AI GENERATED ARTWORKS & COPYRIGHT
Jai Vignesh K
Associate – Intellectual Property Rights Practice
INTRODUCTION:
Copyright safeguards the creative endeavours of individuals such as authors, musicians, historians, scientists, and dancers, among others, by granting them intellectual property rights. To be eligible for protection, the work must possess originality or present a fresh perspective on existing creations. As stated in TRIPS (Trade-Related Aspects of Intellectual Property Rights), copyright covers the expression of ideas but does not extend to ideas themselves, procedures, operational methods, or mathematical concepts in their raw form.
There has always been controversy surrounding the idea of an artificial intelligence system producing any particular work of art. Critical problems about authorship, licensing, and reproductive rights are raised by generative AI systems and the art they make. Ranging from issues about general policy to the particular interests of the artists who contributed to the work’s development[1]. To address the contrasting landscape, this brief paper aims to thoroughly analyse the legal complexities surrounding the copyrightability of AI-generated art, employing a multifaceted approach that considers multiple jurisdictions.
AI ART EXPLAINED:
Over the past fifty years, artists have increasingly utilised computers to create various forms of digital art. However, during this period, artists were required to write the code that defined a set of rules to generate the desired aesthetic outcome. Within the last couple of years, artists have taken AI art to a whole new level, using algorithms that learn these aesthetics and apply them by analysing thousands of images[2].
AI generated art is created autonomously by artificial intelligence without creative contribution from humans. Such works qualify as ‘computer generated works’ under the Indian Copyright Act. The classification of computer-generated works as a distinct category was introduced in 1995, a period when the emergence of artificial intelligence (AI) as a creator of art was not yet prevalent.
To create AI-generated art, artists use AI as a creative tool and work with algorithms to set up specific rules through which machines analyse thousands of images to comprehend a particular creation process, like a specific style or aesthetic. The algorithms then generate novel forms, shapes, figures, and patterns to produce new works.
Two categories of creative works can be produced by the involvement of AI –
- “AI-generated” work; and
- “AI-assisted” work.
ISSUES ON AUTHORSHIP:
Since the 1970s, there has been a significant increase in the usage of computer programs to create copyrighted works. Regarding copyright ownership, the computer-generated works did not cause many issues. The reason was that computer programs were viewed as merely supports for creative activity, and human involvement was necessary for the creation of the piece. With AI in place, computer programs are no longer only tools; they now have the capability of independently creating works by making their own decisions.
Nowadays, AI is employed in diverse domains, including the creation of local news articles, poetry, music albums, and even architectural designs[3], etc. In such cases, two important questions arise:
- Who owns the copyright in a work created by AI?
- Who is responsible for infringement by AI of copyrighted works?
Protection of copyright in India
In India, the Copyright Act, 1957 sets out the requirements for copyright protection. According to this act, a work must meet two key criteria to be eligible for copyright protection. First, it must be original, meaning that it must originate from the author and not be copied from another source. Second, the work must be expressed in a fixed form, such as writing, recording, or digital format. The Indian Copyright Act does not define originality and the courts have interpreted the criterion of originality on a case-by-case basis. Essentially, the work must not be merely a result of labour and capital expenditure alone.[4]The sine qua non of copyright is originality. There are two doctrines associated with the test of originality for a work.
They are: i) Sweat of the Brow Doctrine.
ii) Modicum of Creativity.
According to the Sweat of the Brow Doctrine, an author can get a copyright on his work by employing simple diligence. There is no requirement of substantial creativity or originality. He is entitled to a copyright only on account of efforts and expense put in by him in the creation of such a work.
Modicum of creativity emphasises the presence of a minimal level of creativity in a work. The focus here is on the originality and novelty of the expression, rather than the amount of effort invested. The Indian Courts have adopted this test in the case of Eastern Book Company v D.B. Modak[5].
Can Copyright vest in an AI?
The fundamental purpose of intellectual property law is to safeguard the rights of creators or originators of intellectual property[6]. Copyright laws specifically aim to: (i) to foster creativity and incentivize authors, composers, artists, and designers to produce original works. (ii) serves to shield creators of original works from unauthorised reproduction or exploitation of their creations.
Under Indian law, only a natural person may be considered the author of a copyrightable work.The Indian Copyright Office has also expressed uncertainty regarding the treatment of applications involving AI-generated works. In a reported incident in 2020, an application claiming sole authorship by an AI (RAGHAV) for an artwork was rejected. However, a subsequent application was filed where both a natural person and AI (again, RAGHAV) were named as co-authors, and registration was granted. The basis for this registration remains unclear, as the Copyright Office later issued a withdrawal notice, seemingly suggesting that it granted registration by mistake without proper consideration. Therefore, in India, if protection is sought for AI-created works, it is necessary to attribute authorship to a natural person.
