Author: Ektha Vivekanand, a student at School of Excellence in Law, The Tamil Nadu Dr Ambedkar Law University
Abstract:
Artificial Intelligence has become a prominent player in the creative space and its ever-expanding scope necessitates its inclusion into the sea of copyright laws. The challenges posed by this inclusion are many, but they require appropriate addressal and solutions need to be debated to resolve them. The present definitions of originality and authorship need to be made accommodative of the technological advancements. The global progress towards these challenges as well as the need for international cooperation are emphasised as the prerequisites for the smooth transition of the legal frameworks.
Introduction:
A pertinent question that persists in all legal minds today is whether artwork, music or any content that is generated by Artificial Intelligence can be protected by Copyright Laws. This question sparks an interesting debate between the proponents of the protection of AI-generated works and the opponents of the idea.
The opponents reject the idea on the premise that the work produced by AI is unoriginal and is simply a compilation of human works and sources that are created by humans. Hence, their argument rests on the fact that, at its root, the content generated by AI does not satisfy the necessary elements to be entitled to copyright protection. On the other hand, the proponents do not see AI as a mere robot, but as an artist that is creating unprecedented content that needs to be protected from imitation.
Copyright law is accustomed to human creation, however like every branch of law and due to the massive influence law has on society and vice versa, changing times demand changing laws and wider ambits for copyright protection towards developing technological domains. With international inspiration, copyright laws in India have seen amendments that steered the way for the inclusion of technological advancements. The Copyright (Amendment) Act 2012, was a significant amendment in 21st century India because it piloted the inclusion of digital rights management and computer-generated works within the ambit of legal regulation.
Indian copyright regulations have had a long-standing history since they were developed in 1875 on the foundation laid by the British Copyright Act of 1842 during the colonial rule in India. Post India’s independence struggle, copyright regulations also saw significant changes in order to make them more accommodative of Indian requirements. The scope of protection by the law has been periodically widened to include cinematographic works, sound recordings and even unpublished works. The concept of “moral rights” have also been brought forth in order to provide protection of rights other than economical rights of the creator. Observing the changes that have already taken place in the copyright landscape, it is evident that the law is not rigid and can be inclusive. However, the issue at hand and the challenge associated with copyrighting of AI content is not the question of whether the law can accommodate it. It is whether AI has any rights in the given context.
Essential Requirements of Copyright Protection & their Application to Artificial Intelligence:
Through defined and established laws, there are certain prerequisite conditions that have been computed as necessary in order for any work to qualify for legal protection. These are considered the keystones of copyright law.
Originality is the first criterion wherein it has been established in legal codes that for any work to be entitled to copyright protection, it has to be completely original, an independent creation and must not be imitated from any already existing source. Being a requirement, it establishes that for every piece of work, a certain level of intellectual and artistic capacity and ability has to have been incorporated which is what the creator should be protecting through his work. The originality principle has been highlighted in Section 13(1) of the Copyrights Act 1947 in India. This factor is where the arguments made against granting AI the protection appears to have an edge since it is difficult to ascertain whether the work generated by AI is actually created by AI itself or whether it has been generated as a compilation of a series of human creations. Mannu Bhandari v Kala Vikas Pictures Pvt Ltd & Anrand RG Anand v M/s Delux Films & Ors, are crucial sources that have provided extensive clarity on the concept of originality.
According to existing statutes, for any work to be entitled to copyright protection it must be of human authorship. The initial copyright holder is the author. Since copyright establishes ownership rights, the element of human creation is a requirement. The registration and protection of AI generated content can be denied on the grounds that there is no aspect of human creativity involved in its creation. The large-scale integration of AI into the creative process has resulted in gaps in identifying whether a particular work has been created by a human or generated by AI. This poses a significant amount of difficulty in the practical enforcement of rights and requires modifications such as the monitoring and inspection of AI generated content. The stifling of human creativity is also a concern raised by various opponents against the inclusion of AI within copyright protections. The Berne Convention, along with several other international treaties like the TRIPS Agreement, has laid the underpinning for the overall comprehension of authorship and the legal rights available to authors. Providing authorship rights to people who provide AI with the data it needs to create artistic content has led to a drastic expansion in the use of AI in the creative fields. Naithani (2022) investigated a number of approaches to the authorship issue, including the implementation of mandatory licensing, allowing AI-generated works to become public domain, or acknowledging a unique, sui generis right to AI-generated works.
Various landmark judgements in Indian law can be utilised to understand the essentials of copyright law. Indian law, at present lacks specific mention of AI generated works in its copyright provisions. Originality is a criterion that has not been defined by the legislative framework and has been left up to the court’s interpretation. The United States and European Union, have shown development in their legal scaffolds by providing clarity on the aspect of AI. The US has established that they will grant protection in case of a work created by a human, but generated by AI. The European Union has not specifically addressed AI generated works and has left it up to member states for interpretation. Since in case of computer works, authorship is defined by the person who causes the work to be created, the human element is still present and the challenge that arises is with respect to the interpretation of AI generated work. Hema (2023) examines global viewpoints by contrasting various methods for AI-generated art in the US and the UK. The UK gives copyright to the individual in charge of making the required arrangements, whereas the US does not offer copyright protection to works produced autonomously by AI. AI is acknowledged as a co-author in India with the human who created the piece. But this novel technique calls into question the ramifications of AI’s joint authorship status, necessitating more research into how it affects copyright law.
Luhar (2022) concentrates on the wider ramifications of AI’s influence on copyright and other intellectual property regulations. Although AI-generated content has a lot to offer, it also threatens conventional ideas of authorship and creativity therefore creators’ rights need to be protected in this inclusion.
