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Artificial Intelligence and Copyright – The Authorship

December 5, 2019

By Lucy Rana and Meril Mathew Joy

Copyright is a legal right which provides protection to the original creations of human mind and intellect. Copyright protection in India protects creation, which is not mere idea, therefore, once the creation is an expression of the author and not merely an idea, then such work may be protected

Under section 14 of the Copyright Act 1957, “Copyright” is defined as the exclusive rights of owner to do or authorise the doing of any acts (such as reproduce work, publication of work, adaptation and translation etc.) in respect of a work. Further, section 17 of the Act states that the author of the work shall be the first owner of the copyright, however, if the work is created under a contract for consideration and upon instruction of employer, then in such a situation the owner of the work is the employer. The below table provides the details of ownership in certain situation, in the absence of any agreement to the contrary:

Particular Owner
In course of employment by the employer, under a contract of service or apprenticeship The Employer
Where photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film is made, for a valuable consideration and on instance of any person Person at whose instance the work is made.
In the case of any address or speech delivered in public Person delivering the address or speech
In the case of any address or speech delivered in public, on behalf of any other person  Other Person whose behalf the speech is delivered
In the case of a Government work The Government
In the case of a work made or first published by or under the direction or control of any public undertaking The Public Undertaking
In the case of a work of International Organisations (to which the provisions of section 41 of Copyright Act 1957 apply) International Organization

 

Further, the Author, is defined under section 2(d) of Copyright Act 1957, as:

“author” means, —

  1. in relation to a literary or dramatic work, the author of the work;
  2. in relation to a musical work, the composer;
  3. in relation to an artistic work other than a photograph, the artist;
  4. in relation to a photograph, the person taking the photograph;
  5. in relation to a cinematograph film or sound recording, the producer; and
  6. in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;

The Hon’ble Court in Rupendra Kashyap Vs. Jiwan Publishing House Pvt. Ltd.,[1] held that in the context of question papers for an examination, that the author of the examination paper is a person who has compiled the questions; the person who does this compiling, is a natural person, a human being, and not an artificial person; Central Board of Secondary Education is not a natural person and it would be entitled to claim copyright in the examination papers only if it establishes and proves that it has engaged persons specifically for purposes of preparation of compilation, known as question papers, with a contract that copyright therein will vest in Central Board of Secondary Education.[2] Similarly, in other judgments the courts have observed that a juristic person is incapable of being the author of any work in which copyright may exist.[3] This is also settled with the Practice and Procedure Manual (2018) issued by Copyright Office, which clearly states that for the purpose of Copyright, only natural person details must be provided as Author of the work.

The reasoning of requirement of author being natural person is based on the observations of Courts, in various jurisdictions, determining copyright in a work. Some instances are as under:

  1. Author is the first owner of the copyright.[4]
  2. Elements of authorship in selection, coordination and arrangement of material are necessary for protection of a compilation.[5]
  3. Compilation developed by anyone devoting time, money, labour and skill amounted to a literary work wherein the author had a copyright.[6]
  4. The copyright-ability of the work is tested from the original work (being creativity) and exercise of skill and judgments by the author.[7]

Work of Artificial Intelligence

It is observed that since 1970s computer generated art works have attracted a lot of attention. Most of these computer-generated artworks are relied heavily on the programmer who provides the input for creation of the work. However, with technological advancement, artificial intelligence has developed to the extent that it is capable of understanding and creating results/ outputs without any interference by the human.[8]

Major question raised in this regard, is with respect to the protection over the work created by the Artificial Intelligence. With the existing legislation of Indian IP laws especially copyright, the idea of extending copyright protection to artificial intelligence for works created appears to be difficult. The works created by AI can be categorized as “works created by AI with human interference” and “works created by AI without any human interference”. In such case, let us try and answer the following questions:

Who is the Author of the such works?

Where work is created by AI with human interference, in such case since there is a human input, therefore, the creativity in the work can be derived from the input of the human. In such cases, the authorship can be attributed to the human.

Where work is created by AI without any human interference, in such case where there is no human input, the area of law is not clear with authorship. In such situations, the following can be an approach:

The work is generated by AI without any human input, then in such cases, the authorship may vest with the author of the AI who has developed the program creating the AI.