The United States of America, one of the world’s largest sources of new intellectual property[7], recognizes copyright as “the fruits of intellectual labour…founded in creative powers of the mind”. The United States Copyright Office has indeed taken the position that copyright protection is limited to works created by human beings. However, it’s worth noting that this position may evolve in the future as technology advances and legal considerations continue to develop.
In 2012, an Australian court declared that any work generated by a computer is not protected under copyright law[8]. In Taiwan, Article 798 of the Civil Code provides, “Fruits that fall naturally on an adjacent land are deemed to belong to the owner of such land, except if it is a land for public use”. The “fruits” generated by AI are considered community property and are not capable of copyright protection[9].
The Court of Justice of the European Union (CJEU) has emphasised the requirement for a work to be the author’s own intellectual creation in order to qualify for copyright protection. This means that the work must be the result of the author’s creative choices and reflect their personality and individual expression, i.e. in order for a work to be protected, the author’s personality must be reflected in the original work[10]. In the case of AI-generated works, the question of originality is indeed subject to debate.
In 2017, the European Parliament did propose a discussion on the possibility of granting legal person-hood to machines, which would involve recognizing them as having certain rights and responsibilities. In October 2020, the European Parliament released a report addressing intellectual property rights for the development of AI technologies. The report acknowledges that under current European Union (EU) laws, AI-created works may not meet the criteria for copyright protection since the requirement of “originality” is closely tied to the concept of “intellectual creation” by a natural person. However, the European Parliament recognized the importance of granting copyright protection to AI-generated works and proposed a potential approach.
Unlike other jurisdictions, China appears to have recognised that copyright may exist in AI-created works when, in January 2020, a court in Shenzhen, China, afforded copyright protection to articles generated by the AI, Dreamwriter.[11]
Under English copyright law, for computer-generated works, the author is taken as the person “by whom the arrangements necessary for the creation of the work are undertaken”. Considering the complexity and collaborative nature of AI development, it may indeed be challenging to identify a single natural person responsible for an AI’s actions or creations.
AI, as it exists today is considered in its early stage and it has been evolving ever since and will reach a stage where it requires only the idea from the human being and the rest will be done by the AI itself (OpenAI’s CHAT GPT). At this stage, attributing authorship of AI-created works to the human creator of the program remains the most practical approach. This approach aligns with the core objective of intellectual property law, which is to protect and reward the rights of human creators.
Who is responsible for breaches of Copyright by AI?
Under the current legal frameworks, liability for copyright infringement typically falls on a natural person rather than the AI system itself. As AI systems are tools created and utilised by human beings, the legal responsibility for any infringements or violations of copyright would generally be attributed to the human creator or operator of the AI. This approach ensures accountability and aligns with the principle of holding individuals accountable for their actions or the actions of the technologies they create. It’s important for creators and operators of AI systems to be aware of potential copyright issues and take appropriate measures to ensure compliance with intellectual property laws to avoid liability for infringement. As the field of AI evolves, legal frameworks may continue to develop to address the unique challenges and considerations raised by AI-generated works.
Further, human accountability in AI-created works will be extremely difficult to enforce, in the absence of any mens rea. For instance, if any work created by AI in India is defamatory or obscene or against public morals, then the test of defamation i.e. “intention to harm” cannot be met, either by the human author or by the AI. Currently, both international and domestic legislation have not established provisions for attributing authorship or imposing liability specifically for infringements that may arise in relation to AI-created works.
Complications associated with Recognizing AI as Author of Copyright
The Indian Copyright Legislation does not currently provide explicit provisions or guidelines regarding the recognition of AI as an author of a work. To determine whether the Indian Copyright Legislation is capable of accepting AI as an author, it would require an analysis of the existing provisions within the legislation and their applicability to AI-generated works. However, as of now, there is no clear legal framework in India that explicitly addresses Given the evolving nature of AI and its impact on creative production, it may be necessary for the Indian Copyright Legislation to undergo amendments or updates to address the issues surrounding AI-generated works, including the recognition of AI as an author.
Pursuant to Section 17 of the Copyright Act 1957, author of the work is recognized as first owner of the work. However, in certain situations, under an agreement the rights of ownership are transferred to the employer or the person on whose instance the work is created. Therefore, in case of AI, the transfer of ownership will be difficult to establish as the AI cannot execute or authorise its creator or any other person, to become the owner of the work.
