Artificial Intelligence and Copyright: Exploring the Intersection
Our daily lives have changed as a result of artificial intelligence’s expanding importance in the fields of medicine, space, education, entertainment (music, art, gaming, and movies), industry, and many other fields, and there is no exception in the field of intellectual property rights. The contribution of AI to creativity and innovation has gained widespread acceptance. Particularly in copyright, patents, designs, and trade secrets among other sorts of IPRs, AI has a vital role to play. Besides writing blogs, books, poetry, and music, AI is also capable of creating paintings and sketches. Nonetheless, it is important to distinguish between works produced by humans with AI’s assistance and those produced entirely by AI.
AI has created serious issues and posed challenges in the areas of intellectual property rights more particularly in copyright law along with its legal position in several countries.
The Role of AI in Copyright Infringement and Plagiarism
Today artificial intelligence is capable of doing almost anything, from generating virtual images through text or making websites in just a few seconds with a set of instructions. This, however, affects the originality of most things. As of now, anybody is capable of producing content in the form of images, text, or videos. Copying it from any other creator or inventor is easy for anybody who is well in touch with artificial intelligence. This leads to problems like copyright infringement and plagiarism in content. But then various tools run on AI-based algorithm that assists in Plagiarism detection as well as the removal of plagiarism. This therefore often comes in the grey zone as to whether AI is actually assisting the industry or making the path of plagiarism and hiding the same in plain sight possible.
Protecting Copyrighted Works in an AI-Driven World
Since there are uncountable ways of stealing a person’s literary or artistic work, it becomes increasingly important to maintain and develop a system that can prevent these infringements. Common practices like watermarking artistic work and keeping a normal vigil spreading awareness about AI detection tools are some suggestions that can help protect your work from infringement or plagiarism.
AI's Impact on Fair Use and Transformative Works
Fair use is the situation in which a person’s original work is used for the purpose of criticism, making a commentary, for an educational/non-profit function, or for a new purpose. With the addition of artificial intelligence to the equation it is much more complex now. As the artificial systems that have been made to flag copyright infringement content might also flag the fair use work.
Transformative work is the procedure of copying one’s original creation and then adding value in form of some research or anything that adds to it. In simple terms, it is just making a personal touch to the original work with a few upgrades. This can also be flagged by the automated artificial intelligence software that is looking for infringement content. No matter the advancement we have seen so far, the system or a program to differentiate the infringing content and fair use work and infringement work is yet to be developed, and till then for such identification and differentiation, the involvement of human intelligence would be required.
Ethical Considerations for AI and Copyright Protection
While we’ve discussed the position of AI and Copyright and how they work alongside each other, quite recently some ethical considerations have also emerged. Some are mentioned below:
Generation of an enormous amount of work from an authorless source.
With little money invested and in a relatively short length of time, AI has the ability to produce vast amounts of labor. Due to their originality, AI-created works can be eligible for copyright protection in all relevant jurisdictions. By virtue of the “programming and parameter on which such AI really compiles and develops the work,” the criteria of use of “skill and judgment” in originality may be regarded to have been satisfied. But, in the event of work produced by AI, there won’t be an author. Human intervention is present in AI-assisted works. Hence, in the latter situation, the person who employed artificial intelligence to create the work may claim to be its author; however, this is not the case when AI independently developed the work without human involvement. The question of authorship in these situations has perplexed nations all across the world.
Can machine creativity and human creativity be on the same pedestal?
The author is encouraged to generate more creative works by employing his abilities, labor, and judgment thanks to copyright protection. The legal recognition of AI as an author and the copyright protection of AI-generated works would put “human creativity” and “machine creativity” on an equal footing. On the other hand, if copyright laws do not apply to AI-generated works, it would imply that human innovation is favored over that of machines. Long-term destruction of human creativity is likely to result from elevating machine creativity above that of humans or from placing both on an equal footing.
Lack of human filters can cause irreparable damage to societal sentiments.
