI software.

Such an approach gives impetus to the theory that AI has not yet developed to the level where it is completely free from human involvement since some level of human intervention is still involved in the use of AI applications. This theory, if adapted in the current copyright jurisprudence, may bridge the gap between copyright protection and AI works. However, this approach leads to issues regarding defining the parameters for human intervention required for granting copyright protection to a work created by AI.

The copyright regime in the USA only recognizes works that are "fruits of intellectual labor" and "founded in the creative powers of the mind".5 Particularly, the USA does not recognize copyright protection for computer-generated works without a human author. In fact, the US Copyright Office's Review Board in its decision dated 14.02.2022,6 rejected copyright protection to the AI "Creativity Machine"7. The principal ground for such rejection was that the AI failed to meet the basic requirements that an author must be a human being. Over time, the USA has uniformly held that copyright protection can only be extended to creations of human authors and that there must exist a nexus between the human mind and its creative expression, as a prerequisite for copyright protection. The absence of a defined framework has led to conflicting decisions. Initially USA had granted copyright protection to a comic book, Zarya of the Dawn, created by Kris Kashtanova with the aid of the text-to-image engine 'Midjourney'.8 However, late in 2022, the US Copyright Office reversed its decision.9

The UK grants statutory protection to "computer generated" works to the "person by whom the arrangements necessary for the creation of the work are undertaken"10 for a period of 50 years from the end of the calendar year in which the work was made.11 Furthermore, Section 178 of the Copyright, Designs and Patents Act, 1988, defines a computer-generated work as one that is "generated by computer in circumstances such that there is no human author of the work". Canada, too registered a copyright for a Van Gogh's 'Starry Night'-inspired painting titled "Suryast" in favor of two co-authors: Ankit Sahni and RAGHAV, an AI Painting app.

India momentarily granted copyright protection in AI works, only to have a withdrawal notice issued at a later stage12. In 2021, 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.13 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"14.

In an attempt to enumerate issues within the prevailing copyright laws, Firstly, the Copyright Act, 1957 (Copyright Act) protects "original" literary and artistic works.15 However, per a prevailing theory, AI presently, is incapable of creating 'original' content and the work created is an adaptation / modification of existing information in the public domain that the AI has accessed / analyzed and has been trained on. This relies on the fact that all AI is fed data sets which are coloured with the biases and the limitations of its human creator.

Moreover, under Copyright Act, the requirement that for a 'work' to qualify for copyright protection, it would have to meet the test of 'modicum of creativity' laid down by the Supreme Court in Eastern Book Co vs. D.B. Modak16. It was held that a 'minimal degree of creativity' was required, that 'there must be some substantive variation and not merely a trivial variation'.

Secondly, the additional statutory parameter to be satisfied is the requirement to fall under the aegis of an "author" as defined under the Act17.

The Copyright Act defines work created by computers and proposes the "person" responsible to create the work as the author. Unfortunately, a definition for "person" is not found within the Copyright Act or the rules framed thereunder. Even reliance upon General Clauses Act, 1897, which defines a 'person' as "any company or association or body of individuals, whether incorporated or not" proves inconclusive.18 This might be problematic since AI is not yet regarded as a legal personality in India by any statute and therefore, the current legal framework may not effectively deal with works where the actual creator is not a human or a legal person appropriately.

Recognition of AI other than a person which can be granted the ownership of IP may lead to potential copyright violations. Not only this, but such potential infringement may not be redressed under the existing law since a bare reading of Section 51 of the Copyright Act would show that copyright can only be infringed by a "person".

If AI is considered as separate entity, distinct from their creator/owner and in such case, the AI cannot be held responsible for cases of infringement under the Act. This lends support to adopt the school of thought that the AI is an extension of the creator specifically for the purposes of liability in cases of infringement of data. This also ensures that consideration paid for the right to use the copyright will go to the owners and in turn, incentivize people to create more AI works. This would lead to substantial commercial issues relating to royalties, with questions arising as to who would receive royalty, if at all the same needs to be paid.

Lastly, the conundrum who will become the owner of the copyright – the human or the AI system designed by him? Principally, AI is a creation of its programmer's mind since as it is the human who develops the AI's algorithms. Although the massive developments in AI, some element of human intervention (however, negligible) is still required at this stage, if nothing else then to put the AI into action. The arrangement and selection in terms of data input, trigger condition setting, template and corpus style choices in AI is done by a human programmer. It is also true that due to machine learning and deep learning capabilities, in future, AI may form new, autonomously generated algorithms in addition to algorithms previously set by humans, and the products obtained from the artificially formed algorithm could be wholly AI 'generated' work.

