India: Copyright And Artificial Intelligence

John McCarthy, the father of Artificial Intelligence, describes it as "the science and engineering of making intelligent machines, especially intelligent computer programs". Artificial Intelligence is a way of making a computer and software related to computer which can think intelligently and autonomously, kind of similar to a human mind. In general understanding artificial intelligence is accomplished by studying how a human brain works while solving a problem and in what manner it learns and makes decisions , where outcomes of such kind of study are used as the basis of developing intelligent software and systems.

There are eight crucial features of artificial intelligence systems; they are

  1. Creative
  2. Unpredictable
  3. Independent and autonomous
  4. Rational
  5. Evolving
  6. Capable of data collection and communication
  7. Efficient and accurate
  8. They freely choose among alternative options.

Till now this field was dominated by quasi-artificial intelligent systems called "expert systems," which mainly used a rules-based decision-making process.1

In other words, we can interpret that these systems were not fully autonomous and, therefore, not truly intelligent, because they lacked the ability to learn and produce unpredictable results, and mostly they acted in a manner predetermined by their programming.2 As these systems could not evolve through learning, they could not be truly creative because their information was limited to what had been placed in their knowledge base.

In current times, artificial intelligence systems are working intelligently and using learning components autonomously. These systems are called "neural networks" because they mimic the function of human brains by absorbing and distributing their information processing capacity to groups of receptors that function like neurons; they find and create connections and similarities within the data they process. Any one of these units, called "perceptrons," can know whether and how much to react against a particular given input and a combination of such responses governs the action of the whole machine. 3

Who owns copyright in work created using Artificial Intelligence?

The challenging part is where we have to decide who owns the copyright in a situation where a creative and artistic work is generated by an automated machine, or any form of artificial intelligence, and such creation takes place independently without any kind of human effort.

Certain kinds of Copyright ownership are discussed as follows:

a) The Programmer

By creating any kind of artificial intelligence device, the programmer undertakes the creative work, in other words we can say that the work would have never came into existence without the programmer's creativity therefore, copyright could be assigned to the programmer.

The issue of authorship was considered in UK High Court in Nova Production Ltd v. Mazooma Game Ltd. The case involved electronic pool games in which the individual frame, displayed on screen when the game was played, which were considered as a computer-generated artistic work. The court found that the 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"4

b) The user

Copyright can also be assigned in favour of a user. The user might be the sole owner of the copyright, where the programme is being intended to create a finished work through application of the programmer's programme. To settle the case, user will have to prove that they alone expended the necessary skills and labour.

c) The Artificial Intelligence

Authorship may also be assigned to artificial intelligence in certain situations where:

  • The produced work is totally new rather than being repeatable one, to produce such work artificial intelligence has worked independently, that means there is no user, the artificial intelligence possesses the discretion over whether to produce future work or not.
  • Granting authorship and ownership to an artificial intelligence results into establishment of the legal rights and obligation on non-legal personality, in other words we can say that artificial intelligence would no longer be seen as a product but rather it will be seen as human being.

d) Nobody

In copyright maximum theory is attributed to human mind. Human being is seen as the main source of creativity. That is why most intellectual property laws assume that the author of a work is human. But in today's era question arises whether computer-generated work should be entitled to protection under copyright.

Owners are not necessarily authors, and the lack of a human author does not necessarily mean that there is no author at all. Even though an artificial intelligence could be considered an author or a creator, it would not be economically or practically feasible to vest copyright in the artificial intelligence. If the artificial intelligence cannot be considered an owner and the human programmer and user cannot be considered as author, copyright ownership becomes an orphan.

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2 Matthew U. Scherer, "Regulating Artificial Intelligent Systems: Risks, Challenges, Competences, and Strategies", 29 HARVARD J. OF L. & TECH. 353, 354 (2016). Rebecca Crootof, "The Killer Robots Are Here: Legal and Policy Implications", 36 CARDOZO L. REV. 1837, 1840–3, 1863–71, 1894–1901 (2015)

3 Testimony of P. J. Federico in hearing on H.R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 37 (1951) (on the landmark legislation).

4 Nova Productions Ltd v.mazooma Games Ltd and ors. [2007] ECDR6,[106]

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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