Many problems could arise if AI was thought of as the author of the AI-generated piece. AI-generated content might not be error-free. The AI may employ derogatory or obscene language, encourage conflict along racial, ethnic, or religious lines, or result in any other unintended outcome. Due to AI’s lack of legal recognition as a person, it will be challenging to determine its civil and criminal liability in this situation. At most, such work could be removed, and at worst, AI software could be outlawed, but by that point, it might already be too late and the damage might already be irreparable. Hence, in the latter situation, the person who employed artificial intelligence to create the work may claim to be its author; however, this is not the case when AI independently developed the work without human involvement. This question of authorship in these situations has perplexed nations all across the world.
The duration of protection will always be in the grey area.
The AI does not pass away the way a person does. Yet, according to the rules of the various countries, one may argue that the term could be measured from the date of publication for a period of 50 or 60 years. The idea that copyright protection should be granted to AI with regard to works produced by AI is contested on the grounds that humans are mortal and get tired while working. Hence, a human author only produces a finite number of works over his or her lifetime, and the copyright is justifiable since the author’s efforts should be recognized. An AI, on the other hand, is capable of creating an infinite number of works and is immortal. It is “equivocal and disputable” to provide AI-generated works copyright protection. Furthermore, the experts who oppose copyright protection for AI-generated works contend that AI will always create the same results provided the same model and inputs are used. As a result, it is challenging to describe it as “original and inventive”.
The question of royalty
AI will find it challenging to protect the rights that the author has under copyright law and negotiate royalties with other parties. Making AI the author of the work will be a difficult endeavor because it is likely to cause more problems than it will solve.
Authorship or public domain?
Another viewpoint that comes out of the topic is that AI-generated work should not have an author and should instead belong to the “public domain.” There are various reasons to make AI-generated artwork available to the general audience. One of the reasons is that since AI-generated work incurs no costs during the production, making it freely available to the general public makes perfect sense. Second, AI is able to produce as many iterations of its own work as needed without using additional resources or money. Last but not least, one of the goals of copyright law is to give the creator of the work incentives in the form of financial and moral rights to encourage him to create new works for the benefit of society. As AI is not human, it does not need such inspiration to produce art.
However, one should also take into account the possibility that if AI-generated works are not protected and the public is allowed to use them without restriction or payment of a fee, it could spell the end for the businesses that have made significant investments in AI systems that produce these works. Intelligent individuals will begin to commercialize such works in numerous ways without spending any money, competing with businesses that have made the investment. It may therefore be necessary to provide some protection for works produced by AI in order to motivate AI programmers and businesses to continue funding R&D projects connected to AI.
Should AI be considered joint authors?
The idea that AI and human authors are co-authors of the work created in this way is not a good one. The cause is that not all AI processes are under human supervision, and AI functions autonomously. The definition of “works of collaborative authorship” does not apply to this. A “work of joint authorship,” for instance, is defined as “a work produced by the collaboration of two or more authors in which the contribution of one author is not distinguishable from the contribution of the other author or authors” in the Indian Copyright Act of 1957. Rich notes that “machine learning often produces models that are so intricate that even the algorithm’s original programmers don’t fully understand how or why the created model generates reliable predictions. The idea that an AI-generated program should have a joint authorship between the AI programmer and the AI user is likewise unsound.”
AI and the issue of deep-fakes- what would be its impact on copyright?
A new problem, copyright concerns in “deep fakes,” has been recognized by Wipo in addition to the authorship issue. The creation of artificial likenesses of people and their characteristics, such as voice and look, is essentially what is meant by “deep fakes.” Deep-fake technology increasingly relies on AI. When someone is shown in a deep fake without their consent and the behaviors and views of the person are revealed, there may be additional difficulties than just copyright, such as privacy concerns and defamation, and such work is not authentic. The profound false audio-visuals of well-known athletes, performers, leaders, and other prominent figures could become highly well-liked by the general public and have a very large market. Even after the passing of such people, these profoundly false works can survive and generate lucrative earnings for their authors.
The questions that emerges in this situation is whether a profoundly false work if created without the consent of the party in question should even be covered by copyright laws. What rights under copyright law will the person in question have in such works if permission has been granted by them? Can a system of fair compensation be created for the individual who creates profound fakes and the people who are portrayed in the work? These concerns need to be addressed to better the position of copyright in the AI world.