Where work is created by the AI without human assistance, then an assumption can be derived that the programming of the AI is made in such a manner that it can create and identify equations to generate a result on its own, and therefore, the creativity may vest with the programmer who has created the AI, with sufficient programming.

Is Ownership of the work disputed in case of work created by AI?

The situation is same as authorship. Where work is created by the AI with human interference, then the ownership over the work may claimed by the human who provides creative inputs to the AI, whereas in case of work created by the AI without any human interference, the ownership may be claimed by the copyright owner of the AI, i.e. who holds copyright over the AI software.

Is Indian Copyright Law equipped to handle work created by AI?

As discussed above, the existing Indian copyright law is not exhaustive to give rights to AI for creation of work. India has time and again focused on requirement of human interference for a copyright protection, however, the scope of opening gates to accept AI as separate entity still looks doubtful.

Possible Issues that may arise if Artificial Intelligence is accepted as separate entity and works created are protected thereunder?

Creation on existing information/ contents – When we talk about work created by AI, we need to understand that such creation by AI will be based on the contents or parameter or the extent of information to which the software program allows it to explore. AI is dependent on its programming, in order to generate a result. The AI may be able to explore and analyse the information, which is already available, and therefore a creation therein is based information, either available publicly or which is a copyright of some other person. Basically, AI is not capable of creating an original content, whereas the work created is an adaptation or modified version of existing information in the public domain. Therefore, recognition of AI as separate entity and protecting work separately may lead to copyright violations of other copyright holders.

Issue of Originality: When we talk about copyright under Copyright Act 1957, we refer to section 13 of the Act which defines “works in which copyright subsists”. The relevant portion of the provision is as under:

13. Works in which copyright subsists.— (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,—

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) sound recording.

The above provision clearly defines that for a work to be eligible for literary, dramatic, musical and artistic work, the said work must be an original work. The term “original work” is not defined in the Act, however, while deciding the originality the Court usually check the following parameters:

  1. Whether the idea and expression are intrinsically connected. (Doctrine of Merger)
  2. Whether the work was created with skill and labour by the author. (Sweat of the Brow Doctrine)
  3. Whether the work possess minimum degree of creativity. (Modicum of Creativity Doctrine)
  4. Whether the work is created with mere skill and labour or whether the work possess skill and judgment. (Sweat of the brow/ Skill and Judgment Test)

For an AI to claim ownership / authorship over a copyright, the work so created, if literary, dramatic, musical and artistic works, must be original and must stand qualified on the above tests of originality. However, the question whether AI can create original work is still debatable. Under the Copyright Act 1957, literary work recognizes compilations and since the AI is dependent on the existing information and the exposure of the programming, the work so created may qualify as compilation and therefore protectable as copyright. However, alternate arguments state that the work so generated is mere collection without any skill and judgment.

Considering the judgment of the Hon’ble Supreme Court of India in Eastern Book Company & Ors vs D.B. Modak & Anr. ((2008) 1 SCC 1) which observed that “To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non- obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour.” and therefore it is a requirement for any compilation or derivative work to show Skill and Judgment.

Issue of Infringement: If AI is accepted as the author and owner of the work generated by it, then an important question raised in Who will be held liable for any infringement done by such AI or its creation. Section 51 of the Copyright Act 1957, clearly mentions that:

  1. When copyright infringed.— Copyright in a work shall be deemed to be infringed—

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act—

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

(b) when any person—

(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public, or

(iv) imports 2*** into India, any infringing copies of the work

Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.

Analysing the above provision it can easily be said that copyright in a work can only be infringed by a “person”. Since the legal status of the AI is still not classified as a legal entity, therefore, any infringement caused by AI will become a serious issue. In case of AI, it will become much more difficult to place the liability for any infringement caused by AI. Since the AI has no legal status of its own, therefore, the issue of giving AI – authorship rights, may become weak unless a proper channel and chain can be established to create liabilities for the acts of AI.

