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This blog is written by Priyanshi Gupta, a second-year, student at National Law University, Jabalpur.
ABSTRACT
The advent of artificial intelligence (AI) has truly revolutionized creative processes, enabling machines to autonomously generate content across various domains like art, music, literature, and software. This technological leap challenges traditional concepts of copyright ownership and authorship, posing complex legal and ethical dilemmas.
One of the central issues is determining who owns the rights to AI-generated works. Unlike human creators, AI operates independently or with minimal human input, blurring the lines of attribution. Current copyright laws, designed with human authors in mind, now face the task of adapting to this new paradigm where creative output can originate from non-human sources. AI's ability to mimic human creativity raises questions about the threshold of originality required for copyright protection. Should AI-generated works enjoy the same legal protections as those created by humans? This discussion concerns the fundamental aspects of creativity and the importance of human creativity in artistic expression.
Practical challenges in enforcement and compliance further complicate matters. Identifying the rightful owners and properly attributing authorship of AI-generated content can be complicated tasks, especially in collaborative or iterative AI environments. To address these issues effectively, we need a balanced approach that promotes innovation while also safeguarding intellectual property rights. This requires updating legal frameworks and developing innovative licensing strategies to ensure fair compensation for all stakeholders.
Our society can harness the potential of AI while upholding the principles of creativity and fairness in intellectual property by navigating these murkier waters thoughtfully.
“The sky, a painter’s grand design,
Of scarlet flame and amber's gleam,
Drapes twilight’s veil with colors fine,
In dusky shades, the day’s last dream.”
William Wordsworth
The above lines capture the beauty of the sun setting on the ocean perfectly in the words of the renowned poet, William Wordsworth. However, those familiar with his writings would beg to differ, and rightly so! This is an AI-generated paragraph, through a single prompt to an incredibly human-like AI chatbot – ChatGPT.
While this does allow us to relive the magic of the bygone era of poetry, the legal implications arising out of such works are manifold. For instance, who is the owner of this work of literature- the one who gave the prompt? The company that created ChatGPT? Or ChatGPT that analyzed the style of writing and accurately produced a work of the poet? Among other ethical considerations. This article will put forth compelling and relevant questions about AI and copyright infringement, faced by the legal world in current times, with answers to ponder upon, in order to contribute meaningfully to the legal discourse.
Before delving in this intricate web of questions it is essential to understand the importance of copyright and the laws associated with it. Copyright acts as a catalyst for progress by encouraging creativity and innovation. It allows creators to receive financial benefits from their work, which is justified given the significant talent, effort, and resources required to develop new ideas or products. Ensuring that creators are compensated for their contributions supports the ongoing generation of original and valuable content. In India, the Copyright Act of 1957 regulates this area.
Since the 1970s, computer programs have been used to create copyrighted works, but these programs were seen as just tools that assisted humans to generate content. Previously, the primary creative input came from people, with programs serving as tools akin to stationery. Now, however, the balance has shifted, with AI taking on a more central role in the creative process. AI is a machine's capability to carry out mental tasks similar to those of the human mind, like perceiving, reasoning, learning, and interacting. However, Generative AI models use neural networks to recognize patterns and structures in existing data, which they then use to create new and original content.
1. Ownership of Copyright in AI-Generated Works
The Copyright Act, of 1957 does not specifically harbor the mention of Artificial Intelligence. However, Section 2(d) (vi) reads that “author” means – “in relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created.”
Therefore, the person who causes the work to be created should be considered as the author. Given the broad definition of "author" under the law, the Copyright Act automatically extends to include the authors of computer-generated works. Copyright is conferred to the initial author or owner as soon as the work is fixed in a tangible medium.
For the first time in India, the copyright office has recognized an artificial intelligence tool, the RAGHAV Artificial Intelligence Painting App, as a co-author of a copyrighted artistic piece. Ankit Sahni, an IP lawyer and owner of the AI app, is also credited as a co-author and copyright holder. Sahni commissioned the painting titled ‘Suryast’ and believes that India might be the first country to officially acknowledge AI as an author of a copyrighted work.
Most jurisdictions, such as Spain and Germany, specify that copyright protection is only available for works created by humans. The global approach to AI and copyright varies. In the U.S., copyright protection is limited to human authors, and recent rulings have denied copyright for AI-generated works. The U.S. Copyright Office requires disclosure of AI use, rejecting some applications for AI-generated content. Contrastingly, China has granted copyright to AI-generated images, and the U.K.'s 1988 law could support AI works due to its provisions for computer-generated content.
