India: Owner Of The Artworks Created By AIs

Last Updated: 4 January 2019
Article by BHAVESH YADAV
Most Read Contributor in India, January 2019

Artificial Intelligence, which was fiction in the 1950s, is more science and less fiction these days. AI can already compose music; write lyrics; write scripts for movies and can paint too. Recently, Nature Morte Gallery in Delhi hosted India's first artwork exhibition created by Artificial Intelligence. As the artworks created by AI are becoming ubiquitous, the question arises, who holds the authorship of the work; creator of the machine, human or the machine itself.

For a work to be copyrightable it must meet the 'modicum of creativity', standard setup by the Hon'ble Court in EBC v. D. B. Modak, in this case court stated that minimal degree of creativity should be there in the work. Another essential element is the involvement of human skill, because it is considered that creativity is a human phenomenon. In the Ninth Circuit Decision, where a monkey took its selfie, court stated that the monkey cannot be given copyright for the photographs it took, reason given was, "any claim can be refused for registration by the U.S. Copyright office if it determines that a human being did not create the work."The court further said that "it will exclude works produced by machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author."Hence, the decision raised the question as to who owns the copyright of an art created by an AI.

While humans program the algorithms, the decision making – the creative work – comes from the machine. Considering the recent expressions made by AIs it is infallible that there is a work of creativity in them. For example, an AI at Google created sounds that were not heard before, merging sounds of two different instruments and opening up a whole new toolbox for musicians to play around with. This is only one model in a developing group of works created by AIs. A short novel written by a Japanese computer program in 2016 made it to the second round of a national literary prize.

Eran Kahana, an Intellectual Property lawyer at Maslon LLP, is an adherent non-believer of granting authorship to AIs. He clarifies that the reason IP laws exist is to "keep others away from utilizing the work and empowering the proprietor to create benefits from it. An AI doesn't have any of those requirements. Artificial intelligence is an instrument to create those sorts of works."

Section 2(d) of The Copyright Act, 1957, defines 'author' as-

"(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 primary issue with the above mentioned definition is the term 'the person who causes the work to be created'. Deciding who 'causes' a work to be made is an inquiry of the nearness of a natural or lawful person to the making of the 'expression' in question – the more nearly a person is engaged, the more the person adds to it, and the more probable the individual in question is to qualify as a person 'who causes the work to be created'. Because of the above mentioned, the current structure of the Copyright Act, 1957 may not viably manage for formation of works where the original creator of the 'expression' isn't a human or a legal person.

Therefore, with regards to the works that are made by AI, their creation would be contentious under Indian copyright laws. It is inevitable that a human's conduct is required in kick-beginning the AI's inventive processor, yet the procedure to figure out who the creator/proprietor is when AI is under the spot light in creating a work, is still on a hazy area. European Commission, at present is working on a directive framed to define 'legal personality', what, legally, is a person. And with AI in the light the answer has become more complicated. According to Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex, Copyright Laws can either deny the copyright protection to the works where human involvement is minimal or non-existent or it can attribute authorship for the concerned work to the creator of the program. This will arise another issue with regard to the creator of the program or the user of the program. It is like asking who shall be the copyright owner, pen or the writer.

Things are probably going to end up yet more unpredictable as AIs are all the more commonly used by artists and as the machines show signs of improvement at recreating creativity, making it harder to observe if a work of art is made by a human or a machine. We have not yet started the discussion as to what happens when AIs will be given the status and privileges of human; it is an entirely different story.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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