Article by Tanya Khanijow,
Symbiosis Law School, Pune, 2021-2026, SEM-V


Artificial Intelligence has become the new normal in present times. The development of AI technology has resulted in creating challenges regarding the protection of AI- generated work under the intellectual property laws or not. This paper aims to create a contrasting analysis between the existing laws of different countries with respect to the intellectual property rights of the AI-generated work. Further, it talks about the aspect of the 'originality' and 'authorship' of the AI-generated work and provides suggestive measures for the amendment of the current laws to recognize AI-generated work within the laws of India.


AI-generated | Copyright | Artificial Intelligence | Authorship | Joint-authorship | Human contribution.


Artificial Intelligence can no longer be considered as a newly emerging concept. It refers to a system where machines work as if they have the ability of human intelligence. It was founded by Alan Turing, who describes it as "science of making machines that possess human intelligence, essentially intelligent computer programs."

It focuses on collection of information or data and converting it into actionable information. The rules that are known as algorithms, are carried out by the systems for providing the instructions in completing a particular or specific task.

The Next Rembrandt painting and Shimon lyrics and songs gives us the perfect example of AI-generated work, completed without any human involvement.1 In accordance with the laws of UK, the Copyright, Patents and Design Act, 1988 provides copyright to "the person who makes necessary arrangements for the creation of work". In India, AI is given joint authorship rights along with the creator or the programmer of AI system over the work generated by it without any human contribution. However, there is ambiguity and challenges that are faced by giving joint-authorship rights. While, if we assess the situation of United States, under the Copyright Act, 1976, the Ai generated work that is carried out without human involvement is not protected and in put in public domain immediately after it is created.

There has been massive headway in the field of AI. This has raised many questions regarding intellectual property rights and laws related to it, especially copyright and patents. For the invention of the AI, inventor/ programmer can easily claim the patent rights over his invention. Patents are granted to encourage the inventors to invest time, efforts and resources while creating a new technology and granting him the exclusive rights over the invention for a limited period. The invention (AI system) can be protected by patent, but the autonomous work generated by the AI cannot come under that protection. Hence, there is a need to scrutinize the copyright laws, to assess if protection of AI produced work can be provided under it. The role of AI is not just limited to creating literary work, it also includes artistic work, music, self-driving cars etc.


Human contribution is an important aspect to determine if the work done by AI was AI assisted or AI generated.AI-assisted work is produced with human involvement. This makes it clear that due to the contribution of humans in the creation of the work, the creator can be made responsible. While on the other hand, AI-generated work is produced by the AI without any human involvement and so the confusion regarding the AI-generated work remains unanswered.

For instance, the Next Rembrandt is an AI which analyses and creates independent artwork that is very much similar to that created by the well-known artist Rembrandt. The programmers of the AI can claim the protection of their invention under patents, the software under copyright but what protection can be provided to the works that are generated by AI without human contribution. There should be encouragement provided in the form of monetizing the work that is generated by AI entirely. In this way, investors with get more invested into the field of AI.

In addition to it, there is an ambiguity regarding who should get the authorship or ownership of the AI-generated work?

As there is no contribution or involvement of a human. Hence it is unfair to give the credit of the work to a human entirely. Also, the work generated by AI cannot be put into the public domain immediately after it is created.


India has become the first country to provide joint authorship to AI along with the creator of the program. Raghav is a painting application (AI), that is known to have created the painting'Suryast'. This painting a combination of Vincient van Gosh's painting that was 'Starry Night' and a photograph taken by Ankit Sahni.

There were two applications filed by the creator of the AI system (RAGHAV) first one claiming sole-authorship of AI for the work generated by it and the other one claiming the joint-authorship of AI and Ankit. After filing of this application, a parliamentary Standing Committee on Commerce was arranged and made intellectual property rights their main point of discussion during 161st report. It was determined in the report that the current laws of the country are not competent to protect the rights of the AI-generated work and suggestions were made to accommodate such rights under copyright laws.


Originality has not been defined under the Copyright Act, 1957. Hence there is no such rigid concept that can determine whether any work comes under the category of being original or not. Some clarifications can be provided by interpreting the judgements. It can be elucidated that work can be called 'original', if the author has produced the work independently and it was not substantively copied from any other source. Original work is the sine qua non, in order to claim copyright. The creativity aspect required under the copyright act is very less. Only by the virtue of minimum creativity, the work can be considered original.