This leads us to a chicken and egg scenario and leaves open the question of who the law would consider to be the person making the arrangements for the work to be generated. Should the law recognize the contribution of the programmer or the user of that program?

Is this then the correct time to deliberate upon a new law for dealing with these 'intelligent' machines? How does it bode with the Indian economy? A Parliamentary Standing Committee on Commerce, Rajya Sabha Report dated 23.07.2021 estimates that the benefits from AI related innovations will add approximately USD 957 billion to the Indian economy by 2035.19 In fact, the aforesaid Report has specifically recommended a "separate category of rights for AI and AI related inventions" and protection of their intellectual property rights, besides review of the existing IPR legislations to "incorporate the emerging technologies of AI and AI related inventions in their ambit".20 As this remains to be implemented, the future of Law, as understood until now, is set on a course of massive evolution.

Footnotes

1. Artificial intelligence: Go master Lee Se-dol wins against AlphaGo program, BBC NEWS (Dec. 29, 2022, 12:00 PM), https://www.bbc.com/news/technology-35797102

2. Chloe Olewitz, A Japanese A.I. program just wrote a short novel, and it almost won a literary prize, DIGITALTRENDS (Dec. 28, 2022, 03:39 PM), https://www.digitaltrends.com/cool-tech/japanese-ai-writes-novel-passes-first-round-nationanl-literary-prize/.

3. Zhou Bo, Artificial Intelligence and Copyright Protection – Judicial Practice in Chinese Courts, WIPO, (Dec. 28, 2022, 03:39 PM), https://www.wipo.int/export/sites/www/about-ip/en/artificial_intelligence/conversation_ip_ai/pdf/ms_china_1_en.pdf .

4. Zhou Bo, Artificial Intelligence and Copyright Protection – Judicial Practice in Chinese Courts, WIPO, (Dec. 28, 2022, 03:39 PM), https://www.wipo.int/export/sites/www/about-ip/en/artificial_intelligence/conversation_ip_ai/pdf/ms_china_1_en.pdf.

5. Copyright Office Reiterates that Works Created by AI Cannot be Copyrighted, PEARL COHEN (Dec. 28, 2022, 03:39 PM) https://www.pearlcohen.com/copyright-office-reiterates-that-works-created-by-ai-cannot-be-copyrighted/#:~:text=The%20Board%20disagreed%20with%20Thaler%2C%20citing%20the%20COMPENDIUM,work%20must%20
be%20created%20by%20a%20human%20being.%E2%80%9D

6. U.S. COPYRIGHT OFFICE REVIEW BOARD, (Dec. 28, 2022, 03:39 PM) https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf

7. (Application was filed with the AI as author and the programmer as claimant by virtue of ownership of the AI)

8. Brian Cronin, AI-Created Comic Could Be Deemed Ineligible for Copyright Protection, CBR.COM (Dec. 28, 2022, 03:39 PM), https://www.cbr.com/ai-comic-deemed-ineligible-copyright-protection/.

9. Mohit Khanna, Comic Book Made By AI Loses Copyright Protection, INDIA TIMES (Dec. 28, 2022, 03:39 PM), https://www.indiatimes.com/technology/news/comic-book-made-by-ai-loses-copyright-protection-588388.html .

10. Copyright, Designs and Patents Act 1988, § 9 (3) (UK).

11. Copyright, Designs and Patents Act 1988, § 12 (7) (UK).

12. 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.

13. 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.

14. The Copyright Act 1957, Sec. 2(d)(iii) (India).

15. The Copyright Act 1957, Sec. 13 (India).

16. EBC v. D.B. Modak (2008) 1 SCC 1.

17. Section 2(d)(vi)

18. General Clauses Act 1897, Sec. 3(42) (India).

19. "Review of the Intellectual Property Rights Regime in India" Parliament of India, Rajya Sabha, Report No. 161, Department related Parliamentary Standing Committee on Commerce, at 29 (2021).

20. Parliament of India, Rajya Sabha, Report No. 161, Department related Parliamentary Standing Committee on Commerce, at 31 (2021).

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