The period of the 21st century can be considered as an extraordinary advancement in innovation, with the use of Generative Artificial Intelligence (hereinafter referred to as AI) being one of the most significant creations in the history of human evolution. AI has become a part of our day-to-day life activities and has been revolutionising every possible field. However, the over-reliance on AI raises a discussion regarding the nature of the content generated by it, with questions arising on how AI generates its content and whether AI-generated work falls within the scope of the Copyright Act,1957. If true, whether it possesses copyright infringement to the original creators or such content can be protected under the doctrine of "Fair use/ dealing." These queries are vital in establishing legal and ethical guidelines for regulating AI-driven data.
WHAT IS AI AND HOW IT GENERATES CONTENT?
Generative Artificial Intelligence (AI) provides an overview of algorithms which is used to create content such as audio, code, images, text, simulations, and videos.1 This generated work is a compilation of numerous works created by humans via machine learning algorithms, natural language processing, and deep learning techniques, which enable AI to generate content that mimics human creativity and serves variety of needs, making it a versatile resource across different sectors.
Similar to Google, AI is easily accessible, with one search away and often free of cost. A user can easily access platforms like Chatgpt or Perplexity for instant responses to their queries, along with AI-powered features inside content software like HubSpot/Canva to streamline their work processes. The information is provided to them in the form of text, images or videos generated by AI as per the needs and preferences of the user.2
THE ESSENCE OF THE COPYRIGHT ACT, 1957
When someone creates a segment of work, It's not just the work itself that deserves protection; It's the ideas, creativity and hard work which they have poured into it and above all, the most important facet is to protect the "originality" of the same. In other words, "Copyright law is to preserve the fruits of a man's efforts, labour, talent, or test from annexation from other person."3
The Copyright Act is designed to protect the exclusive rights of creators vesting in literary, dramatic, musical and artistic work as well as cinematograph films and sound recordings.4 It ensures to restrain others from copying this work. The term 'copyright' refers to a form of Intellectual Property Right. It pertains to a collection of exclusive rights mentioned under §14 of the Act. These rights, as detailed in the aforementioned section, are only available to the owner of the work or any other person who has been permitted by the creator to exercise the same. It allows the owner to perform a range of actions consisting of publishing, reproducing, translating, adapting, and sharing the work with the public5. In India, the registration of the work is optional and not mandatory because the copyright comes into existence as soon as the work is created.6
AI AND COPYRIGHT OWNERSHIP
While India is still in the process of fully understanding the rapid advancement in technology. At present, there is no specific legal provision or any amendment that explicitly deals with AI-generated content and since AI is not considered a legal person under the law, it cannot possess or exercise any right7
One may argue that AI relies on work that is nothing but a collection of multiple human creations and generates a new work of its own which lacks a sense of authenticity, due to which it should not be protected under the Copyright Act. This perspective was upheld by the U.S. court in the landmark case of Stephen Thaler v. Shira Perlmutter,8 The issue revolved around the work autonomously generated by an AI system could be eligible for copyright protection in the United States to which the court, after thorough deliberation concluded that, the Copyright Office was justified in denying copyright registration for a work created without any human involvement.9
While it is important to consider that AI is not considered a legal person under the law, it cannot possess or exercise any right. However, §.2 (d) of the Copyright Act 1954 defines the meaning of an author in the context of computer-generated work, stating that the author is a person who causes the work to be generated.10 It highlights that the role of human involvement is essential to the concept of authorship, as rightly pointed out by the Delhi High Court, stating that "Artificial Intelligence cannot substitute either human intelligence or humane element"11
Nevertheless, this should not be confined by the notion that work generated by AI should not be subjected to copyright as there is always the presence of human touch which is involved in it. AI cannot act on its own; It requires human assistance from the user to produce anything. Additionally, based on the user's preference, AI allows for modification and customisation. AI has a unique pattern with which it creates content that can be easily identified, emphasising the point that AI is merely a tool which works on the instruction of a person by generating what is directed to it. AI can be compared to a camera used by a photographer. Although the camera captures the image, but it is the photographer's skill, creativity, and choices that bring the photograph to life. Just as AI cannot generate anything independently, if a dispute arises over AI-generated work, the individual who directed the AI should be held accountable. While it's an established fact that AI has made various technological advancements, no matter what, it cannot replicate the creativity of the human mind. Though AI may generate content quickly, it should be viewed as a tool, not a threat to humanity, which one often presumes due to its over-reliance, The concern of AI replacing creators should be subjective and should be addressed separately. What is important to understand is that AI remains a puppet of human instruction—it cannot act on its own. Therefore, the person who provides the guidance and creates the work should rightfully be considered the owner of the AI-generated content
