'Technology like art is a soaring exercise of the human imagination' – Daniel Bell
Introduction
USER PROPMT: Crack a
joke.
AI: Why don't eggs tell jokes?
Because they'd crack each other up!
🥚😂
Even though the above-mentioned lines were supposedly meant to be a joke, they were anything but hilarious! It looks like a mechanical response which lacks any human-level humour. Something ,maybe a robot would laugh at!
Well because it is written by a bot , so of course it is devoid of humour and that wasn't very difficult to recognise. This response was generated by ChatGPT GPT stands for 'Generated Pre-trained Transformer', a chatbot which is Artificial Intelligence and is designed to give responses to any questions asked by the user based on a large language model (LLM) and algorithm-based system.
Presently there is a 4th Industrial Revolution underway, and it is being propelled by rapid technological innovations, such as IoT, Big Data (BD) and Artificial Intelligence (AI), in the field of digital networks.1 One of the major advancements being in the field of AI as it is the ability of a computer system to 'perform tasks normally requiring human intelligence'2. AI has done it all from writing poems, creating paintings and photographs, writing musical lyrics to creating novels and the list is exponentially growing. Any kind of artistic and literary creation is protected under Copyright Protection where the creator of such works owns the Copyright ( IPR) to it in general cases. Which seeks to then raise the challenge whether AI-generated content would also receive such protection.
Furthermore, AI is evolving to become one of us, which is a scary thought but predictable nonetheless, it pushes the need to establish a legal position for it which further raises the question that whether AI will be holding ownership to such content created by it? Whether AI has the legal ability to hold such rights? In other words, when a machine learns, thinks, and acts without human input, and it creates a work, what person should own the copyright, if any?3 And if so what does it mean for IPR Legislations globally? This blog will delve into the legal jurisprudence of ownership and authorship under Copyright Law using prominent cases emerging in the AI Industry.
Looking at few AI based Copyright cases
Various platforms such as Copilot, Deep AI, Open AI, Canva ,etc have developed chatbots and softwares that give creative outputs. The use of such technology has also made us realise that humans are not the only source of creative works anymore. Computers with (and sometimes without) human assistance are also able to create artistic or innovative works.4 Such machines/platforms are often called "creativity machines" as they are programmed to exhibit learned skills that can lead to production of creative works. Creative works produced as a result of these learned skills are a topic of debate, as they fall into a legal grey area.5 In the case of Thaler V Perlmutter6 the United States Court of Appeals for the District of Columbia Circuit denied Thaler's Application to register 'A Recent Entrance to Paradise' an AI- authored artistic work under the US Copyright Act,19767. Stephen Thaler infamous for developing AI machines and softwares that go onto create content that can subsist under IPR Regime asking for AI to hold such rights. He developed a generative AI named "Creativity Machine" which generated an artwork as shown below, for which he went onto register as artwork created by AI. In the section labelled "Author Created," Dr. Thaler wrote "2-D artwork, Created autonomously by machine."8
DABUS, A Recent Entrance to Paradise, 2012, artificial intelligence–designed image. Photo: Stephen L. Thaler.
The court rejected Thaler's claim in this case and went onto to state the following:
- Human creativity was the sine qua non9 at the core of Copyrightability , the mediums and channels of it being irrelevant.
- Quoting the case of Burrow-Gies Lithographic Co. v. Sarony10, court highlighted the importance of human control and involvement in the creation of photos making photographs subsist copyright.
- It also looked to the dictionary definition of "author," which indicated that copyrightable work must be originated by a human "with the capacity for intellectual, creative, or artistic nature."11
Despite the rejection, Thaler did not stop at copyright, he has been repeatedly trying to gain Intellectual Property Rights for his AI machines for creation of content. Recently his claim for patent registration owner as AI for his AI- created 'beverage container' was rejected in UK courts. One of the most prominent cases under AI generated works is the one of the 'The Next Rembrandt'. A collaborative Project between ING, TU Delft, Mauritshuis Museum & Microsoft is a 3D printed painting made from the data of Rembrandt's total body of work, utilized deep learning algorithms and facial recognition techniques12.
