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Human authorial involvement has always been a prerequisite to determine the eligibility of a work for copyright protection. Although technology has assisted in the creation of certain works, the claim to the ownership traditionally resided with humans. Nevertheless, with the advancements in computing power and introduction of technologies like Machine Learning (ML), automation, Internet of Things etc., works can be created without human supervision. Artificial Intelligence forms the backbone of many developed countries and has paved the way for unimaginable technological advancements. We have entered an era where machines can be employed to assist the judiciary, give medical assistance, etc.
The Day A Computer Wrote A Novel is an illustration of creativity by an Artificial Intelligence at the Kimagure Artificial Intelligence Writer Project. Recently, the People’s Court of Nanshan District, Shenzhen, China ruled that an article generated by an AI software is an original work and thus protected by copyright. Now, the application of Artificial Intelligence becomes perplexed in law when Artificial Intelligence is used to generate a copyrightable piece of work. Recently, WIPO has taken the efforts to hold a conversation on IP and AI by understanding the intersection of both at a number of different points. It further aims to develop IP policies to regulate the works generated by AI to stimulate creativity and innovation. While the WIPO is working on the conduction of further sessions on the subject, this article aims to evaluate the adequacy of Copyright law while dealing with the said issue.
Ownership under copyright law
Copyright Law stands on the pillar of originality of expression (not ideas) fixed in a permanent form. Section 2(d) of the Indian Copyright Act, 1957 is silent on tracing authorship with regard to literary or dramatic work, however, the general understanding from UK Copyright Law clarifies the author to be the architect of the work. It is pertinent to mention here that although the author is the first owner, there can be subsequent owners of a work since ownership grants unqualified rights with regard to the work which can be transferred or assigned.
Copyright Laws were created to incentivise owners by granting them economic as well as moral rights. Therefore, the scope of “ownership” is constructed to underline that an owner should be someone who could exploit these rights. In 2018, a US Court observed that a monkey cannot fall within the ambit of an “author” and hence cannot claim copyright over a photograph. There cannot be realization of rights under the law by an animal and therefore, the Court reaffirmed the connection between humans and original work.
Threshold of originality
The prerequisites of originality are much lower under Copyright law than those under the Patent law. Under the former, the only requirement for originality is that the expression must not be copied. Copyright law envisages the theory of “independent creation” that respects intellectual investment in creating an original work. This theory grants protection to two similar or even the same original works belonging to two different authors provided, both have generated their work without copying and by using their individual skill, judgement and labour.
The term “originality” lacks a uniform definition due to which different jurisdictions have different thresholds for granting copyright. UK’s threshold for originality is the lowest as they acknowledge copyright claims of authors who are able to show that while generating the work, “sweat of the brow” was involved. However, in Eastern Book Company v. D.B Modak, the Indian Courts adopted the theory of “exercise of judgement, skill and labour” observed by the Canadian Courts in CCH Canadian Ltd. v. Law Society of Upper Canada. Under this theory, the work must be non-trivial and there must be non-mechanical application of mind which makes the test even more important when derivative work is under scrutiny.
Whether AI generated works are eligible for protection under copyright law?
Indian Copyright Act, 1957 extends protection to two categories of work, namely;
- Original works: example- literary, dramatic, musical and artistic.
- Derivative works: example- films, sound recordings.
An AI is competent to write a book with or without human interference as well as it is capable of employing its judgement and skill while selecting and arranging data. Therefore, it would be correct to say that Artificial Intelligence is capable of creating both original as well as derivative work. It is apparent that AI generated work falls within the subject matter of copyright law. Therefore, the inquiry has to be with regard to the eligibility of Artificial Intelligence as an owner of such copyright.
Can copyright vest in an AI?
Artificial Intelligence is basically used to echo human behaviour. It helps the code to refine, learn and develop further on the basis of past familiarities and is also equipped with cognitive faculty to modify or create itself with the help of a mammoth of inputs. Therefore, AI is capable of refining its performance even in the absence of an explicit code, by self- evaluating the available data. It wouldn’t be wrong to state that AI can imitate humans to some extent but for the vesting of rights under copyright law, this is not enough. The economics of intellectual property rights is structured on the premise that the privileges and rights conferred upon an entity are exploited by it.
Indian Copyright law, under section 2(d), does not explicitly veto against AI from being an author. However, section 2(d)(vi) states that even in computer generated works, the author shall be the person triggering the work. The inadequacy of Copyright Act, 1957 surfaces as it rules out the possibility of machines creating works independent of human inputs. Therefore, the jurisprudence of “ownership” under copyright law has evolved to mean that the owner shall have certain rights in rem and shall be compensated for, in case such rights are violated. An AI can neither be expected to commercially assert its copyright nor to file for infringement of economic or moral rights. Therefore, an AI cannot be an owner under the existing copyright regime.
Mathematics of ownership with regard to work created by AI
There are two possibilities in relation to ownership in AI generated work:
- Copyright must vest with the coder, firstly, because of section 2(d)(vi) of Indian Copyright Act, 1957 and secondly, because he had exercised his skill, judgement and labour to create an intelligent AI that can create intellectual property. However, the matter becomes complicated when the AI is created during the course of employment.
- No copyright in the AI generated work, although beneficial for the public domain, would be discouraging for the coders to create more innovative AIs. Another anomaly attached to this approach is that the coder may secretly start selling the AI work to people for monetary benefits.
The highest degree of intellectual freedom and technological advancement has triggered our fascination of creating Artificial Intelligence. It is apparent that research and investments in Artificial Intelligence will only grow with time and would demand more economic share. Technology has made it possible for an intellectual property i.e. AI, to generate more intellectual property. However, the question with regard to copyright in the latter work has baffled Indian copyright scholars for some time now.
Should the coder of AI be considered the ‘author’ of such work? An affirmative answer to this question would shake the foundations of copyright law because the work is not an expression or conceptualisation of the coder. However, not assigning copyright to anyone and leaving it in public domain would be antithetical to the theory of incentivising the creator. A number of questions remain unanswered and it would be interesting to see how different jurisdictions deal with the situation.
(This post has been authored by Manika Sharma and Anand Vimal, LLM students at RGSOIPL, IIT Kharagpur)