Pursuant to Section 57, the special rights of the author may also be disputed. Moral rights, such as the right to paternity and the right to integrity, are intended to protect the personal and reputational interests of the human author. In the case of AI-generated works, where the AI is considered the author, it becomes challenging to attribute these moral rights to a non-human entity. Hence, recognizing AI as the author of a work raises legitimate concerns about the practicality and meaningful application of moral rights. Given that AI lacks human emotions and subjective experiences, enforcing moral rights through AI may not be suitable or meaningful.
According to the existing copyright laws in India, the author of a work is entitled to claim royalties, and this right cannot be waived. Therefore, where the AI is author of the work, the question of who will determine the royalty, how will the royalty be disbursed to AI, where the AI is able to fix the amount of royalty then should the amount must be determined on its reasonability.
For any work by AI, the accountability of AI over any creation will be difficult to enforce. For example, if any work created by AI is defamatory or obscene or against public morale, then no action against AI can be taken except either removing the content from the public domain or shutting down the AI (in extreme situations). However, such negative work by AI may cause more harm, and without any accountability to regulate the work of AI, it will be difficult to give acceptance of authorship in favour of AI[12].
The Road Ahead
Artworks and other forms of creative works are progressively receiving the recognition they truly deserve in terms of copyright protection. Notably, notable reforms in countries such as the UK, Ireland, Hong Kong, New Zealand, and others have acknowledged the ability of AI programs to produce original and evocative artistic representations with little or no human involvement. Consequently, the line between artwork created by humans and that produced by computers becomes further blurred[13]. It is only hoped that other jurisdictions amend their legislation to reflect these nuances.
Existing intellectual property frameworks were not originally designed to address the complexities of AI-generated works. In the absence of specific legislation, the approach to handling issues of authorship in AI-created works tends to be determined on a case-by-case basis. This approach allows for a flexible evaluation of the unique circumstances and considerations involved in each situation. Treating AI-related copyright and authorship matters on a case-by-case basis enables courts and legal authorities to carefully analyse the specific facts, technological aspects, and human contributions involved in the creation of AI-generated works.
In the near future, it is likely that the works of AI systems will not be denied intellectual property (IP) protection solely based on the argument that they are not humans or legal persons. In the pursuit of inclusive growth and progress, it is important to embrace and incorporate advancements in science and technology, including AI. However, it is crucial to strike a balance between recognizing the achievements of AI systems and ensuring that human creators and contributors are appropriately acknowledged and protected. As AI technology continues to evolve, it is likely that legal frameworks and international discussions will continue to shape the treatment of AI-generated works, including their eligibility for IP protection. A world deployed on AI is a destiny chosen by humans and it will be preferable to be appropriately prepared for this age of science where it is not mere fiction and therefore, in order to maintain the balance with AI generated work and other copyright, it is important to structure and identify the rights and limitations of the work created by AI.
[1] Sarah Pattishall, AI can make art but can it own copyright in it or own it, Lexis Nexis, 2019
[2] Invaluable, How Artificial Intelligence is Changing the face of Art, https://www.invaluable.com/blog/ai-art/
[3] Samuel R. Bowman, Luke Vilnis, Oriol Vinyals, Andrew M. Dai, Rafal Jozefowicz & Samy Bengio, Generating Sentences from a Continuous Space, 12 May 2016
[4] This ‘Modicum of Creativity’ Doctrine originated in the United States in the case of Feist Publications, Inc. v. Rural telephone Service Co
[5] Eastern Book Company v D.B. Modak, 2008 1 SCC 1.
[6] Andrew Beckerman-Rodau, The Problem With Intellectual Property Rights: Subject Matter Expansion
[7] World Intellectual Property Indicators, WIPO, (2019)
[8] 6 Acohs Pty Ltd v. Ucorp Pty Ltd., (2012) FCAFC 16
[9] u, Margaret Yun-Pu, Copyright Ownership for Outputs by Artificial Intelligence, Science and Technology Law Institute
[10] C-5/08 Infopaq International A/S v. Danske Dagbaldes Forening.
[11] Aaron Wininger of Schwegman, Lundberg & Woessner, P.A., Shenzhen Court Rules AI-Generated Articles are Entitled to Copyright Protection
[12] https://www.mondaq.com/india/copyright/876800/artificial-intelligence-and-copyright–the-authorship
[13] Andres Guadamuz, Artificial Intelligence and Copyright, WIPO Magazine, October2017