INTELLECTUAL PROPERTY - INDIA AUTHORS

Suvarna
AI and copyright authorship: still mind over matter? Mandal

02 March 2020 | Contributed by Saikrishna & Associates

Introduction
AI-generated work and copyright authorship
Ambiguities in AI-generated works
Can Copyright Act handle forward march of AI systems?
Amshula
Chauhan
Introduction

E-David is a prodigy artist robot equipped with an arm, five brushes, a camera and an optimisation
system via visual feedback. Developed by the Department of Computer and Information Science at
the University of Konstanz in Germany, E-David creates original artwork by autonomously taking
pictures with its camera, using a complex visual optimisation algorithm and accordingly creating
original paintings from these photographs.(1) Such original artwork, if created by a human being,
would certainly be capable of copyright protection.

Over the last decade AI systems and machines have been passing the so-called 'Turing Test', which
determines whether a computer system can play the 'imitation game' and exhibit intelligent
behaviour equivalent to or indistinguishable from that of a human. A computer is deemed to pass
the Turing test if a remote human evaluator is unable to distinguish whether the output is machine or
human created.

In recent years there has been an increase in creative AI systems passing the Turing Test to produce
original copyrightable works. For instance, the Iamus software program creates musical works that
have been performed by the London Symphony Orchestra.(2) Similarly, in 2011, Zackary Scholl
created poetry-writing software which produced a poem that was accepted for publication in a
literary journal and the editors did not realise that it had been written by a computer program.(3)

AI systems are evolving rapidly and their capacity to be creative, autonomous, rational and self-
learning are blurring the lines between original works, which are products of human intellect capable
of copyright protection, and mere computer-generated works. As such, the AI landscape is
challenging conventional copyright laws in India and internationally and raising a number of legal
implications and ambiguities regarding ownership, authorship and accountability in AI-generated
works.

AI-generated work and copyright authorship

For copyright to subsist in literary, dramatic, musical and artistic works, Section 13 of the Copyright
Act 1957 specifies that it must be original. As the act does not define the term 'original', in Eastern
Book Co v D B Modak the Supreme Court adopted the 'modicum of creativity' standard for
determining whether a work will be afforded copyright protection.(4)

According to this standard, original copyrightable work must meet the "minimum requirement of
creativity" and should not be merely an outcome of skill and labour. As the threshold requirement of
creativity is not particularly high, an AI-generated work may meet this originality standard and be
copyrightable.

However, pursuant to meeting the modicum of creativity standard, the second essential question
under the Copyright Act is deciding the author of a work. Section 2(d) of the act defines the author of
"any literary, dramatic, musical or artistic work which is computer-generated" to be "the person who
causes the work to be created". This definition is aligned with UK copyright law.

As AI-generated works fall under the category of computer-generated works, the author of an AI-
generated work will not be the AI system, but rather the person who caused the work to be created.
By excluding artificial persons, this definition implies that only natural persons can be protected as
authors under the Copyright Act. In fact, attributing authorship of computer-generated works to
natural persons is confirmed in the Practice and Procedure Manual (2018),(5) issued by the
Copyright Office, which states that in the application for copyright registration for literary works,
only "the details of the person(s), who has actually created the work i.e. only natural person (human
being), should be provided".

The Delhi High Court's judgment in Amarnath Sehgal v Union of India is useful to examine the
essence of authorship under copyright law in India.(6) In this judgment the court recognised
"authors moral rights" pursuant to Section 57 of the Copyright Act (ie, the right of paternity, the
right to maintain purity or integrity in a work and the right of retraction). These rights, the court
observed "originate from the fact that the creative individual is uniquely invested with the power
and mystique of original genius, creating a privileged relationship between a creative author and his
work". Therefore, in cases where the work is AI generated, the AI system's recognition of this
privileged relationship between work and author will be difficult to establish. An AI system may be
unable to ascertain the 'morality' behind the underlying reputation and honour associated with the
work and the author.

Therefore, while an AI-generated work may be deemed 'original' in the current technological
landscape and given the extant legal framework, the AI system may not be attributed authorship
thereof.

Ambiguities in AI-generated works

As AI systems are not natural persons and AI-generated works are considered computer generated
under Section 2(d) of the Copyright Act, an ambiguity exists regarding the identification of the
"person who cause[d] the work to be created". Is it the person who programmed or created the AI
system, the owners of the AI system or companies and financial investors in the AI sector or is it the
end user who uses the AI system to generate a certain output? The lack of clarity and the
complexities involved in determining the author of an AI-generated work in turn make it difficult to
determine the 'first owner' of a copyright under Section 17 of the Copyright Act, which is typically
the author of a work, subject to certain statutory exceptions.(7)

A related issue arises from the fact that, under Indian copyright law, in certain situations copyright
ownership may be granted to non-natural, legal or juristic persons (eg, companies, organisations or
the government). Therefore, if future AI systems are declared legal or juristic persons, they could be
granted copyright ownership in certain situations; however, this would generate issues relating to
copyright transferability and the financial and commercial aspects of copyright ownership.

In general, AI systems are not considered natural persons (thereby removing the issue of affording
AI systems copyright authorship), but the lines appear to be blurring with regard to the recognition
of AI systems as legal persons.

The Indian courts have yet to address these intricate issues surrounding AI-generated works and
copyright authorship and ownership.(8)

Can Copyright Act handle forward march of AI systems?

As AI systems develop capabilities traditionally attributed to humans, such as creativity and

With the reduction in human intervention in AI systems and AI-generated works, policymakers
globally may eventually have to create systems and codes which consider the moral, commercial
and accountability aspects of copyright protection in AI-generated works as well. It would be
interesting to see how the law evolves to protect and encourage AI developers and users on the one
hand and AI systems and their potential juristic personality on the other.

For further information on this topic please contact Suvarna Mandal or Amshula Chauhan at
Saikrishna & Associates by telephone (+91 120 463 3900) or email
(suvarna@saikrishnaassociates.com or amshula@saikrishnaassociates.com). The Saikrishna &
Associates website can be accessed at www.saikrishnaassociates.com.

Endnotes

(1) Shlomit Yanisky-Ravid, "Generating Rembrandt: Artificial Intelligence, Copyright, and

(2) Robert Denicola, "Ex Machina: Copyright Protection for Computer-Generated Works", Rutgers
University Law Review, 251 (2016).

(3) Brian Merchant, The Poem that Passed the Thring Test, VICE Motherboard (Accessed 5 February
2015). Available here.

(4) (2008) 1 SCC 1.

(5) Practice and Procedure Manual (2018), Copyright Office, Goverment of India. See here.

(6) 2005 (30) PTC 253 Del.

( 7 ) The Chinese courts have ruled that AI-generated works are entitled to copyright protection and
have attributed ownership to AI tool creators. See "AI produced work is also entitled to copyright;
rules a Chinese court", TechGig. Available here.

(8) In 2017 Saudi Arabia granted an AI humanoid ('Sophia') citizenship, which raised questions as to
the copyright ownership and accountability of AI systems.

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