This article is written by Swayamsiddha Das and Subham Mund, students of KIIT SCHOOL OF LAW.
Coming from a generation where everything is tech-driven, Artificial Intelligence plays a very important role in the evolution of modern software over the coming years ahead. If you are a Marvel Fan then, Artificial Intelligence(AI) is something you are already familiar with, the only difference is that whatever Iron Man did with the help of AI in the Fiction World is now turning into a reality.
The concept of Artificial Intelligence was coined at the Dartmouth Conference in the year 1956. This millennial concept refers to an algorithmic tool that can compute or can replace human intelligence required in the completion of certain tasks. Although the hype around the buzzword “Artificial Intelligence” is concentrated or centered with the terms like Software, Deep Learning, Algorithms, etc. It is much more than that.
Artificial Intelligence is no more restricted to computing algorithms, robots, Alexa, etc. In simpler terms, it is now no longer a tool or computer program which is dependent on human commands and intervention. Rather it has now been revolutionized, to make an independent and creative decision without any human intervention.
This revolutionized version of AI is now used for various fields but mainly this technology is being exploited in the Entertainment field. Creators have started using AI to produce and generate unique pieces in Music, Gaming, Journalism, Movies, etc. but then, the question that pops up is that are the works created by AI protected?
When we talk about any literary or artistic work be it music, paintings, films, etc. we are all familiar that these works created by the owner are protected under the Copyright Act provided that it is originality and creativity are present in it. But so far as the Act is concerned, protection from infringement is only provided to humans. The Act is completely silent about protecting from infringement by Artificial Intelligence, Robots, or to say any work created apart from humans.
As questioned above, whether the works generated by AI should be protected under the Copyright Act? or who owns authorship of the work generated by AI? remains an area to focus upon.
The main objective of the copyright laws is to give protection to all original creation of works which has an element of human mind and intellect. In the Indian domain, copyright protects the expression of the creative and original work of the author and not his idea.
Section 2(d)(vi) of the Copyright Act 1957 deals with work created by computer and further provides that the person who is responsible to cause the work is the “author”.
This provision somehow deals with the idea of AI-generated work with human intervention, and it is clear that if there is human intervention in the work generated then ownership subsists with the programmer. but it is not very articulate about the works created by AI without human intervention. This somehow leads to a grey area that is still unanswered.
But what will be the problems faced if ownership is granted to the AI-generated works created without human intervention?
To answer this question, we must understand how works are created and produced by AI, it cannot be ignored that computers have been a great contributor to the production of artistic works and literary works for a very long time. but then being witness to the IT evolution over the few years, we might pause and rethink our dynamics between computers and creative thinking. Currently, machine learning has become a subset of AI, this enables the machines/systems are to catch up learning without any additional data/programming fed by the Humans.
Computer programs and Machine Learning are directly proportional to each other, as computer programs are created to serve the purpose of machine learning. The algorithms associated with these kinds of programming are designed in such a way so that, the machine can take in the inputs, process them, and then make decisions accordingly. These decisions can be directed or independent. The machine learning algorithms learn from the inputs provided to them by programmers. They learn from these data to generate a new piece of work, making independent decisions throughout the process to determine what the new work looks like.
This means that in the case of independent decisions taken by AI, it is the computer program that is generating the new work, even if there is an input to set parameters by the programmers. but this does not hide the fact that AI even if capable to make an independent decision is not dependent on human-fed algorithms and programming, the work that is created is just an advanced/modified version of the given input fed by the programmer. Hence it is safe to say that AI-generated work lacks the element of originality.
Again this leads to another question is will this fall under the Doctrine of Modicum of Creativity?
The idea of Doctrine of Modicum of Creativity stipulates that originality will subsist in work if there is a sufficient amount of intellectual creativity and judgment is involved in the creation of that work. As seen above we know that AI is capable to generate an advanced version of the given input but does it have the judgment capacity? To this, the answer is “No” as it only compiles and generates work which already presents in the public domain without any skill and judgment.