Given that the invention of AI itself is a man-made achievement, so why the owner who has instructed AI to create a work should not get its authorship, and should it be treated differently.12 Similar to this perspective, China's approach is more evolved in nature which recognises that AI-generated works could qualify for copyright protection, provided they exhibit originality and are created under human supervision in the case of Li v. Liu.13
ORIGINALITY OF AI-GENERATED WORK AND WHETHER IT POSSESSES COPYRIGHT INFRINGEMENT FOR THE OWNERS
AI platforms are operated and trained by collecting countless factors and massive databases, which raises a significant question about the work generated by AI and its potential risk of copyright infringement to the original creators without having the authority to use the work which is legally protected. Additionally, there is a further threat of overlapping the work, due to which the original creator would be subjected to loss and would not receive the recognition of their creation.14
These issues can be addressed on the following grounds that, AI only takes references and learns from the original work, much like human ingenuity, without directly copying the work of the original creator in its entirety. Furthermore, If the subject matter of the issue is identical, there is a possibility that a high degree of resemblance might be seen in the work, but it does not itself establish any copyright infringement.15 The term "original" would not require that the work must reflect creative thoughts or inventive ideas, but rather, it requires originality in the expression of thoughts.16 To elaborate further, Copyright infringement can only be considered to occur when the defendant has made unlawful use of the specific form in which the thought or information is expressed, and the liability would arise to the defendant when there is substantial use of the same, the defendant would not be held liable if he has only borrowed the core idea, regardless of its originality and expressed the idea in his own or applying it for a different purpose would not amount to infringement.17
The Copyright Act under §52 recognises the principle of Fair use/ Dealing, which provides exceptions to copyright infringement for personal use, research, criticism, reporting on news, judicial proceedings, and educational activities. While using AI for content creation may challenge the application of the abovementioned doctrine as it might result in commercial exploitation. However, AI before generating the content, involves complex steps that lead to identifying and grouping similar text-image pairs and representing these connections through their related combinations, which may not involve copied material and can comply with the requirements of fair use.18
Technology is meant to benefit mankind and enhance the same. As technology continues to evolve, it is important to embrace the evolving nature of the same. Many inventions that were considered a threat to society have now become an integral part of the same.
As Oscar Wilde famously said, "Imitation is the sincerest form of flattery." The invention of AI should also be looked at from a similar mindset by adapting to the evolving trends of the century and its role in shaping the future. Therefore, AI-generated content should be subjected to copyright protection, and the user should be considered as the owner due to work emerging from his perspective and ideas. At the same time, there should be an additional framework to deal with this aspect where AI and copyright laws would intersect and progress together side by side with technological progress.19
REFERENCES:
- The Copyright Act, 1957.
- Alka Chawla, "Law of Copyright: Comparative Perspective" LexisNexis 1st ed. 2013
- McKinsey & Company, What Is Generative AI? Apr. 2,
2024,
(https://www.mckinsey.com/mckinsey-explainers/what-is-generative-ai.) - Jasmine Leechuy, Machine Writing vs. The Human Touch: An
In-Depth Look at AI-Generated Content, Aug. 28, 2024,
(https://www.theblogsmith.com/blog/ai-generated-content/) - Shalu Ghoti & Daisy Jain, An Overview of the Copyright Act,
1957, iPleaders (Mar. 2020).
(https://blog.ipleaders.in/an-overview-of-the-copyright-act-1957/#:~:text=The%20objective%20of%20this%20copyright,upon%20the%20ideas%20and%20information) - Ellen Glover, AI-Generated Content and Copyright Law: What We
Know, Built (Mar. 6, 2023)
(https://builtin.com/artificial-intelligence/ai-copyright#:~:text=a%20human%20creator.-,Can%20AI%20art%20be%20copyrighted?,can%20copyright%20AI%2Dgenerated%20art) - Rajiv Sharma & Ninad Mittal, Artificial Intelligence Lacks
Personhood to Become the Author of an Intellectual Property,
LiveLaw (Oct. 4, 2023).
(https://www.livelaw.in/law-firms/law-firm-articles-/artificial-intelligence-intellectual-property-indian-copyright-act-singhania-co-llp-238401.) - AI's Right to Copy, Law.asia (Sept. 19, 2024).
(https://law.asia/generative-ai-copyright-law/.) - Madhu Rewari & Shree Misra, Generative AI and Fair Use/Fair
Dealing, Asia IP Law (Aug. 31, 2023).
(https://asiaiplaw.com/article/generative-ai-and-fair-usefair-dealing#:~:text=Fair%20use%20(in%20the%20United,)%2C%20commentary%2C%20news%20reporting%2C. - Ayushi Singh, Copyright in the Spectrum of Artificial
Intelligence, KHURANA & KHURANA (Dec. 30, 2024).
