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Introduction :
AI as an Author: Navigating Copyright Ownership in the Age of Generative AI
The emergence of Generative AI certainly brought about a new burst of creativity, such that a person sitting at a keyboard can become a 'creator.' From realistic images of astronauts on unicorns to sophisticated descriptions of complicated subjects, AI accomplishes things we previously believed to be possible for humans alone. However, it has posed a challenge to classical copyright law, a regime crafted mainly for human creators.
Blog with the Conclusion and References :
Learning by Examples: What is Copyright?
In India, just like elsewhere, copyright law, as governed by the Copyright Act, 1957,1 encompasses "original literary, dramatic, musical and artistic works."2 The idea here is to reward human effort and creativity by giving the 'author' of a thing exclusive privileges to it for a term.3 It implies that the author is the sole entity that can reproduce, distribute, or adapt their work. The problem? The law also inevitably employs terms like "author," "person," and "creator," each of which implies a human mind as being responsible for a work. The Act defines an "author" in relation to different works, but consistently implies a natural person.4
The Paradox of AI: Who is the 'Author'?
When an AI produces a work, who is this "author"?
The AI Itself? This is by far the weakest, yet legally problematic, concept. Current copyright law fails to recognize non-human entities, like programs for software, as authors. A computer cannot own rights, bring suits for infringement, nor conclude contracts. It lacks, as yet, legal 'personality.'
The Programmer/Developer of AI? One could argue, by building the AI, they are responsible for its output directly. A great number of AI programs are designed to learn and output unpredictably, and so the direct relation of a programmer's specific input to a specific output is greatly diminished. It's like designing a paintbrush and claiming one owns each painting it produces.
The User Who Provided the Prompt? That's where it gets interesting and usually becomes the most contentious aspect. If I enter "design a futuristic city with flying cars and neon lights" into Midjourney and it produces a beautiful picture, am I the author? Users contribute the idea or the prompt, which feels like a clear act of creativity by themselves. However, it's really the AI doing the "creation" by taking a guess at interpreting the prompt and creating the words or pixels. The amount of creativity inherent in a prompt can also wildly differ – a word, a short phrase, a lengthy paragraph, etc.
International Perspectives: A Glimpse into the Future
Though India has not yet witnessed clear-cut judgments on the same, other nations are grappling with similar dilemmas:
United States: The U.S. Copyright Office has consistently maintained it will register a work by a human author only.5 They recently denied copyright for a piece produced entirely by an AI, restating that human authorship is a fundamental requirement.6 They did, however, register a work in which AI served as a tool but where significant human creativity in selection and arrangement was present.7
United Kingdom: They have a statute which contemplates "computer-generated works," where the author is deemed to be "the person by whom the arrangements necessary for the creation of the work are undertaken."8 This is a comparatively less strict criterion, quite arguably opening a pathway to grant authorship to prompt-engineers or developers who orchestrate the AI's creation.
The Way Forward for India?
In India, the solution lies in a combination of judicial interpretation and potential legislative redressals.
Human Intervention Test: The courts might gravitate towards a "human intervention" test, whereby copyright exists if a human being has significantly edited, arranged, or creatively directed an output of an AI. Prompt generation per se might not be enough.
A New Type of Right? Maybe we require a new type of intellectual property right, period, to recognize the role of AI, instead of trying to squeeze it into current copyright thinking.
Public Domain? If no human qualifies as an author, should work by AI by definition fall into the public domain, for universal free use? That would certainly expedite innovation but may also deter private industry from investing in developing AI.
Conclusion:
The issue of AI authorship is not merely a technicality of law; it also attacks the core of what we term 'originality' and 'creativity.' As a future-focused student, it is obvious that our law, particularly IP law, must speedily adapt to keep abreast of technology's march forward. Whereas, at present, the Indian Copyright Act heavily tilts in favor of the human author, the sheer mass and quality of AI work produced are going to compel a rethink. We may have to achieve a compromise where both human artists are protected and development of technology is fostered, perhaps by giving credit for creativity to the human "director" of the AI, but not to the AI per se. Intellectual property's jurisprudential landscape is witnessing a compelling change, and it's thrilling to imagine how these dilemmas are going to be resolved.
References -
1 The Copyright Act, 1957, No. 14 of 1957 (India).
2 Id. § 13(1)(a).
3 Id. § 14.
4 Id. § 2(d).
5 U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023).
6 See Thaler v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333434, at *1 (D.D.C. Aug. 18, 2023) (upholding the Copyright Office's refusal to register a work autonomously generated by an AI).
7 See Letter from Robert J. Kasunic, Assoc. Register of Copyrights & Dir. of Registration Pol'y & Prac., U.S. Copyright Office, to Van Lindberg, Counsel for Kristina Kashtanova (Feb. 21, 2023) (concerning the graphic novel Zarya of the Dawn, granting copyright to the human-authored text and the creative arrangement of images, but not to the individual AI-generated images themselves).
8 Copyright, Designs and Patents Act 1988, c. 48,§9(3)(U.K.).
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