• Vrinda Sehgal

Products of Artificial Intelligence Making Their Way to Protection Under Copyright Law?

With technological advancement surpassing new heights and the growing dependence on machines and automated systems, artificial intelligence has become a part of our daily lives. Alexa and Siri are soon to replace personal assistants and there are growing concerns about the products created by artificial intelligence and whether they should be protected by intellectual property laws. Jurisdictions around the world are divided on this matter and while some countries recognize that the products of artificial intelligence should be protected under copyright law, other countries do not.


The Director General of the World Intellectual Property Organization (WIPO), Mr. Francis Gurry addressed the issue and said that Artificial intelligence is set to radically alter the way in which we work and live, with great potential to help us solve common global challenges, but it is also prompting policy questions and challenges.”[1] Today, copyrightable works can be created through artificial intelligence, including musical and artistic works and this can have implications for copyright law. Since copyrightability is based on originality, the traditional notions of originality are based on creativity by a human author. This is why some jurisdictions such as Spain and Germany have stated that only works created by human beings can be granted copyright protection. However, other countries, including the United Kingdom, have recognised that copyright protection may be granted to works created through computer programs and may be copyrighted by the individuals or corporations who commissioned the works.


Numerous computational creative innovations have come to light in the recent years. For instance, recently, a Google owned computer programme, “Deep Mind” has been launched which can generate music in the artistic styles of the composer, by listening to a compendium of their works[2]. In such a situation, one begs the question, should the computer programme not be granted copyright protection for the musical work created by it? Similarly, E-David is an artist robot with an arm, five brushes, a camera and an optimisation system via visual feedback[3]. Made by the Department of Computer and Information Science at the University of Konstanz in Germany, it is capable of creating original works of art by taking photographs through its camera and then creating artwork of its own. Such works, if created by humans would certainly be copyright protected however, there is uncertainty as to their protection due to their creation through artificial intelligence.


United States Only Grants Copyright Protection to Works Created by Human Beings


The United States Copyright Office updated its definition of “authorship” after the “monkey selfie”[4] case where it was argued by the Plaintiff, People for the Ethical Treatment for Animals (PETA) (representing Naruto, the Monkey) that the selfie resulted from a series of purposeful and voluntary actions by Naruto, unaided by Mr. Slater, resulting in original works of authorship…by Naruto and hence Mr. Slater’s claim to ownership of the picture amounted to copyright infringement. However, the Court held that animals, since they are not human, lack standing under the Copyright Act. The Copyright Office issued specific rules titled the Compendium of U.S Copyright Office Practices, Third Edition and section 306 of the Compendium states that, “The U.S Copyright Office will register an original work of authorship, provided that the work was created by a human being.”[5] Section 313.2, explaining section 306 in detail further states that “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” The basis for this position lies on the theory of the “fruits of intellectual labour” where creativity and intellectual property can only result from an individual’s intellectual labour.


Therefore, it can be observed that the United States’ current position on this issue stands against granting copyright protection to works created through artificial intelligence or non-human involvement, however, what about works where a computer is specifically programmed by humans to create a work of art? This is an issue that has not yet been addressed and may become a matter for great debate. It is also something that may need to be addressed specifically through statutory interpretations in the near future.


India Does Not Specifically Recognise Works Generated Through Artificial Intelligence

The Indian position seems to follow the United States on this issue. As per section 14 of the Copyright Act 1957, “Copyright” is defined as a bundle of exclusive rights in respect of a work and copyright protection is explicitly granted to the expression of an idea, not the idea itself. Section 17 also states that an author of the work shall be the first owner of the copyright, but if the work was created by an employee within the scope of his employment, then the employer shall be the first owner of the work.


Section 2(d)(vi) of the Copyright Act states that, an “author” “in relation to any literary, dramatic, musical or artistic work which is computer-generated (is), the person who causes the work to be created”. This clause therefore gets as close as it can to recognize that computer generated works may also be authored by people who created them. However, the issue at hand and works completely generated through artificial intelligence without any human interference are still in the dark. It can also be understood that the Indian position on this matter is firmly rooted in granting copyright protection only to human beings alone. The Practice and Procedure Manual (2018)[6], issued by the Copyright Office also confirms this by stating that in order to claim copyright registration, the details of only a natural person (human being) should be provided.


In the case of Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd.[7], the Court held that an examination paper is a literary work for the purposes of copyright law and the author of an examination paper is the person who has compiled the questions. This is a natural person and not an artificial person. Similar to the ‘fruits of intellectual labor’ theory, section 13 of the Indian Copyright Act requires that in order to claim copyright protection, a work must be original. Originality has been interpreted by the Supreme Court in the case of Eastern Book Co. v. D B Modak[8] as the modicum of creativityin this context. Therefore, it can be construed that in order to attain copyrightability, a work must match the minimum standard of creativity and be authored by a human being. It is also worth noting that an author is expected to exercise skill and judgment when creating a work capable of attaining copyright protection.[9] Therefore, keeping the current provisions regarding originality and authorship in mind, it is difficult to interpret and apply works created through artificial intelligence in this context. However, it can certainly be argued that works created through artificial intelligence may claim a minimum level of originality and creativity.