2. Requirement for Human Authorship
In the case of Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd., the Delhi High Court explored the difference between natural and artificial persons. The court emphasized that an author must be a natural person because creation inherently involves human input. This reinforces the principle that copyright can only be awarded to human authors or creators unless a contract explicitly states otherwise.
In most countries, copyright protection is reserved exclusively for works created by human authors. This includes major jurisdictions such as the United States, where copyright is granted only to natural persons. Similarly, European Union member states, Australia, and Japan all mandate that authors be individuals to qualify for copyright protection.
This widespread legal consensus underscores the belief that intellectual property rights are inherently tied to human creativity and effort, excluding non-human entities such as AI from holding copyright. However, the United Kingdom allows for copyright protection of works generated by a computer even when there is no human author involved. Further, it is pertinent to discuss the Berne Convention which was adopted in 1886. As of November 2022, it was ratified by 181 countries. It focuses on safeguarding creative works and the rights of their creators. It grants authors, musicians, poets, painters, and other creators the authority to regulate the use, distribution, and conditions under which their works are utilized. In his 1992 lecture, Sam Ricketson examined how technological advancements could affect the concept of authorship under the Berne Convention, emphasizing that authorship should remain fundamentally human. Ricketson argued that although the Convention doesn’t explicitly define authorship, it inherently supports the idea that authors must be human, as reflected in its emphasis on human-created works.
He cautioned against broadening exceptions like those for cinematographic works and highlighted concerns about purely computer-generated outputs lacking sufficient human intellectual input for copyright protection. Ricketson opposed shifting the focus of copyright solely to commercial value, advocating instead for maintaining the human-centered approach of the Convention and suggested that Berne member states are not required to extend protection to works without human authorship.
3. Exercising and Enforcing Copyright for AI-Generated Work
Since its debut in the fall of 2022, ChatGPT has triggered a surge in AI advancements, leading to models like GPT-4, Claude by Anthropic, Google Gemini, and OpenAI’s new Sora, which generates short videos from text prompts. Despite these significant advancements, legislative progress has not kept up with the same speed. It is essential to understand the implications of granting copyright, some of which are listed below-
Copyright laws are designed to incentivize and reward human creativity. If AI is granted copyright, it might undermine the original intent of copyright, which is to protect and promote human intellectual labour and creativity.
If AI could hold copyright, it might lead to economic implications, including the potential for AI-generated works to flood the market, affecting the economic value of creative works and potentially leading to issues with fair use and licensing.
AI systems operate based on algorithms and data provided by their developers. Granting copyright to AI could complicate matters of accountability, especially in cases where the AI's outputs might infringe on existing copyrights.
Section 22 specifies that copyright lasts for the author’s lifetime plus 60 years, starting from the beginning of the calendar year after the author’s death. For works created by multiple authors, the 60-year period is based on the death of the last surviving author. Interpreting Section 22 literally suggests that AI-generated works could never enter the public domain, since, unlike humans, AI does not die and is thus considered immortal.
Additionally, the Copyright Act of 1957 in India was updated in 1994 to address scenarios where literary, dramatic, musical, or artistic works could be produced by computers. Section 2(d)(vi) was added to define the authors of such "computer-generated works" as "the person who causes the work to be created." The determination of whether AI can be considered an author depends on how the term "person" is interpreted in this context.
In the Delhi High Court case of Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd., the issue was whether the Central Board of Secondary Education (CBSE) could hold copyright over a set of question papers. The Court concluded that as an artificial entity, the CBSE could not claim copyright unless it demonstrated that it had employed individuals to prepare the question papers. This decision underscores that, under Indian copyright law, only natural persons can claim authorship. This position was reinforced in Tech Plus Media Private Ltd. v. Jyoti Janda wherein the Court held that authorship cannot lie in a juristic person, though it may be the copyright owner.
This interpretation was upheld by the High Court of Delhi in 2019, in Navigators Logistics Ltd. v. Kashif Qureshi & Ors. In this case, copyright was sought for a list generated by a computer, but the Court rejected the claim, among other reasons, due to the absence of human involvement. Consequently, India's stance aligns with that of the USA, where authorship cannot be attributed solely to AI.
