Copyright Issues for AI Generated Work 

Introduction 

The rapid advancement of artificial intelligence (AI) has profoundly impacted numerous aspects of modern life, including the creative industries. AI systems such as ChatGPT, Midjourney, and AIVA are now capable of generating content that spans a wide array of formats, from written articles and novels to music compositions and visual artworks. This transformative capability introduces complex questions regarding authorship, ownership, and the protection of AI-generated works under existing copyright laws.

Traditionally, copyright law has been designed to safeguard the creative expressions of human authors. Rooted in principles of originality and creativity, these laws ensure that individuals who create unique works are granted exclusive rights to their use and distribution. International agreements like the Berne Convention emphasize the protection of literary and artistic works produced by human intellect. However, the emergence of AI-generated content challenges these foundational concepts. If a machine generates a work, can it be considered the author? If not, who should hold the rights to the work produced by AI?

The Berne Convention for the Protection of Literary and Artistic Works, commonly known as the Berne Convention, is an international agreement that establishes a framework for the protection of copyright across member countries. First adopted in 1886 in Berne, Switzerland, the convention has been revised several times to address the evolving landscape of creative works and intellectual property. The Berne Convention establishes that copyright protection is automatic and does not require any formal registration. This means that an author’s work is protected as soon as it is created and fixed in a tangible form.

The Berne Convention has played a crucial role in shaping the global landscape of copyright law. By harmonizing the basic principles of copyright protection, it has facilitated the international exchange of creative works while ensuring that authors’ rights are respected and upheld worldwide. The convention currently has over 180 member countries, making it one of the most widely adopted international treaties.

In the context of modern technological advancements, such as the rise of AI-generated content, the principles established by the Berne Convention are being tested and re-examined. The fundamental notion that copyright protection is inherently tied to human authorship is particularly relevant as legal frameworks strive to address the complexities introduced by AI.

At the heart of this debate is the issue of authorship. Current copyright laws are predicated on the notion that creativity is a uniquely human attribute. AI systems, despite their sophistication, function through algorithms and data inputs provided by humans. This raises critical questions: should the developers of the AI, the users who input data, or perhaps no one at all, be recognized as the author of an AI-generated work? The absence of clear legal guidelines in this area creates significant uncertainty, potentially leading to disputes and hindering innovation in the creative industries.

Ownership of AI-generated works presents additional challenges. If AI cannot be considered an author, then determining ownership becomes a complex issue. Possible claimants include the developers of the AI, who design the algorithms and models; the users who utilize these AI tools to generate content; or, as some argue, no one, suggesting that AI-generated works should fall into the public domain. This ambiguity not only affects individual creators but also has broader implications for businesses and industries that rely on AI for content creation.

The intersection of AI and copyright infringement adds another layer of complexity. AI systems trained on extensive datasets may inadvertently replicate elements of existing copyrighted works, raising the potential for infringement claims. The opacity of AI processes exacerbates these concerns, making it difficult to ascertain whether a new work is truly original or derivative of existing materials.

Different jurisdictions are beginning to address these issues in various ways, yet there is no global consensus. For example, the United States Copyright Office currently does not recognize AI as an author, whereas other countries are exploring more flexible approaches. The European Union has initiated discussions on creating a legal framework to address AI and intellectual property, highlighting the need for international cooperation and harmonization of laws.

In summary, the rise of AI-generated works presents significant challenges to traditional copyright systems. As AI technology evolves, legal frameworks must adapt to adequately protect the rights and interests of all stakeholders. This requires a balanced and thoughtful approach, involving legislators, legal experts, technologists, and the creative community, to navigate the complexities of AI and copyright. Through collaborative efforts, we can address the intricacies of authorship, ownership, and infringement in the era of artificial intelligence.

Is it possible to apply copyright to AI -generated work?

Since AI creates art using computers, algorithms, and data, there is no singular artist who can be held accountable for producing a piece of AI-generated art. Consequently, AI-generated artwork is generally not subject to copyright protection under standard norms. Most countries, including the United States, do not grant copyright protection to art generated by artificial intelligence. Since copyright protection is traditionally granted to works created by humans, AI-generated works lack legal protection and can be freely used by anyone without violating ownership rights.

In the United States, a federal judge ruled in 2023 that AI-generated artwork cannot meet federal copyright standards because “Copyright law is ‘limited to the original intellectual conceptions of the author’.” With no human author, there is no copyright. It is irrelevant whether a human made the computer system or scripted the algorithm for the AI—if a human or group of humans did not originally create the artwork, it cannot be copyrighted in the United States. Many countries worldwide follow similar practices, making AI-generated artwork ineligible for copyright protection.