'The Next Rembrandt' Photo Source- Handout
This work has been one of the oldest in AI-generated artworks and upon its unveiling in Amsterdam it gathered criticism for its lack of 'emotion' and 'taste and human touch'. The world was clearly not ready for AI to takeover the creative works department. It raised the first question of whether this project would hold rights to copyright or the owners would?
In another case, the Shenzhen Tencent Case 13 wherein Tencent created a machine called 'Dreamwriter' which was used to publish a financial report on its website with a cautionary note was put at the end stating the source of such work. Yingxun (Defendant) had copied and published the same article on its website without permission the same day. Tencent sued Yingxun for copyright infringement. The court held that:
- The article mentioned above was reflective of stock market trends analysis based on data and information at that time and hence to that extent possessed a degree of 'originality'.
- Even though there was AI-involved , and it did generate the report, there was high level of human involvement in the same, the creators just used the AI software to create a structured article for the data they researched on and so it was merely presentation that the AI did. High level of human-contribution does not make it a work of AI alone and hence AI cannot hold the copyright to the said work.
This case builds on yet another interesting case, Feilin v. Baidu, delivered by the Beijing Internet Court in early 2019. In that case also the Court recognised that the report met the originality requirement (on account of some human involvement in it), it did not constitute a copyrighted 'work'.14
AI and the Legal Thresholds of Copyright Ownership
Under the main document on fundamental aspect of copyright — "Berne Convention for the Protection of Literary and Artistic Works", copyright protection applies to any work in the field of literature, science, and art, regardless of the form and method of expression15. By this definition copyright protection should technically be available to AI as it does create all the works mentioned above, but as per definition of Intellectual Property Rights , under the Black's Law Dictionary16 the term 'human intellect' denotes that works created only by humans will be considered as intellectual property. Artificial Intelligence does not come under 'human intellect' , it is 'human-like intellect' hence it clearly does not fall under the definition of IPR, so naturally any work created by it surpasses the ambit of IP currently . Copyright out of all the IP's talks about a bunch of rights including legal, moral, and economic rights , it gives wide protection to creators to protect their work from distortion and commercialisation. While protecting any work under copyright whether protection as owner or author the key concept of originality is evaluated. As per Anna Kirakosyan, any work must have a minimum of originality to be protected by intellectual property rules and come from the spark of creativity of a natural person 17. AI does not constitute a natural person as it is not human, does not have birth rights and is a mere human creation hence, IP rights to AI seem far-fetched. When it comes to originality of works created by AI, this can be answered by two arguments:
- AI-generated works are not entirely independent in creativity, they are only generated after the user gives a certain prompt to the machine, without which the machine wouldn't be able to produce anything. Just like a simple computer, AI works on input and output system. This was also mentioned in the Shenzhen Tencent Case that certain level of human interference is involved and so the work is not originally created by AI only.
- One may argue against this by pointing out that, despite lacking legal personhood, AI can mimic human intelligence and solve complex problems through deep learning algorithms. However, since this ability remains largely dependent on programming, it is still unclear whether such outputs can truly be regarded as creative expressions—especially given that their outcomes often remain unpredictable to both users and developers.
Following the above arguments , AI- generated works cannot be considered original and hence find no weightage in copyright jurisprudence. Throught the cases of Bleisten V Donaldson Lithographing Co18. and Feist Publications19 the courts have established that copyright only subsists in works which are original and have creativity both of which are absent in AI-generated contents.
Conclusion
This study has successfully painted a picturesque view on AI's jurisprudential position in context to Copyright Protection. While AI does not hold the right to copyright at present, that will not be the case forever. AI is booming ascendingly and the day when AI will be able to generate content without human interference does not seem very far. The outdated nature of IPR laws globally has failed to address the concerns of the present, effectively dismissing the reality as huge number of AI generated works have been put into public domain. It not only affects the programmers and users economically but also demotivates them to invest in new technological resources and further advancement into AI development. The consequences of this gap in copyright law are far reaching and may result in a decrease of valuable new works available to scholars, researchers, and consumers, and a significant delay in technological and artistic progress of modern society.20 The existing law needs to be interpreted in the sense that by not providing ample protection to AI created works its also plays with the economic and moral rights of the creators. Maybe a new law is not the solution but serious interpretation is. With AI becoming a more significant part of our daily lives, it is essential to strike a balance between encouraging its growth and ensuring the protection of intellectual property rights.