4. Threshold of Originality for Copyright Protection
Originality is the fundamental criterion used by copyright systems worldwide to assess whether a work is eligible for copyright protection. The standard for originality differs across jurisdictions. In India, Section 13(1) of the Copyright Act of 1957 states that copyright applies to "original literary, dramatic, musical, and artistic works." However, the Act does not define or provide a test for determining the originality of a work, leaving it to the courts to establish the level of originality needed for copyright protection. Two tests are to be followed to decide the “Originality” of a work:-
-Non- copying requirement (completely objective test)
-Threshold/Degree of originality(varies from court to court)
In India, the approach to copyright originality has evolved over time. Initially, India followed the "sweat of the brow" doctrine, which emphasized the author's effort and labour rather than creativity. This meant that copyright protection was granted based on the diligence invested in creating a work, even if it lacked significant originality.
However, in recent years, India has shifted to a "modicum of creativity" standard. This change was notably marked by the Supreme Court's decision in Eastern Book Company v. D.B. Modak, where the court introduced the requirement of minimal creativity for copyright protection. The court ruled that while editorial contributions could be copyrighted, court judgments, being part of the public domain, could not. This shift reflects a more nuanced approach, recognizing both the author's effort and the necessity for some degree of creative input for a work to qualify for copyright protection.
5. Legal Protections for AI-Generated Works Compared to Human-Created Works
AI-generated works should receive some form of legal recognition, though it should not be under traditional copyright law. Given that AI can quickly process and analyse extensive data to produce creative outputs, its capabilities are quite different from those of human creators, who invest significant time and effort into their work. Granting AI the same level of protection as human-created works could inadvertently diminish the value placed on human creativity and effort. A more balanced approach would be to establish a distinct form of legal protection for AI-generated works. This would recognize the innovative contributions of AI while maintaining the integrity of traditional copyright protections for human-created art. By doing so, we can ensure that the unique attributes of human creativity are honoured and preserved, while also addressing the evolving role of AI in the creative process. Several factors should be considered when granting legal protection to AI-generated works. For instance, the work should demonstrate originality and be based on data that was lawfully acquired, avoiding any copyright infringement. Additionally, the extent to which AI was utilized in the creation process should be evaluated. By ensuring these criteria are met, we can provide a framework that acknowledges the contributions of AI. Countries should consider this nuanced approach to safeguard both human and AI contributions, fostering a legal framework that respects and values the distinct nature of each. This way, we can support innovation and creativity in a manner that acknowledges and differentiates between human and AI-generated works. Countries should create detailed laws to address the legal protection of AI-generated works. This will help prevent potential misuse of existing legal gaps and ensure that protections are both effective and fair for all stakeholders involved in the process. In this way, our society can effectively navigate the era of AI.
BIBLIOGRAPHY:
The Copyright Act, 1957
McKinsey&Company, ‘What is AI (artificial intelligence)?’ (McKinsey&Company, 3 April 2024) <https://www.mckinsey.com/featured-insights/mckinsey-explainers/what-is-ai.> accessed 2 August 2024
NVDIA, ‘What is Generative AI?’ (NVDIA) <https://www.nvidia.com/enus/glossary/generative-ai/ > accessed 2 August 2024
Manish Jindal, ‘ Difference Between Authorship and Ownership in Copyright Law’ ( Bytescare, 24 June 2024) <https://bytescare.com/blog/difference-between-authorship-and-ownership-in-copyright-law#:~:text=Initially%2C%20the%20author%20is%20the,publishing%20company%20through%20a%20contract> accessed 2 August 2024
Sukanya Sarkar, ‘Exclusive: India recognises AI as co-author of copyrighted artwork’ ( Managing IP, 5 August 2021) <https://www.managingip.com/article/2a5czmpwixyj23wyqct1c/exclusive-india-recognises-ai-as-co-author-of-copyrighted-artwork> accessed 2 August 2024
Rachel Kim, ‘AI and Copyright Law in 2023: Federal Government Activities’ (Copyright Alliance 3 January 2024)
Rupendra Kashyap Vs. Jiwan Publishing House Pvt. Ltd. 1994 (28) DRJ 286
World Intellectual Property Organization, ‘Berne Convention for the Protection of Literary and Artistic Works’ (World Intellectual Property Organization)
Morton L, ‘People Not Machines: Authorship and What It Means in the Berne Convention’ ( Springer Link 29 January 2018)
Tech Plus Media Private Ltd. v. Jyoti Janda (2014) 60 PTC 121
Eastern Book Company v. D.B. Modak AIR 2008 SUPREME COURT 809
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