Now answering the main question, whether AI-generated work is given protection under the copyright laws? The answer is negative as the current laws and doctrines are not well equipped, and the Indian laws have always has given importance and value to human involvement. This does not mean that copyright can’t be granted to the AI-generated work created without human intervention, the copyright to these work can be granted to the person owing the AI software. Let’s understand this with an example: if Alexa creates work without any human intervention, then the copyright of that work subsists with the person owning the AI software of Alexa and not the AI.
Authorship and ownership are two concepts that are integral to copyright. As per the general rule of law under normal circumstances, the author is regarded as the first owner stated under section 17 of the copyright act. Keeping this in mind many people assume that authorship and ownership are the same but this is not the case. This can be explained using an example. Let’s say a person is hired by another to do a task in exchange for some form of consideration. In this situation, the authorship of the work shall remain with the author who is acting on the instance of the other but the ownership will stay with the person who commissioned the work, to begin with. Although the protection of the rights of the author is considered extremely essential in the field of IPR the author is not clearly defined. But with the help of relevant case law, it can be observed that for a work to be protected under copyright it needs to have human interference. Which means that the author is required to be a human being.
This can be explained with the following case which is popularly known as the monkey selfie case. The facts of the case state that a monkey took a selfie of himself using the device of a person and that person used the same as his property. This was then challenged in the court of Law and the court stated that the selfie clicked by the monkey is not the copyright of the owner of the camera. This is the case is fairly recent as it took place in 2016. The decision of the court exhibited that copyright requires human intervention.
AI and computers in general have played a major role in facilitating humans and assisting them in realizing their ideas. However, in recent years the technology has taken a giant leap forwards with AI which is capable of thinking and taking decisions on its own. Traditionally the authorship of a work is granted to the person who creates the intellectual property and machines only operate to enable the person to attain the desired outcome. In simple terms, humans apply their intellectual minds and use the tools at their disposals such as machines and software in a specific way to get their job done. But this distinction seems to get blurred with each passing day. As discussed above the AI is capable of thinking and taking creative decisions on its own this results in the reduction or elimination of the human application of the intellectual mind altogether. This creates a tricky situation with regards to granting of the authorship rights.
Authorship is essential for intellectual property rights. As we know that all intellectual property rights are negative rights intended to protect the interest of the creator and rewarding them for their work it is very difficult to decide who should be regarded as the author of the work if there is no human contribution in the work and it is entirely created by the AI. This is important because it involves monetary gain. There is no well-settled law regarding this but different scholars have different opinions relating to this.
People have divided opinions on this matter. Few of them believe that copyrights can only be provided to human creations alone which means that AI creations do not fall under the scope of copyrights and hence is open for everyone to use. Now the issue with this theory is that AI is man-made that is created by a human being which means that there was an application of mind, skill, and resources to develop the AI. AI is created to get some profit out of it or for a specific function. If everything created by an AI is not protected under intellectual property rights then the interest of the creator of the AI is jeopardized. This leads to loss of interests due to lack of incentive thus defying the purpose of the existence of intellectual property rights in the first pays.
Others believe that authorship should be bestowed upon the creators of AI. The basic underlining principle supporting this line of thought is that the AI is self-sufficient and capable of acting on its own but a lot of effort and resources are put into the creation of AI therefore the makers of the AI should get the fruits of their labor by getting the copyright of the work created by AI. but then it is very important to assess whether an AI can be a legal entity or is capable of being an author? Traditionally AI was seen as nothing more than a tool to assist humans in doing their work but at present, the answer to this question is much more complex. The basic underlining principle under AI is to put the ability to make decisions and the ability to think. In simple words, AI is an attempt to put human insight into machines. This seemed far-fetched a few years back but since then technology has come a long way.