For instance, Deep AI, an AI art generator, states in its terms of service that all content created using its AI tools is free of copyright and can be used for all legal purposes, including personal and commercial gain. Similar terms are found in the conditions of other AI art generators.

Although it is possible to apply copyright to AI-generated art, several complexities and considerations arise due to the unique nature of such works:

1. Authorship: Copyright law typically grants protection to works created by human authors. Determining authorship for AI-generated art is challenging. In some jurisdictions, the creator of the AI system or the person who trained or guided the AI may be considered the author. In other cases, there may be debates over whether the AI itself can be considered the author.
2. Originality: Copyright protection requires that a work be original and possess a minimal level of creativity. While AI-generated art may be unique and visually striking, questions arise regarding whether it meets the threshold of originality traditionally associated with human-created works.
3. Human Involvement: The level of human involvement in the creation process of AI-generated art varies significantly. If a human provides significant input, such as selecting the input data, training the AI model, or curating the final output, their creative contribution may be sufficient to qualify for copyright protection.
4. Ownership: Determining ownership of copyright in AI-generated art depends on various factors, including contractual agreements, employment relationships, and intellectual property laws. Clear agreements should outline who owns the copyright in AI-generated works to avoid disputes.
5. Derivative Works: AI-generated art may be based on pre-existing copyrighted material, such as images or texts used for training the AI model. Creating derivative works from copyrighted material raises issues of infringement and fair use, requiring careful consideration of copyright law.
6. Duration of Protection: Copyright protection typically lasts for the life of the author plus a certain number of years. However, determining the duration of protection for AI-generated art may depend on factors such as the legal status of the creator and the jurisdiction’s laws on AI-generated works.

While applying copyright to AI-generated art presents challenges, many creators, organizations, and legal experts are exploring ways to adapt copyright law to accommodate the unique characteristics of AI-generated works. Clear legal frameworks, licensing agreements, and ethical guidelines can help ensure proper protection and attribution for AI-generated art while fostering innovation and creativity in the field.

Relationship between copyright infringement and AI 

• Copyright work used for training purposes:
  • AI systems like ChatGPT, often require large amounts of data to train their algorithms effectively.
    • The copyrighted work includes images, texts, and music, this leads to the rising concern in regard to copyright infringement.
  • AI technologies can be used to replicate or mimic existing copyrighted works. 
• Fair Use and Transformative Use:
  • Fair use is a legal doctrine of the US (as US Supreme Court observed recently) that allows for limited use of copyrighted material without permission, under certain circumstances.
    • Determining whether an AI-generated work qualifies as fair use requires considering factors such as the purpose, nature, amount, and effect of the use.
  • Transformative use, which involves adding new meaning or expression to a copyrighted work, is often a crucial factor in fair use analysis.
• Liability and Responsibility:
  • Determining liability for copyright infringement in AI-generated works can be complex, involving questions about the role of AI developers, users, and the AI itself.
  • The responsibility for ensuring compliance with copyright law rests with both the creators and users of AI-generated works.

In early 2023, Getty Images opened a lawsuit against an AI generator that was suspected of using unlicensed Getty Images photos to create AI images. The image so created has no copyright, the photos which are used to create them had licenses of copyright which were not adhered to.

If we are an artist, we can protect ourselves from copyright infringement of our own original works by AI generators by applying for a Creative Commons license for our creative works. we can also follow the best practices for protecting your images from AI generators.

While it will not stop an AI company from stealing our work if they’re intent on doing so, it may help you prove copyright infringement if needed.

Commercial impact 

The commercial impact of copyright issues for AI-generated work can be significant and can affect various stakeholders in different ways:

1. Creators and Artists:
   • Monetization: Copyright protection enables creators to monetize their works by licensing them for use in various commercial applications, such as advertising, merchandise, and publishing.
   • Market Access: Clear copyright ownership and protection provide creators with market access, allowing them to sell their AI-generated art to galleries, collectors, and buyers without fear of unauthorized copying or distribution.
   • Value Proposition: Copyright recognition enhances the perceived value of AI-generated art, making it more attractive to buyers and investors in the art market.
2. AI Developers and Technologists:
   • Innovation Incentives: Clear copyright laws incentivize AI developers to invest in research and development to create advanced algorithms and tools for generating innovative and commercially viable art.
   • Market Opportunities: Copyright protection creates opportunities for AI developers to commercialize their technologies by licensing them to artists, studios, and businesses for creating AI-generated content.
   • Brand Reputation: Building a reputation for developing AI technologies that respect copyright laws and ethical principles can enhance the brand image and market competitiveness of AI companies.
3. Art Galleries and Dealers:
   • Curation and Sales: Copyright protection enables art galleries and dealers to curate and exhibit AI-generated art, attracting collectors and buyers interested in acquiring unique and valuable works.
   • Market Differentiation: Offering AI-generated art with clear copyright ownership and provenance can differentiate galleries and dealers in the competitive art market, enhancing their reputation and attracting clientele.
4. Consumers and Collectors:
   • Investment Value: Copyright recognition adds value to AI-generated art as a collectible and investment asset, providing assurance to buyers that their purchases are authentic and legally protected.
   • Quality Assurance: Clear copyright ownership and protection ensure the authenticity and quality of AI-generated art, reducing the risk of counterfeit or unauthorized reproductions in the marketplace.

Should copyright be granted to AI Generated Literary and Artistic Works, or Should Human Involvement be Mandatory?

For a literary or artistic work to qualify for legal protection, it must exhibit a certain level of creativity attributable to the author. Authorship is intrinsically tied to the need for originality and personal creative input in the work’s creation. This criterion is essential for determining a work’s eligibility for copyright protection. The Berne Convention, a foundational international treaty for copyright protection, ensures that literary and artistic works receive global protection, benefiting authors and their successors in title. By empowering authors, the Berne Convention grants them the authority to enforce their rights and protect their creative expressions. It encourages the clear indication of the author’s name or pseudonym, thus eliminating any ambiguity regarding the author’s identity. As a result, the Berne Convention plays a pivotal role in promoting the protection, recognition, and preservation of authors’ contributions to literature and art.

Case Law

A case which is famously known as Raghav Case. In 2020, the Indian Copyright Office dealt with a significant case involving an AI system named “Raghav” and its effort to obtain copyright registration for an artwork titled “Suryast.” Initially, the application was rejected due to the absence of a human author. However, the painting eventually received protection after a natural person was designated as a co-author alongside “RAGHAV.” A withdrawal notice was subsequently issued to clarify the legal status of “RAGHAV,” underscoring the uncertainty regarding AI’s eligibility as an artist under the Copyright Act.

In Tech Plus Media Private Ltd v. Jyoti Janda, the Delhi Court ruled that “the plaintiff, being a juristic person, is incapable of being the author of any work in which copyright may exist.”

In Navigators Logistics Ltd. v. Kashif Qureshi, a copyright claim on a list compiled by a computer was denied due to the absence of human intervention. The ruling emphasized that human involvement in the creation process is essential for copyright protection in India.

The UK High Court in case of Nova Production Ltd v. Mazooma Game Ltd, where the authorship of a video game produced by AI was contested, the court ruled that the author of the work was the programmer. The court determined that the programmer was responsible for “devising the appearance of the various elements of the game, the rules and logic by which it was generated, and for writing the relevant computer program.”

Conclusion 

In such a rapidly evolving field, predicting the future of copyright as AI art becomes normalized is challenging. Artists, photographers, and libraries might adjust the copyright of their work to keep pace with this dynamic technology. Stricter copyright protections could make it more difficult for AI algorithms to access artistic information. To safeguard your work from generative AI, there are a few reliable strategies. Always read the terms and conditions of any image software you use, whether for creating or storing imagery, as they may utilize your information for AI systems.

Frequently Asked Question 

1. Who shall be the author if the work is solely generated with the help of AI?

According to the Copyright Act there is no author who shall be called for the work generated by AI and in India the act does not even protect the work so generated by AI.

2. Will the work generated with the help of AI be protected by Copyright law?

In India we do not have the specific law which protects the work so generated by the AI after giving the commands to get the desired result.

3. What will be the consequence for Copyright infringement?

When a copyrighted work is used by a third party without the original creator’s permission, it constitutes copyright infringement. According to the Copyright Act, 1957, the infringer may face both civil and criminal consequences. The penalties include a fine ranging from Rs. 20,000 to Rs. 2,00,000 and imprisonment for a term of at least six months, which may extend up to three years.

Author: Riddhi Garg

Student at College: Kurukshetra University