Footnotes
1. 1 Klaus Schwab, The Fourth Industrial Revolution (World Economic Forum, 2016) 7; Intellectual Property Strategy Headquarters, 'Intellectual Property Strategic Program 2016', Kantei (Program, May 2016) 3 .
2. Courtney White & Rita Matulionyte, ' Artificial Intelligence Painting the Bigger Picture for Copyright Ownership' ( 5 December,2019)
3. Victor M. Palace, 'What If Artificial Intelligence Wrote This: Artificial Intelligence and Copyright Law' (2019) 71 Fla L Rev 217
4. Stephen Thaler, the President and CEO of Imagination Engines Inc., has been credited with the creation of computer programs which generate copyrightable material with and without human assistance. See Tina Hesman, Stephen Thaler's Computer Creativity Machine Simulates the Human Brain, MINDFULLY.ORG (Jan. 24, 2004), http://www.mindfully.org/Technology/2004/Creativity-Machine Stephen Thaler, the President and CEO of Imagination Engines Inc., has been credited with the creation of computer programs which generate copyrightable material with and without human assistance. See Tina Hesman, Stephen Thaler's Computer Creativity Machine Simulates the Human Brain, MINDFULLY.ORG (Jan. 24, 2004), http://www.mindfully.org/Technology/2004/Creativity-Machine- Thaler24jan04.htm (last visited Sept. 25, 2016)
5. Kalin Hristov, 'Artificial Intelligence and the Copyright Dilemma' (2017) 57 IDEA 431
6. United States District Court for the District of Columbia [2023]: Thaler v. Perlmutter, No. 22-CV-384-1564-BAH, WIPO Lex
7. Copyright Act, 1976
8. Brandon E. Hughes 'No Entrance to Legal Paradise: D.C. Court of Appeals Affirms Denial of Copyright Registration for AI-Generated Artwork' (MSK Client Alert, 19 March 2025) https://www.msk.com/newsroom-alerts-3089 accessed 8 April 2025
9. sine qua non- an essential condition; a thing that is absolutely necessary.
10. Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884)
11. Julia Mainini, 'Stephen Thaler v. Shira Perlmutter, et al. - No. 22-1564 (BAH) (D.D.C. 2023)' (2023) 28 Intell Prop & Tech L J 65
12. VML, ' The Next Rembrandt' https://www.vml.com/work/next-rembrandt accessed 15 February 2025.
13. Shenzhen Tencent v. Shanghai Yingxun [2019] No. Y0305MC No. 14010.
14. Bhavik Shukla & Hatim Hussain, ' Shenzen Tencent v. Shanghai Yinxun: AI Authors, Copyright and Some (Hard) Lessons for India' ( Spicy IP) (https://spicyip.com/2020/08/shenzen-tencent-v-shanghai-yinxun-ai-authors-copyright-and-some-hard-lessons-for-india.html) accessed on 08-04-2025.
15. Berne Convention for the Protection of Literary and Artistic Works art 2, Sept. 9, 1886, S. Treaty Doc. No. 99-27 (as revised at Paris on July 24, 1971 and amended in 1979).
16. Black's Law Dictionary (11th Ed. 2019).
17. Anna Kirakosyan, 'Intellectual Property Ownership of AI-Generated Content' (2023) 4 Digital LJ 40.
18. Bleisten V Donaldson Lithographing Co.[1903] 188 U.S. 239.
19. Feist Publications, Inc. v. Rural Tel. Serv. Co. [1991] 499 U.S. 340
20. Kalin Hristov, 'Artificial Intelligence and the Copyright Dilemma' (2017) 57 IDEA 431
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