(https://www.khuranaandkhurana.com/2024/12/30/copyright-in-the-spectrum-of-artificial-intelligence/.)
Footnotes
1. McKinsey & Company, What Is Generative AI? Apr. 2, 2024, (https://www.mckinsey.com/mckinsey-explainers/what-is-generative-ai.)
2. Jasmine Leechuy, Machine Writing vs. The Human Touch: An In-Depth Look at AI-Generated Content, Aug. 28, 2024, (https://www.theblogsmith.com/blog/ai-generated-content/)
3. Sulamangalam R. Jayalakshmi & Anr. v. Meta Musicals & Ors. AIR 2000 MAD 454, 2001 (1) COPYTR 73, (2000) 3 MAD LW 38.
4. The Copyright Act, 1957. §13.
5. Shalu Ghoti & Daisy Jain, An
Overview of the Copyright Act, 1957, iPleaders (Mar.
2020).
(https://blog.ipleaders.in/an-overview-of-the-copyright-act-1957/#:~:text=The%20objective%20of%20this%20copyright,upon%20the%20ideas%20and%20information)
6. Alka Chawla, "Law of Copyright: Comparative Perspective" Page no.4 LexisNexis, 1st ed. 2013.
7. Ellen Glover, AI-Generated Content and
Copyright Law: What We Know, Built (Mar. 6, 2023)
(https://builtin.com/artificial-intelligence/ai-copyright#:~:text=a%20human%20creator.-,Can%20AI%20art%20be%20copyrighted?,can%20copyright%20AI%2Dgenerated%20art)
8. Stephen Thaler v. Shira Perlmutter, Register of Copyrights and Director of the United States Copyright Office, et al. 687 F. Supp. 3d 140
9. Rajiv Sharma & Ninad Mittal, Artificial Intelligence Lacks Personhood to Become the Author of an Intellectual Property, LiveLaw (Oct. 4, 2023), (https://www.livelaw.in/law-firms/law-firm-articles-/artificial-intelligence-intellectual-property-indian-copyright-act-singhania-co-llp-238401.)
10. Swati Sharma & Nityesh Dadhich, Guardians of Genius: Securing Tomorrow's Generative AI via Copyright Protection, Cyril Amarchand Blog (Oct. 23, 2023) (https://corporate.cyrilamarchandblogs.com/2023/10/guardians-of-genius-securing-tomorrows-generative-ai-via-copyright-protection/.)
11. Nupur Thapliyal, LiveLaw (Aug. 26, 2023), (https://www.livelaw.in/top-stories/delhi-high-court-chatgpt-for-legal-research-artificial-intelligence-human-intelligence-236285.)
12. Rajiv Sharma & Ninad Mittal, Artificial Intelligence Lacks Personhood to Become the Author of an Intellectual Property, LiveLaw (Oct. 4, 2023), (https://www.livelaw.in/law-firms/law-firm-articles-/artificial-intelligence-intellectual-property-indian-copyright-act-singhania-co-llp-238401.)
13. AI's Right to Copy, Law.asia (Sept. 19, 2024),(https://law.asia/generative-ai-copyright-law/.)
14. Gil Appel, Juliana Neelbauer & David A. Schweidel, Generative AI Has an Intellectual Property Problem, Harv. Bus. Rev. (Apr. 7, 2023),(https://hbr.org/2023/04/generative-ai-has-an-intellectual-property-problem.)
15. Alka Chawla, "Law of Copyright: Comparative Perspective" Page no.7 LexisNexis, 1st ed. 2013
16. Per Peterson J. In University of London Press Ltd. v. University Tutorial Press Ltd. (1916) 2 Ch. 601 at 608; cited with approval in: Macmillan & Co. Ltd. v. Cooper K & J (1923) 40 T.L.R. 186; Ladbroke Football Ltd. v. William Hill (Football) Ltd. (1964) I.W.L.R 273 at 277.
17. Hollinrake v. Truswell (1894) 3 Ch. 420; Mc. Crum v. Eisner (1918) 87 I.J. Ch. 99; Wilmer v. Hatchin & Co. (1936) Mac C.C.13.
18. Madhu Rewari & Shree Misra, Generative AI and Fair Use/Fair Dealing, Asia IP Law (Aug. 31, 2023), (https://asiaiplaw.com/article/generative-ai-and-fair-usefair-dealing#:~:text=Fair%20use%20(in%20the%20United,)%2C%20commentary%2C%20news%20reporting%2C.
19. Ayushi Singh, Copyright in the Spectrum of Artificial Intelligence, KHURANA & KHURANA (Dec. 30, 2024), (https://www.khuranaandkhurana.com/2024/12/30/copyright-in-the-spectrum-of-artificial-intelligence/.)
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.