In 2016 Sophia an AI-enabled robot was developed and Saudi Arabia granted it citizenship status becoming the first country ever to give citizenship to an AI humanoid. On the surface, it looks very straight forward but it is much more complex than it seems. Citizenship entails several rights to which Sophia is entitled to. Now the question arises whether Sophia can be considered as a legal entity capable of owning its copyright.
In the context of the Indian legal system, it has granted legal entity status to many artificial people like companies, partnerships, etc but AI does not cut, as it is only seen as a tool for human assistance. The development of AI has come a long way but it is still premature in its development.
This is uncharted territory for the scholars of law as the creation of AI is relatively new. So there is no well-defined law governing the sphere of copyright issues.
From the above, it is seen that the current Copyright laws are very restrictive in granting work of AI copyright. But it is essential to know that AI may qualify as one of the essential included under copyright I.e. “Original Work” as AI also does structuring and compilation of the data. Even though we consider that the AI does lack skill and judgment and only compiles things that are out there in the public domain but then we miss the factor that, AI creates works by the virtue of its parameter and programming, this can be considered as the usage of skill and judgment and hence can be classified under original work.
As discussed above it is seen in most of the cases that AI is dependent on the programmer for codes from which it can generate work, but this doesn’t mean that the programmer should be the author because it sets the codes for the AI. The fact should be acknowledged that AI can generate work without human intervention during the process of creation.
Having put in a word for AI, there is a certain probable issue that may crop up and those are relating to Copyright Infringement and liabilities. To determine how can AI deal with the above issue first, we need to look out if there is any possible way out.
- There can be a different section mentioned in the Act that deals with the work generated by AI specifically.
- There can also be a section that determines the question of authorship and ownership in this regard like:
In the case of AI-generated work created without human intervention, the authorship can be given to the owner i.e. the programmer and the ownership can be given to the AI itself. Similarly in the case of works generated by AI with human intervention the authorship can subsist with AI and the ownership with the programmer.
But as the old saying goes easier than said to be done, to consider all the valid points the main thing required is that the Copyright laws must recognize AI as a legal entity. If done then it will be easy to determine the issue relating to Copyright Infringement and liabilities. Now having discussed the scope of handing AI works copyright let’s see what would be the probable cons of giving the AI copyright.
In casework is created by an AI with human assistance then the author is the human. However, things get tricky when work is generated by AI completely on its own without any human intervention. The law in India is not clear on this subject but for the sake of the discussion let us say hypothetically that AI is accepted as a legal entity and the works created by it can be copyrighted. Some of the issues that may be faced are as follows:-
- Originality- Originality of work is one of the necessities for copyright. One of the major concerns concerning AI-created work is that many people believe that AI-created work is not original work because AI is a human-written program and it is limited by the parameters entered by the programmer.
- Issue of infringement- AI itself is not a legal entity so in case there is an infringement on the part of the AI it will be very difficult to place the liability
- Moral rights. The authors not only has pecuniary right but also moral rights as well. Moral rights include the right to integrity and the right to paternity. If AI is made by the author then these rights will lose their meaning as these rights are meant to cater to the emotional needs of the author since AI does not have any emotion these rights become redundant.
- As per the current law of copyright in India every copyright holder is entitled to royalty this right cannot be waived. Where AI is the author there are many unanswered questions such as who will set the royalty amount and how will the amount be disbursed.
Considering the advancement in technology and the potential of AI it is not a bad idea to give recognition to the work generated by it and include it in the copyright law. Currently, AI does not fit in the definition of an author besides that AI does not even qualify as a legal entity. Saudi Arab as seen above is one of the pioneers in recognizing the potential of AI by giving an AI robot citizenship Status. We can expect a massive change in this regard shortly. In addition to that the Copyright Act was drafted in 1957 and AI has gained prominence way past that. However, having a balanced approach for this new domain of work is equally necessary.
- Naruto v. Slater, No. 16-15469 (9th Cir. 2018)
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