Author: Vanshika Mangla, Christ university, Bangalore
ABSTRACT-
The article delves into understanding the eligibility of AI generated works for claiming copyright protection as per the Indian Copyright Act, 1957. It stresses upon the three requirements which need to be fulfilled in order to claim copyright protection: authorship, originality of expression as well as fixation. AI lacks human authorship as per the act and originality as interpreted through the Test of Skill and Judgment. The article further goes on to explore the implications which might be associated with giving copyright protection to AI generated works.
KEY WORDS- Copyright, Authorship, Originality, Fixation. Test of Skill and Judgment
ARTICLE-
Indian Copyright Act, 1957 extends copyright protection to works defined under Section 2 of the Act. For an item to be copyrightable, it should either be an artistic work as per Section 2(c), or a cinematograph film as per Section 2(f), or a dramatic work as per Section 2(h), or a literary work as per Section 2(o), or a musical work as per Section 2(p), or a sound recording as per Section 2(xx) of the Copyright Act. 1957.
Further, there are three requirements which shall be fulfilled for gaining copyright protection-
Authorship: The first requirement is that the work must have an author. It should be emanating from the mind of a human author. The term “author” has been interpreted in Section 2(d) of the Act.
Originality of expression: The work should be original as per Section 13(1) of the Act. Although there is no specific provision in the legislation which specifies the conditions under which work will be considered original, the same has been understood and interpreted through various tests laid down in certain precedents. The current threshold in India for determining originality is the Test of Skill and Judgment, as laid down in the case of EBC v DB Modak.
Fixation: This is an essential component to make an item subject of copyright. It must be capable of being fixed in a tangible form.
All these conditions must be fulfilled in order to make a work eligible for copyright protection. As regards to the question whether AI generated work is capable of being protected as copyrightable work, there are certain issues connected to it. Firstly, as mentioned above, the first requirement for copyright protection is “Authorship”. There should be an author of the respective work and it should be a result of his labour and mind. Although the term “author” has not been explicitly defined in the Act, Section 17 of the Act can be interpreted to understand that authorship is limited to persons only. The term “persons” includes natural persons (humans) as well as companies and entities. Since AI is not a person and it produces work using algorithm, the first requirement is not fulfilled. Hence it is not capable of receiving copyright protection with respect to the work generated by it.
Further, another requirement for claiming copyright protection is “Originality”. The term has been interpreted through various tests adopted in several case laws. The current test for determining the same is the Test of Skill and Judgment. In the Paragraph 16 of the judgment in CCH Canada vs Law Society of Upper Canada, skill has been defined as the use of author’s aptitude and knowledge to produce a particular work while judgment has been defined as the use of author’s knowledge to compare between different options to produce a work. Moreover, there should be an intellectual effort on the part of the author. The same test has been incorporated in India in the case of EBC v DB Modak with an addition of the clause “with an added flavour of minimal level of creativity”. It is pertinent to note here that in addition to the requirement of skill and judgment, some minimum level of creativity is also essential to establish originality of a work.
It can be inferred here that in order to claim copyright protection, the work should be more than a mere copy of an existing work and the author must have employed skill, judgment and creativity to produce the work. In cases of AI generated work, AI produces the work which is a combination of already existing works, making few changes as per the requirements of the user. There is no involvement of skill and judgment in producing the work whatsoever. Further, there is absence of minimal level of creativity as there is no intellectual effort on the part of the AI. Since the Test of Skill and Judgment is not being satisfied by the AI, the work cannot be considered original. Hence, the second requirement for claiming copyright protection is not fulfilled as well.
One essential problem associated with providing copyright protection to AI generated works is with respect to cases of copyright infringement. By recognising the copyright protection for AI generated works, it would imply that AI is being put on the same pedestal as a natural or legal person. Although natural persons are capable of suing each other in cases of infringement of their copyright, the same cannot be done with AI. For instance, a person copies material from AI, can AI sue that person of infringement of AI’s copyright? In case a person alleges AI of infringement of their copyright, there is no appropriate remedy which could be provided to the plaintiff as one cannot sue the AI. The next question comes whether it would be appropriate to sue the creator of the AI. This in itself is flawed and a grey area which needs to be looked into.
Since the primary conditions of authorship and originality of expression are not being fulfilled in the cases of AI generated work, they are not capable of receiving protection under Indian Copyright Act, 1957.
CONCLUSION-
It can be correctly ascertained that Indian Copyright Act, 1957 provide copyright protection to those works which fulfil all the requirements of authorship, originality and fixation. However, AI generated art does not satisfy the above-mentioned criteria. The Act specifies that author can be either a natural or legal person. Since AI is neither of them, it does not fulfil the first requirement. Further, a work should exhibit the skill, judgment and creativity of the author in creating the work. AI generated work is devoid of the human input which is essential to meet these conditions. Since AI generated works do not fulfil these requirements, they cannot be made subject to copyright protection.
FAQ-
Q1. What are the basic requirements for claiming copyright protection over a work?
A1. The three requirements for claiming copyright protection over a work are Authorship, Originality of expression and Fixation.
Q2. Does AI generated works qualify for copyright protection as per Indian Copyright laws?
A2. No, AI generated works do not qualify for copyright protection as per Indian Copyright laws since they do not fulfil the requirements of authorship and originality.
Q3. How is originality determined in works as per Indian Copyright laws?
A3. Originality is determined by using the Test of Skill and Judgment which has been crystallized in India in the case of EBC v DB Modak.
Q4. What are the implications of granting copyright protection to AI generated works?
A4. Several legal complexities would arise in case of granting copyright protection to AI generated works. There would be inability on the part of the AI to enforce copyright or be held liable for infringement.
Q5. Can an individual copy AI generated work without facing any legal consequences?
A5. An individual can copy AI generated work without facing any legal consequences as copyright protection does not extend to AI generated works.
