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Artificial Intelligence and Copyright Issues

Copyright is one the most important aspect of intellectual property rights, it protects any unauthorized utilization of an original work of the author. In India copyright related laws are primarily governed by The Copyright Act, 1957 which grants exclusive rights to the author over its original work for his/her lifetime and 60 years afterwards.

Earlier copyright was mainly granted to any original work which has some form of artistic expression for example films, music, lyrics, books & novels, etc. but now even software can be copyrighted because it is deemed that a software is a programme like a book written in a certain language or code. One of the products of this technology is Artificial Intelligence that mimics the human intelligence to perform tasks which a human would have performed by applying his independent mind.

Although an AI is initially created by programming it but later it can perform tasks and create original works like music, lyrics, pictures on its own, without receiving any external input by its creator this way it technically becomes the author of the produced work.

Implications in Copyright

Earlier all the work that were being produced by the computers were directly due human intervention so every right pertaining to that work were given to the creator of AI only but due to advancement in informational technology field the AI has become much more powerful and thus capable of producing original works independently of its creator this begs a serious question "who should be the author of such work creator of AI, AI itself or nobody? We will look into this in detail.

To programmer
The best and most followed practice is to give all the copyright related rights to the programmer of AI himself the argument behind this is that the AI or by extension its creation would never have come into existence without the programmer's intellectual creativity, therefore logically the authorship should be awarded to the programmer itself.

This practice is usually followed in nations like Hong Kong, India and UK. This rule is best summarized in UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), which says that: "In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken."

Furthermore, a UK High Court in Nova Production Ltd v. Mazooma Game Ltd where the authorship of video game produced by AI was in dispute the court held that author of the work was the programmer who "devised the appearance of the various elements of the game and the rules and logic by which it was generated and who wrote the relevant computer program"

AI Itself
It is often argued that AI should be given the sole copyright ownership where it has produced completely original work using its own computational intellect independently of its creator, but this rule gets barred mainly due to two reasons.

First, granting a machine sole ownership would directly amount to granting AI a legal personality this way it can exercise its rights but in present scenario no country recognizes such rights to a machine. Second, it is pretty much established fact throughout the world that a copyright can only be granted to an original work which a result of human creativity and intellect and AIs not being a human cannot have same rights as humans.

For example, United States' copyright office has categorically said that it will "register an original work of authorship, provided that the work was created by a human being". This above-mentioned remark of copyright office gets its strength from a case law Feist Publications v Rural Telephone Service Company, Inc. where the court said that "the fruits of intellectual labour that are founded in the creative powers of the mind" hence only a product of human intellect possesses the capability of copyright.

In Australia also, copyright is available to the creator of an AI machine in the "machine's source code" only but not in the AI-generated work because of the lack of human intervention this rule flows from the case (Acohs Pty Ltd v Ucorp Pty Ltd), here the court declared that a work generated with the intervention of a computer could not be protected by copyright because it was not produced by a human.

Recently in India the above-mentioned rules have been relaxed by the copyright office where an AI called RAGHAV along with the owner of the AI were granted the co-authorship for a painting image "suryast" which was produced by the AI itself.

Nobody
Another popular stance regarding the authorship of an AI generated creative work is that it should be deemed to be free i.e., it has no owner and can be used by anyone just like creative commons. This scenario becomes hostile for the companies as they put in a lot of effort and capital to develop a sophisticated AI in hope that one day, they will be able to make profit out of the works produced by AI but if their AI generated works gets no copyright.

They cannot make any profit out of it. Although this practice can be quite beneficial for the common public, but it leaves no incentive for the tech companies to continue investing in a project from which they won't derive any economic reward this seriously hinders the innovation.

Position of Indian laws
As discussed earlier that almost every law pertaining to copyright in India is governed by the Copyright Act, 1957. One of reasons as to why in India a copyright is not granted to an AI is section 2(d) of The Copyright Act, 1957. This section defines the term 'author'. For ownership of any copyrighted work, the person should fall under the domain of an "author".

This bars the AI from owning any authorship because they are generally not regarded as a legal person as we have discussed earlier. According to Section 2 (d) "author" means,- (vi) in relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created;"

The problem in this definition is the phrase 'the person who causes the work to be created'. For a person to cause a work to be created proximity of the person with the work is important and for the purpose of this act person here means a human or a legal person. Thus, the current Copyright Act is not inclusive of AI systems.

Thus, when it comes to works that are created by AI, their authorship would be indecisive under Indian Copyright Laws. The position of section 2(d) of The Copyright Act has continuously been iterated in catena of judicial decisions for example 5 in Tech Plus Media Private Ltd v. Jyoti Janda, the Delhi Court held that "the plaintiff is a juristic person and is incapable of being the author of any work in which copyright may exist".
Conclusion
Truly, AI generated works are copyright nightmare for authorities throughout the world as till now we have reached no common ground regarding this issue. Weak AI like Siri & Alexa have already been adopted by common public and industry specific AI are already being used to generate works in music, journalism, films, and gaming.

Use of AI by the artists and common public is only going to be more widespread than ever before as AI continue to become more powerful, sophisticated and independent thus blurring the line of distinction between the works produced by human and AI. As for Indian position regarding copyright, in order to make AI more inclusive in Indian Copyright law the legislature should come up AI specific copyright law and first step could be by recognizing the legal status AI i.e.,

By granting AI a legal personality thus making it capable of holding its rights. In conclusion the need of hour is that all the countries should come together to reach a common ground on who should get copyright of an AI generated work and countries on domestic level must start making AI specific copyright laws to prevent future complications as it is going to be even more complex also to prevent misuse of this vacant law.

References:
  • Nova Productions Ltd v.mazooma Games Ltd and ors. [2007] ECDR6,[106]
  • Artificial intelligence and copyright (wipo.int)
  • Copyright And Artificial Intelligence - Copyright - India (mondaq.com)
  • Exclusive: India recognises AI as co-author of copyrighted artwork | Managing Intellectual Property (managingip.com)
  • Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991)

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