In India, the law provides a time period in its copyright provisions wherein the work is protected from infringement for a period of 60 years from the death of the owner of the copyright. AI being granted this protection will result in a plethora of questions of which the determination of time period of protection will also be a significant one.
Another challenge is the exclusive rights that are provided to authors such as the right to reproduce the work, communicate it to the public, control its commercial viability and regulate its use by other people. In this case, the challenge posed is with respect to who would be granted such excusive rights in work that is completely AI generated when the proponents of providing copyright protection to AI generated works are asserting the fact that there is no human agency involved and that is the unique selling point of the work. A question that needs to be addressed is who will ensure the non-infringement of AI’s rights and who will represent AI in a copyright infringement dispute if there is no human agency involved. This questions the overall enforceability of these rights. Copyright infringement in ordinary cases leads to either civil or criminal disputes and it results in the owner claiming legal redressal by way of injunctions, damages or other remedies. At present, AI cannot sue or be sued and has not been granted the status of a juristic person or a natural person. Hence, the inclusion of AI within the legal framework casts doubt on the overall procedure to be followed in case of enforcement of legal rights and the provision of remedies. Other concerns that must be addressed are the copyrightability of content produced by AI systems and the usage of copyrighted materials to train AI models.
Recommendations and Suggestions:
The aforementioned challenges make it evident that the inclusion of AI generated works within the ambit of copyright protection will necessitate the redefining of copyright provisions. The inclusion will not be a practically easy process. However, considering the widespread technological development and the constant use of AI at present for various tasks, it is only natural to assume that the expansion of AI into the creative field is only going to see an exponential rise and this needs to be accounted for by the law.
Intellectual Property is a field that requires constant updation because it does not protect physical rights and it involves the protection of something that has been generated due to the creativity of an entity, whether human or otherwise. The unique challenges of AI generated works needs to be acknowledged and tackled by law makers to provide effective remedies.
A separate law or statute, altogether, can be created in order to provide special provisions as to the definitions of originality and authorship as well as the practical enforcement of the legal rights. Consequently, guidelines could be developed to include the copyrightability and the ownership rights of AI. Considering this requires a significant amount of time and effort on the part of the legislative organ, a temporary addressal of the challenges would be by way of a separate acknowledgement of AI generated works as distinct from traditional copyrighted works needs to be done, which is a way of expanding the scope of the law without altering the existing landscape in a drastic manner.
Authorship, as a concept in copyright law, needs to be redefined and adapted to present times by including much needed aspects of the collaborative works of humans and AI. The acknowledgement of cumulative efforts of humans with AI would lead to a more comprehensive definition of the term of authorship and would result in its acceptance on a larger scale.
Fair use provisions in copyright law, are those provisions that enable a person to use work that has been copyrighted, without the prior permission of the author for purposes such as research, teaching, news reporting or criticism. The expansion of fair use provisions for the inclusion of AI within its ambit would benefit society in educational and research aspects.
Since these are challenges posed by technology, the effects they have are borderless. International cooperation and harmony in the copyright provisions can result in the provisions being accommodative and fair and will also result in a higher form of clarity and ensure consistency in the treatment of AI generated works on a global level.
Enforcement issues can be addressed by mandating the institution of Compliance Officers to monitor the work generated by AI and ensure the absence of any infringement.
Conclusion:
The debate surrounding whether AI should be granted protection or not poses a dichotomy and there are compelling arguments both for and against the cause. However, as emphasised by the proponents of the cause, the question of protection cannot go unaddressed with the rate at which the use of AI is expanding by the day. AI also has immense potential for creativity and there is a lot of scope for the incentivisation of AI’s development.
A solution needs to be arrived at which strikes a proper balance between the interests of human creators and AI. This will necessitate a comprehensive strategy that takes into account solutions like new legal frameworks, redefined authorship, fair use exclusions, and international cooperation while also acknowledging the distinctive qualities of AI-generated content. We can only traverse this unexplored region and guarantee a peaceful future for both human and AI creativity by means of ongoing discussion, legislative change, and ethical concerns.
References:
- Sarah Bro, Shawn C. Helms, Alya Sulaiman, Kavya Rallabhandi, Author or Algorithm: Recent Developments at the Intersection of Generative AI and Copyright Law, (September 14, 2023) https://www.mwe.com/insights/author-or-algorithm-recent-developments-at-the-intersection-of-generative-ai-and-copyright-law/
- Naithani, Paarth. “Issues of authorship and ownership in work created by artificial intelligence-Indian copyright law perspective.” NTUT Journal of Intellectual Property Law and Management 11.1 (2022): 1-12
- Hema, K. “Protection of Artificial Intelligence autonomously generated works under the Copyright Act, 1957-An analytical study.” Journal of Intellectual Property Rights (JIPR) 28.3 (2023): 193- 199
- Luhar, Namrata. “Protecting Literature under Copyright Law in India: Opportunities and Challenges.” RES MILITARIS 12.3 (2022): 4219-4229
FAQs:
Q. Is there any explicit mention of AI-generated content in Indian law?
A. At present, Indian law lacks explicit mention of AI-generated content, however computer-generated works that have been created by humans have been granted protection.
Q. Has there been any international recognition for AI-generated works?
A. India and US maintain the same stance of providing protection to works that have been created by humans through the computer. The EU has left it up to interpretation of the member states.
Q. What are fair use provisions?
A. Fair use provisions are those provisions that enable a person to use work that has been copyrighted, without the prior permission of the author for purposes such as research, teaching, news reporting or criticism.