Infringement and Accountability Issues


Apart from ascertaining who the author shall be and whether the work is “original” to claim copyright protection, complications arise even with regards to infringement because the question becomes whether a computer or other machine of artificial intelligence can be considered an ‘infringer’ per se. As per the current provisions under the Indian Copyright Act, only a ‘person’ can be considered an infringer. Here, liability can become an issue because it is not possible to sue an artificial person and it may otherwise be difficult to point out an infringing human being behind the machine. Therefore, even if a work created through artificial intelligence is recognised as a copyrightable work, accountability is another matter that shall arise and have to be addressed accordingly.


Statutory Recommendations and The Way Forward


While the courts are yet to address the intricacies of works created through artificial intelligence and their protection under copyright law, the issues surrounding their ownership and originality if created through such computer-generated programs and other artificial means, remains uncertain. What is certain is that policy-makers around the world will soon have to address this issue and come up with a balanced approach that recognizes copyrightability of artificially generated works which encourages intellectual creations and techno-cultural development on the one hand and also preserves the traditional rights of human beings and their own intellectual creations on the other hand.


In order for works created through artificial intelligence to claim copyright protection, the issues surrounding their originality and authorship must be addressed and it should be ascertained whether they amount to originally created works and who actually created them. The current Indian Copyright Act clearly identifies an “author” of a work as a natural person and there seems to be a need for reform in the law on this area with perhaps a separate section in the legislation that deals with works created through artificial intelligence. This section could deal with works created with and without any human interference and with regards to standing or accountability, the ultimate owners or creators of the machine may be held liable. But, in cases of user applications and end users creating the works, it is not possible to hold the inventors of the application liable for infringement and in such cases the end users who were behind the generation of the infringed work, may be held liable.


Despite everything, it is important to remember that humans are behind creating artificial intelligence and the machines in the first place and they are also behind commissioning the creation of the works. Therefore, keeping this in mind, the issue of accountability can also be addressed in a systematic manner, recognizing the chain of the possible people who may have been behind the creation. A strict and traditional approach in the matter is not the correct way forward as it might stifle creative development amongst the new-age generation.


Conclusion


To conclude, it is safe to presume that copyright laws around the world will have to recognize some form of works created through artificial intelligence in the near future. It is only a matter of time that jurisdictions come up with their positions on the matter and perhaps an international treaty addressing this matter is also implemented. While India does not currently and specifically grant protection to such works, with the technological evolvement, a statutory provision may be required sooner or later. A famous saying is, “who knows what the future holds” and this statement is apt here because the future is full of opportunities and more technology. When dependence on robots increases and when robots are already being granted citizenships, for instance, Sophia[10], the robot became the first artificially intelligent “person” to be granted citizenship of Saudi Arabia, maybe machines and robots may even fall under the legal definitions of “persons” and be able to claim more rights, including intellectual property rights.








For any queries, please write to the author, Ms. Vrinda Sehgal, Associate, at vrinda@iprattorneys.com.












References:

https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html

https://www.lexology.com/library/detail.aspx?g=88824c6f-fcc9-4934-a7c8-6b27dd0d565c

https://www.lexology.com/library/detail.aspx?g=404f4311-bcc4-4049-b62e-d521ccca90e1

https://www.mondaq.com/india/copyright/876800/artificial-intelligence-and-copyright-the-authorship

● https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Literary_Work.pdf

● https://www.lawyerservices.in/Rupendra-Kashyap-Versus-Jiwan-Publishing-House-1996-07-01

● https://www.wipo.int/pressroom/en/articles/2019/article_0017.html

● http://www.nlujlawreview.in/wp-content/uploads/2020/04/62-NLUJ-Law-Review-93-2020.pdf

● https://www.ijlmh.com/wp-content/uploads/2019/03/Artificial-Intelligence-And-Intellectual-Property-Laws-In-India-Is-It-Time-For-Renaissance.pdf

● Eastern Book Company v. D. B. Modak, 92008) 1 SCC 1.

● Naruto v. Slater, No. 16-15469 (9th Cir. 2018)

Rupendra Kashyap vs. Jiwan Publishing House Pvt. Ltd 1996 (38) DRJ 81






[1] https://www.wipo.int/pressroom/en/articles/2019/article_0017.html [2] https://deepmind.com/about [3] http://graphics.uni-konstanz.de/eDavid/ [4] Naruto v. Slater, No. 16-15469 (9th Cir. 2018) [5] https://www.copyright.gov/comp3/ [6]https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Literary_Work.pdf [7] Rupendra Kashyap vs. Jiwan Publishing House Pvt. Ltd 1996 (38) DRJ 81 [8] Eastern Book Company v. D. B. Modak, 92008) 1 SCC 1. [9] Eastern Book Company v. D. B. Modak, 92008) 1 SCC 1. [10] https://en.wikipedia.org/wiki/Sophia_(robot)

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