International and Indian Perspective on Copyright Law and AI-Produced Work
THE PERSPECTIVE OF SOME EUROPEAN COUNTRIES (GERMANY, FRANCE, SPAIN, UK)
The idea that civil law nations like Spain, Germany, and France represent is that works produced must have the “imprint of the author’s personality.” As a result, since AI lacks personality, authorship of AI-generated works should be denied to AI. Making AI a legal person would entail giving it the ability to sign contracts with other people. Additionally, it will be obligated by the law and accountable for its actions. The ability “to sue and be sued” under the law is most vital and therefore majority of nations oppose giving AI legal status.
Nonetheless, it won’t be out of place to note that the European Parliament has argued for giving “autonomous robots” the legal character of “electronic persons” in order to protect them under copyright law. The “music composition AI from Artificial Intelligence Virtual Artist (AIVA) Technologies becomes the first in the world to be formally accorded the status of a composer,” and it can now release music and get royalties under the name AIVA because SACEM, France, and Luxembourg author’s right society have formally acknowledged it as a composer. It is also interesting that Sophia, an AI humanoid robot, was given citizenship by Saudi Arabia in 2017. In the paper titled “Entering the Age of Living Intelligence Systems and Android Society,” Dr. David Hanson, the inventor of Sophia, predicts that as AI advances, there will eventually come a tipping point where robots will awaken and demand their rights to exist, to live freely, and to evolve to their full potential. Additionally, it indicates that they will be requesting intellectual property protection for any new intellectual property rights (hence referred to as “IPRs”) they develop. He predicted that by 2045, “advanced robots will have the ability to vote in general elections, own land, and get married.”
Computer-generated work is covered by the UK’s Copyright, Designs and Patents Act, or CDPA, since 1988. According to the CDPA, a “computer-generated” work is one that “is generated by a computer in circumstances such that there is no human author of the work.” To “provide an exception to the need of human authorship in order to give fair acknowledgment and protection for the work that goes into designing a program capable of autonomously generating works,” according to the justification for such a clause. According to section 9(3) of the CDPA, the author is “considered to be the person by whom the arrangements necessary for the development of the work are undertaken” in the event of “literary, dramatic, musical, or artistic work which is computer-generated.”
USA
According to Andres Guadamuz, authorship in this situation belongs to the coder and not the user. He uses Microsoft, which created the word processing tool “Word” to allow users to generate original works, to illustrate his point. A work created by a user using that program cannot be protected by Microsoft’s copyright. The user of the application, who will be acknowledged as the creator because they used that program to generate the work, will own the copyright to that work. In the case of Express Newspapers Ltd v. Liverpool Daily Post & Echo ([1985] FSR 306), the court saw the computer in the same way that it would a pen. If the author can prove that an AI program was employed as a tool or medium in the development of the work, they may be eligible for a copyright in the United States as well. The court in the United States found that the monkey could not be taken as the author of the selfies it clicked in Naruto v. Slater (2016 US Dist. Lexis 11041), also known as the “Monkey Selfie” case. In the United States, a human author is the only one who may be granted copyright; neither machines nor animals are permitted.
Nevertheless, when it comes to “artificial intelligence algorithms,” which have the capability of producing work on their own, the scenario will be different. There is an “apparent gap between the human’s input and the computer’s output” when an AI-powered computer behaves as an “autonomous actor” and produces works “algorithmically, sequentially or non-deterministically”. In this case, the user’s involvement in generating the work might not go beyond clicking a button that instructs the machine to produce the desired result. In this instance, it is appropriate to consider “the person creating the arrangements for the work to be generated” to be a programmer. Another way to put it is that “it can be assumed that the programming of the AI is built in such a manner that it can develop and identify equations to generate a result on its own, and thus, the creativity may vest with the programmer who has created the AI, given proper programming.”