Complications associated with Recognizing AI as Author of Copyright

In order to correctly analyse the complications behind recognizing AI as an author of the work, we first need to understand whether the Indian Copyright Legislation is capable to accept AI as an author to the work. Let us review few circumstances to analyse the AI and existing Copyright laws:

  1. Pursuant to Section 17 of the Copyright Act 1957, author of the work is recognized as first owner of the work. However, in certain situation, 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 authorize its creator or any other person, to become the owner of the work.
  2. Pursuant to Section 57, the special rights of the author may also be disputed. The special rights of author, known as moral right, includes right to paternity (right to be associated and recognized with the work) and right to integrity (right to restrain or claim damages against any act which may be prejudicial to author’s honour or reputation). Therefore, if an AI is recognized as an author of the work then these rights may become redundant, as AI may not be able to ascertain whether any act has affected the honour or reputation of the original work. The rights enumerated as moral rights have more of emotional and human feelings attached to the work, and therefore, these rights may not be suitable for enforcement by the AI.
  3. Pursuant to the existing copyright laws of India, the author of the work has a right to claim royalty which 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 whether the amount must be determined on reasonability.
  4. For any work by AI, the accountability of AI over any creation will be difficult to be enforced. 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 situation). 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.

The Practical Conclusion

Based on the above discussions, it may be concluded that the Indian legislations are not sufficiently equipped to discuss the rights of AI and its creation. The Copyright Act 1957 clearly classifies the author to be a person and unless the AI are given a legal status to this effect, the inclusion of rights for AI cannot be in question. Further, the alternative approach is to amend the Copyright Act 1957, to include AI related works as a separate category or to give AI recognition to be an author. However, neither the amendment in legislation nor the recognition of AI as legal entity, looks a probable option in near future.

An Argument in Favour Of Considering AI Related Works

Irrespective of the limitation of the Copyright Act 1957, it is important to note that the work of AI may at instance qualify as original work, by virtue of compilation or arrangement of structure. It is still debatable whether the work so created use skill and judgement, however, by virtue of its programming and parameter on which such AI actually compiles and creates the work, may be considered as use of skill and judgment and therefore, in such cases can be classified as original work.

Further, a counter argument to this effect may be raised stating that the programming / parameters on which works are generated by AI, such codes are provided by a human interference. To the extent, this argument is acceptable, however, mere setting up of codes cannot make a human, the author of every creation by AI, especially when the work created by AI was done without any human interference (at the time of creation).

Issues with AI related also arises when we talk about liability in case of any infringement caused by AI. Keeping aside the limitations of the Act, it is important to first identify the possible solutions that can be provided to address all the above discussed issues with respect AI generated works. As an attempt to show a possible way out, the following options may be explored:

  1. AI related works can be recognized as separate class of work.
  2. Where work is created by AI with human interference, in such cases, the following recognitions may be considered:
  3. Owner of the work – Human who provides creative inputs
  4. Author of the work – AI
  5. Where work is created by AI without human interference, in such cases, the following recognitions may be considered:
  6. Owner of the work – Person who owns the AI
  7. Author of the work – AI

By considering the above options, the issues raised can be addressed as under:

  1. The Authorship to AI can be granted. However, the Copyright Act will be required to recognize AI as a separate entity or identify AI generated work as separate class of work.
  2. The owner of the AI will be responsible for the work generated by AI, and will also be liable for the purpose of any infringement caused by the AI generated work.
  3. The work created by AI without any human interference may be classified as work of skill and judgment, since the work generated by AI is prepared on the parameters / codes on which the AI works, and since the AI uses these parameters/ codes without any interference therefore the authorship/ creation can be attributed to AI.

With the advancement in technology and considering the efficiency of AI, providing AI with recognition is not a bad idea. With time the creation is slowly moving towards AI related works 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] 1994 (28) DRJ 286.

[2] Navigators Logistics Ltd. vs Kashif Qureshi & Ors. (CS(COMM) 735/2016)

[3] Tech Plus Media Private Ltd. Vs. Jyoti Janda, (2014) 60 PTC 121; Camlin Pvt. Ltd. vs National Pencil Industries, AIR 1986 Delhi 444.

[4] Section 17, Copyright Act 1957.

[5] Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991).

[6] Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber, 61 (1995) DLT 6.

[7] Eastern Book Company v. D. B. Modak, (2008) 1 SCC 1.

[8] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine available at https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html

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