CAN AI-CREATED WORKS BE GIVEN COPYRIGHT PROTECTION?

By Ms. Harini. P.M.

Introduction:

The human zeal to push the limits of our own intellect has led to a significant milestone in the history of innovation- the development of Artificial Intelligence. AI is the capacity of the computers or other machines to exhibit or simulate intelligent behavior.[i] Simply put, it is the ability of a machine to imitate intelligent behavior. With new hurdles arising in the fields of finance, medicine, science, industry and education, AI technologies are stepping up to provide advanced solutions.[ii] Innovation in AI has reached a point where computers are producing, what can be deemed to be intellectual property, across the spectrum of original creation such as music, art, design etc. This article analyzes the potential of providing copyright protection to AI generated works in the foreseeable future.


AI As Creators:

Traditionally, copyright protection has been granted in instances where technology has been used as a tool to assist a person to produce a work. Examples of computer assisted works include the use of word processing programs to produce texts, usage of camera to produce photographs etc. In these circumstances, the authorship of copyright in computer assisted works was not in dispute since the technology/software was merely a device that supported the creative process, very much like a pen and paper. However, recent advances in machine learning and the growth of computing power have progressed to such a situation that AI can now create works which are, debatably independent of human creativity. At present, there are machines which automatically create works which would qualify for a copyright protection, if it were produced by a human. This raises the serious question of whether these AI-created works can be given protection under copyright law.

There have been various high degree computational creative innovations until now and this has provoked debates all over the world for the re-examination of copyright standards for AIs. Notably, a San Francisco Court[iii] denied a copyright to a macaque monkey who clicked selfies which went viral. With copyrights for animals out of the picture now, a similar situation has arisen for AIs.


Question Of Authorship In Ai Generated Works:

Copyright subsists in original work of authorship and therefore authors are the starting point and central focus of any discussion on copyright law. The major concern in computer generated works is who is to be conceived as the author when the work is created by a non-human author. When it comes to works that are created by AI, their authorship will be contentious under Indian copyright laws. Undoubtedly, a human’s involvement is required in kick-starting the AI’s creative undertaking, however the process to determine who the author or owner is when the AI steps in to play a pivotal role in the creation of the work, continues to remain a grey area.

The Monkey Selfie case, discussed above, raises important issues that will likely become more sensitive in the foreseeable future. The subject of non-human authorship is not only about whether a monkey can be provided with copyright protection for the pictures that it takes, but whether increasingly sophisticated technologies, under the umbrella of artificial intelligence, will result in the widening of the understanding of what an author is. The law as it is currently structured cannot vest ownership of the copyright in a computer-generated work in the work’s author-in-fact due to lack of legal personhood. In People ex rel Nonhumans Rights Project, Inc v. Lavery[iv] & in Matter of Nonhuman Rights Project, Inc. v. Stanley[v], the Court ruled that a chimpanzee cannot be attributed with legal personhood as it is incapable of bearing any legal responsibilities and societal duties. An analogy can be drawn here between animals and AI’s as non-human authors and because of lack of capacity to hold rights and duties neither of them can be considered as authors for the purpose of protectable works. Even if the concept of non-human authors gets recognition in copyright law the puzzling questions which arise here is, who will claim and enforce the economic and moral rights of the non-human author? Who will assign and license the economic rights? How an infringement suit will be filed in a court of law in case of violation of copyright and who will be entitled to the remedies? Therefore, there is a pressing need to re-consider the IPR laws to ascertain how the laws should address these AI systems, the products they produce and the challenges they pose for the existing copyright regime.[vi]


Inadequacy Of Copyright Law To Address Ai Generated Works:

Section 2(d) of the Indian Copyright Act, 1957[vii] defines the term “author” in the context of certain copyrightable works but does not make any reference to the legal personality. The absence of reference of any artificial person in section 2(d) primarily indicates that only natural persons can be protected as authors under the Copyright Act.[viii]Therefore, the current legal framework may not effectively deal with/prescribe for creation of works where the actual creator is not a human or a legal person. Thus, when it comes to works that are created by AI, their authorship would be controversial under Indian copyright laws. A draft report of the European Parliament to the Commission on Civil Law Rules on Robotics[ix] remarks that in the future, AI will leave no stratum of the society untouched and also calls on the Commission to elaborate yardstick for an “own intellectual creation” for copyrightable works produced through AI. Thus, with the striking growth of AIs in every industry of the market, it is incumbent upon IP theorists and lawmakers to design laws which can be adopted in a world with AI’s.[x]


Conclusion:

From autocorrecting our text messages to saving people's lives, AI has only begun influencing our lives in an impressive way. The AIs today execute human like functions in every sphere. It would not be amusing if, tomorrow they can perform functions better than humans and take their decisions themselves. But IP laws are far from matching the progress being made in AIs.[xi] Currently IP law focuses only on human actors as IP creators/infringers. It is time now, for policymakers to come up with standards and liability criteria when it comes to IP surrounding AIs.

[i] https://oed.com/view/Entry/271625?redirectedFrom=artificial+intelligence#eid [ii] Ref: Narayani Anand, Artificial Intelligence as the New Creator- Changing Dimensions in Copyright Law, 6 CMET (2019) 103. [iii] Naruto v. Slater, case no. 15-cv-04324-WHO (N.D. calif. 2016). [iv] People ex rel Nonhumans Rights Project, Inc v. Lavery, 124 A D 3d 148 (2014). [v] Matter of Nonhuman Rights Project, Inc. v. Stanley, NY Slip Op 31419 (U) (2015). [vi] Avishek Chakraborty, Authorship of AI generated works under the Copyright Act, 1957: An Analytical Study, (2019) 8.2 NULJ 37. [vii] The Copyright Act, 1957, ACT NO. 14 OF 1957, Acts of Parliament, 1957. [viii] Basheer S., Artificial Intelligence and Intellectual Property: Mind the Machine!, SpicyIP (July 28, 2020, 7.00PM), https://spicyip.com/2016/12/artificial-intelligence-and-intellectual-property-mind-the-machine.html. [ix]https://www.europarl.europa.eu/RegData/etudes/ATAG/2017/599250/EPRS_ATA(2017)599250_EN.pdf [x] R. Kurzweil, The Age of Intelligent Machines, 272-275 (MIT Press: 1990). [xi] Vaishali Singh, Mounting Artificial Intelligence: Where are we on the Timeline, (2018) PL (IPR) June 108.

134 views0 comments

Recent Posts

See All