While examining the case, Eastern Book Company V. D.B. Modak, 20042 it was stated by the Supreme Court that in order to assess the originality of the work, involvement of author's judgement and abilities is necessary along with the labour done.

There has been debate challenging the capability of AI (the next Rembrandt) while creating the paintings without any taking any reference to the data input that is fed by the AI programmer. It was claimed that the AI cannot create such work without the data input. However, it was argued that every human acquires his knowledge and talent by learning from others or from past works. "You can't be creative in a void". And if a human can take reference from the work and still get copyright for his work then how can an Ai be considered incapable from claiming copyrights for such works. Additionally, it is not the idea but the expression of idea that is protected under the copyright laws. Taking references of the data input fed into the AI by the programmer does not mean that the work is copied from others, it can be considered as the reference taken from the past works. The painting 'Suryast' prepared by the AI Raghav after using the past references and data input can be considered original and not a substantive copy of the work of others. Hence, copyright can be granted to the AI-generated work if it is original.


The term 'author' has been defined under Section 2(d)3 of the Copyright Act. It includes only humans as the author and no other judicially- created individual. AI is not included in the current definition of 'author' under the act. In the Raghav case, the Copyright office gave joint authorship rights to AI Raghav and creator under Section 2 (z) of the act.

By properly going through Sections 2(z) and Section 17(a)4 of the Copyright act,5 it can be suggested that an AI cannot be categorized as author or joint author under the act.

It is usually believed that only a natural person can be granted the ownership or authorship of creative work, art and inventions. The work generated by AI can be its original creation, but still such work generated autonomously generated by AI does not provide it the authorship of that work as current laws of India still do not accommodate AI within the definition of author or owner under copyright act. The act thus requires some changes to include AI within the ambit of author or owner in case of the original work generated autonomously by AI without any human intervention.

There was a landmark case of DABUS (Device for Autonomous Bootstrapping of Unified Sentience).6 In this case, there was an application that was filed by the creator (Stephen Thaler) of the AI system in different jurisdictions of USA, UK, New Zealand, and Australia. The applications talked about the intellectual property rights of the AI system as the inventor of the creative work. This application was rejected on the grounds that only a natural person can get the authorship rights under law. Through Stephen's Patent Cooperation Treaty, there were some South African countries and Intellectual Property Commission (CIPC) that accepted to grant intellectual property rights with respect to the work generated by AI. This case determined the Intellectual property rights of AI and gave it the recognition of an author.


Generally, once an original work is given protection under the copyright act, there is no need to get it registered compulsorily. However, if the work is generated by AI autonomously then it should be made compulsory to get it registered. It is only after the registration that both AI and creator will get copyright protection under the act. It is upon the Copyright office to determine AI and creator as the joint authors and the contribution of the human in that work.


With the advancement in science and technology, specifically the information technology and the Artificial Intelligence, the world is facing the problem of finding ways to protect the intellectual rights of this intelligence. According to the basic jurisprudence of the IPR laws, intelligence, in any form, needs to be recognized, acknowledged, incentivized and protected. It is easy to protect the intelligence of the human agency, but the problem arises when this intelligence is artificial in nature. The original literary and artistic works of humans are protected in all the jurisdictions of the world, but these jurisdictions are not uniform in granting protection to the same originality created by the Artificial Intelligence. The IPR laws of different jurisdictions are facing the challenge of devising a way to protect the original works of the AI tools. There can be the following alternatives/solution to the same –

  1. Recognizing AI as the legal person and consequently original author and owner of the work created by it.
  2. Recognizing the authorship of the owner of the AI over the original works of AI.
  3. Recognizing both AI and the owner of AI as the joint authors and owners of the work.
  4. Allowing the AI generated work to be part of the public domain and not protecting it at all.

The different jurisdictions have approached the problem with different solutions mentioned above. While UK recognizes the authorship of the owner of the AI, on the other hand, India recognizes the joint authorship of the owner of the AI and AI itself. USA and Australia do no give due credit to the originality of the works created by AI and allow the same to go into public domain. Apparently, there is no uniform protection regime for the same.