BERNE CONVENTION, 1886
The Berne Convention, 1886 did not address “non-human authorship” on a global scale. The Trade-Related Aspects of Intellectual Property Rights Agreement (hereafter referred to as “TRIPs Agreement”), which contains the Berne Convention’s provisions, may be deemed to hold the same position as the Berne Convention. Regarding the WIPO Performances and Phonograms Treaty of 1996 and the WIPO Copyright Treaty, a similar stance may be judged to be accurate (WIPO Internet Treaties). On the other hand, it might also be argued that the notion of non-human authorship in national legislation was not disallowed by the international legal regime on copyright. In most cases, international treaties specify the minimal common norms that must be observed. The nations are required to abide by them, while at the same time; they are free to provide better protection than what has been laid down in the treaties.
INDIA
In contrast to CDPA, the Indian Copyright Act does not define “computer-generated work.” Yet, it defines “author” as “the person who causes the work to be made” in connection to “any literary, dramatic, musical, or aesthetic work which is computer-generated.” The Delhi High Court provided additional clarification on the definition of “author” in Camlin Pvt. Ltd. v. National Pencil Industries (AIR 1986 Delhi 444). Because it was impossible to identify the author of the carton, the courts ruled that the “mechanically replicated printed carton” was not a subject matter of copyright. The Court added, “Copyright is only granted to authors or those who are natural persons who are the source of the work. Given the facts, the plaintiff is unable to assert any copyright in any cartons that have been mechanically copied through a printing process because it is impossible to claim authorship of the work. An artistic creation cannot have a copyright attached to it, nor can a machine be its author. The Delhi Court declared that the plaintiff in Tech Plus Media Private Ltd v. Jyoti Janda “is a juristic person and is incapable of being the author of any work in which copyright may subsist.” Nonetheless, the plaintiff might, according to the Court, enter into a contract with the work’s creator that would make them the work’s copyright owner.
Conclusion
AI will play an increasingly significant part in all facets of our daily life. Its usage must be regulated by legislation. AI will continue to play a critical role in intellectual property rights, especially in copyright. The international community has been compelled to consider these questions of authorship and ownership of AI-generated works in copyright law and come up with an agreeable answer for all nations. To solve this problem, no rule is perfect, and each one has drawbacks of its own. Giving non-human authors credit for AI-generated works will have a big impact. Making AI-generated works available to the general public is also not a smart idea because it will deter AI programmers and businesses that control such AI from making additional investments in the field. The WIPO is making a lot of effort to address these problems. The sui generis system might be a preferable choice, or alternatively, certain clauses in the copyright laws of the nations that have been specially written for AI and AI-generated works may handle this issue. In any event, less protection should be given to AI-generated works, and human ingenuity should be valued over artificial creativity. Thus, the time has come for a balanced approach.
Frequently Asked Questions
The work created by an AI is not protected by copyright as the copyright cannot be granted to a machine as of today.
As per The Copyright Act, of 1957, a human can only own a copyright. So the answer is no, an AI cannot own the copyright as of now.
No, an artificial intelligence machine cannot hold any copyright rights.
Whether AI art breaks copyright or not depends on the specific circumstances of its creation and use. If the AI system creates an original work of art, it would likely be subject to copyright protection. However, if copyrighted materials are used in the creation of the AI art, or if the AI art is very similar to an existing copyrighted work, there could be potential copyright infringement issues.
As per the current scenario, AI cannot be copyrighted in India. The Copyright Act, of 1957 clearly states that only a human can hold copyright rights and not a machine.
Since it is generally the author of the work who possesses the copyright, therefore, the creativity in the work can be drawn from human input in cases where AI creates something with human interference because there is a human input in such cases. In some situations, a human being can be credited as the author.
When AI creates a piece of art entirely on its own, without any human involvement, it is unclear who is the true author of the law. In such cases, the following strategy may be employed:
When AI creates a piece of work without any human involvement, that AI’s creator – the person who created the AI program – may claim authorship of the work.
When AI generates work without human aid, it can be assumed that the AI was programmed in such a way that it can come up with and recognize equations to produce results on its own. In this case, the creator of the AI may retain creative control if the AI was sufficiently programmed.
Naseem Sheikh is a trademark enthusiastic and he is a member of Bar Council of Delhi, Bar Council of India.