It is a challenge to have a uniform protection regime in such cases because of the following reasons –

  • Since the laws in different jurisdictions are not uniform, it would be difficult to reach a consensus as to what is the best possible way to deal with the problem.
  • The international conventions are silent on this aspect.
  • Every alternative has its legal implications and legal challenges.

The approach undertaken by USA and Australia is directly in conflict with the basic jurisprudential aspects and object of the copyright laws, which is to give incentives to the authors and owners of the work by giving them due recognition and protection for their works. Allowing the AI generated works to go into public domain would discourage the AI developers, AI investors and AI programmers from developing the AI itself which is inconsistent with the growth of the technological, social, legal and economic systems of the world.

On the other hand, granting copyrights to the owner of the arrangement i.e., owner of AI, as has been done by UK, has its own challenges. In such a case, the problem arises with the identification of the owners of the arrangement. The question that needs to be answered is – who is the owner of the arrangement – investors, programmers, coders or the end users of the AI tool? Whether collective ownership of all of them has to be recognized?

India has taken a more progressive approach by recognizing the joint authorship and joint ownership of the AI and the owner of the arrangement. However, it also leads to many legal challenges and ambiguities in the enforcement of such rights. To start with, recognition of the authorship of AI is not consistent with the statutory law of the land i.e. the Copyrights Act, 1957 do not allow for non-human agency to be given the copyright protection. Even if we allow AI to enjoy such rights, it will lead to the ambiguities and certain challenges –

  • What would be the term of protection for AI generated works? Section 23 of the Copyrights Act, 1957 talks about the term of protection as lifetime of the author plus 60 years. But AI is immortal, how can we apply such a principle in case of AI? It would necessarily imply that the AI generated work cannot go into public domain at any time in the future which is certainly not desirable.
  • How can we protect the moral rights of the AI? Who will protect the rights of the AI if co-author uses its work without giving due credit?
  • Who would sue on behalf of the AI, in case of any copyright infringement?
  • Who would be entitled to assign the copyrights of AI and who would receive royalty for the same?

Though, India has taken a bold and progressive step of recognizing AI as the joint author of the original work created by it but still the abovementioned questions pose a challenge, and it would be very difficult to find a solution to them, as AI is a non-human agency and it cannot protect its rights in the real legal world on its own without any human intervention.


The work generated by the AI can be AI-generated or AI-assisted, which can be assessed by looking at the extent of the human involvement in performance of the task. AI-generated work is usually not protected under the provisions of the Copyright Act,1957, due to the ambiguity regarding the 'originality' and 'authorship/ownership' of the work done by the AI system. Hence, it is necessary to amend the laws related to intellectual property in order to accommodate AI within the ambit of the act. Ai-generated work should be protected by all the countries across the globe. As of now, there are no such provisions or laws protecting the work generated by AI. Each country has its own national laws regarding it. India became the first country to provide the joint authorship rights to an AI (Raghav), which can be considered as a good step in the development of rules considering the protection of AI- generated work in India.



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  • Ryan Abbott, Research Handbook on Intellectual Property and Artificial Intelligence, Edward Elgar Publishing Ltd., (2022)


  • Eastern Book Company and Ors. vs D.B. Modak and Ors. 101 (2002) DLT 205


  • The Copyright Act, § 2(z), No.14, Acts of Parliament,1957, (India)
  • The Copyright Act, § 2(d), No.14, Acts of Parliament,1957, (India)
  • The Copyright Act, § 17(a), No.14, Acts of Parliament,1957, (India)


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1. Schlackman S, the next Rembrandt: Who holds the copyright. in computer generated art, Art Law Journal, 2020

2. Eastern Book Company and Ors. vs D.B. Modak and Ors. 101 (2002) DLT 205

3. The Copyright Act, § 2(d), No.14, Acts of Parliament,1957, (India)

4. The Copyright Act, § 17(a), No.14, Acts of Parliament,1957, (India)

5. The Copyright Act, § 2(z), No.14, Acts of Parliament,1957, (India)

6. Saransh Chaturvedi, The Curious Case of Dabus: who should own AI-Related inventions? SCC Blog , (2022)

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