Decoding IPR

Introduction

Generative AI is transforming technology by creating new data that mirrors what it has learned. It is a blend of generative models and deep learning, using huge networks to understand and recreate complex data. Models like ChatGPT, DALL-E 2, and Stable Diffusion have gained popularity, drawing millions of users since their launch in 2022. Experts predict Generative AI could bring in trillions of dollars to the economy, sparking a race among big companies and start-ups to create the next big thing.

What sets Generative AI apart is its ability to make new data similar to what it’s been taught, unlike other AI that focuses on sorting and labeling. Generative AI is like an artist creating new pieces based on what it knows, while other AI systems just recognize things without creating anything new. This technology has been a game-changer, especially in generating text and images. It’s like teaching a computer about flowers and then having it create new ones that look just like the ones it learned about. Other AI can recognize flowers based on features but can’t make new ones.

Previously, AI models struggled with complex data like language and images, but with Generative AI’s integration with deep learning, it’s become much better at understanding and recreating these intricate patterns from vast amounts of text, images, sound, and video.

But with this advancement comes the need to carefully consider its impact—how it affects the economy, society, and ethics. Understanding the potential risks and ethical dilemmas is crucial before using this technology widely, raising the key question of ownership especially in context with the Copyrights Act

Question of Authorship and Originality Authorship

In accordance with Indian copyright law, the rightful ownership of a work rests with the human author who created it. Consequently, attributing copyright ownership to artificial intelligence (AI) necessitates a nuanced determination of whether AI qualifies as an ‘author.’ This complexity is particularly pronounced in the realm of Generative AI, where assigning authorship faces challenges due to the inherent nature of AI – designed to enhance human capabilities through machine learning. Machine learning involves a syntactic analysis of patterns and past data, continually refined by the machine itself.

In contrast, the U.S. Copyright Office has consistently asserted that an author, as per well-established precedents such as Community for Creative Non-Violence v. Reid, must be a human. This legal perspective underscores the significance of human involvement in the creative process, emphasising elements of human creativity and inspiration. Although Section 101 of the Copyright Act of 1976 does not explicitly define an ‘author,’ the courts have consistently adhered to a similar interpretative framework, upholding the notion that authorship requires a human element involved in the creation or compilation of the work.

The UK accepts computer-generated works as copyrightable work vide section 178 of the CDPA. In spite of this there remains a dilemma with regard to authorship and subsequently ownership. Section 9(3) of the CDPA stated that the author of the computer-generated work would be a “person by whom the arrangements necessary for the creation of the work are undertaken”. Indian Copyright laws also define the author similarly, with ownership belonging to the person who caused the creation of the work. This trend complicates the process of attributing authorship, as it becomes challenging to distinguish the contributions of human creators from those generated by AI. Autonomously producing technologies like Google’s DeepMind AI or the Endel do not fulfil the sweat and brow theory, as the developers of the software do not possess the same skillset as the AI.

Another method for assigning ownership to AI would be through assigning joint ownership to the human programmer and the AI technology. Section 10 of the CDPA Act in the UK supports this and courts have been considering this with the increasing prevalence of diverse AI technologies with varying cognitive capabilities, coupled with their notable success in consistently passing the ‘Turing test,’ which further complicates the determination of authorship criteria. 

Originality

Section 13 of the Copyright Act, 1957 underscores the significance of originality as a fundamental criterion for copyright protection. In the Eastern Book Company v. D.B. Modak case, the Supreme Court highlighted the crucial role of a ‘modicum of creativity’ in relation to originality, as outlined in Section 13 of the Copyright Act, 1957. The court emphasised that duplicating literary works does not qualify for copyright protection, and such works cannot be considered ‘original’ if they are mere copies. Similarly, in the United States and the United Kingdom, cases such as Feist v. Rural Telephone Service and University of London Press v. University Tutorial Press have established the originality test.

It is crucial to explore whether content produced by Artificial Intelligence can be regarded as ‘original’ within the framework of copyright laws. On this matter, both jurisdictions differ in their approach; In the US only works created by a human can be copyrighted, whereas in the UK section 9(3) of the CDPA Act states that “the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”. In India the view is not yet well established. 

Present Position of Ai Generated Content in Common Law Countries

The recent case of Thaler v. Perlmutter, in the District of Court of Washington D.C, the court held that AI generated content cannot receive copyright protection as there is a clear lack of any ‘human input’. The case was filed against the decision of the US Copyright Office to reject the copyright application filed by the company Thaler for a visual art that was generated by the company’s AI DABUS.

The court agreed with the Copyright office’s decision citing that copyright cannot be granted for works over which there is lack of human authorship, rejecting the contention of the plaintiff that human authorship is not essential requirement for a copyright. The judge, observing that the issue at hand is fairly straightforward, held that human authorship is absolutely essential for receiving copyright and works generated by AI without any human input would not be eligible to receive copyright protection. The US Supreme court later declined to entertain an appeal filled by the plaintiff.

This judgement has been consistent with the approach taken by the common law courts regarding other intellectual property disputes particularly patents. The Supreme Court of the United Kingdom in the recent case of Thaler vs. Comptroller-General of Patents, Designs and Trademarks, filed by the same Plaintiff. Here the court similarly held that the inventor of the patents should be a natural person and the creation of machines autonomously and without any human contributions cannot be accepted as ‘inventions’ under British Patent law. 

It can be thus seen that both the US and the UK have found human contribution or authorship to be an essential element to receive intellectual property rights over a creation. The AI tools are capable of creating original works or inventions and this was the case in the above two cases, where the AI autonomously created an original work. The court has here again given importance to the element of human creativity in the case above. 

The Approach Towards AI Generated Content in India

The Indian courts have only dealt with the question of Artificial Intelligence in a limited number of cases. In the case of Anil Kapoor v Simply life India for example the court held that producing AI generated content of actors without their permissions violates their right to privacy and other personal rights. Here the court observed the capabilities of AI powered tools to create various content which could violate laws of the country. 

The courts have not however discussed the issue of intellectual property rights over AI generated content. However, the courts have in certain cases denied copyright for works not done by natural persons   content such as in Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd, where the court denied copyright to CBSE over its question paper, holding that copyright can only be granted to works done by natural persons and not by juristic persons. Further in the case of Navigators Logistics Ltd. v. Kashif Qureshi & Ors, the court declined to grant copyright for a computer generated list stating that works done by natural persons as authors is only eligible to receive copyright.

Recently, with more advancements in the field of AI, Indian administration have taken a more accommodative stands towards AI. The Indian Copyright office has granted copyright to a work that was generated by AI named ‘Raghav’. Here the copyright office rejected the AI as a sole author but when a natural person was also added as a co-author of the work, the copyright was granted. Further the government authorities have recognised the importance that AI is going to play in the future and have suggested bringing in more laws and amendments to promote and protect the advancements by AI. 

Conclusion

Indian legal principles need to evaluate the extent of challenges posed by AI systems to intellectual property (IP) laws. It is reasonable to assert that existing Indian laws could accommodate the attribution of ownership by expanding and enhancing their interpretation to be more adaptable. In the Indian context, the determination of authorship and originality of a work is guided by the ‘sweat of the brow theory,’ a principle shared with the UK jurisdiction. Indiamust begin acknowledging the contributions of AI  through co authorship and expand on the doctrine of originality.

The present approach for the judiciary in the UK and the US been that of denying any intellectual property protection to works or creations not done by natural persons. The Indian courts have taken this approach for various other cases such as works by corporations or generated by computers though not exactly concerning AI. The Indian authorities have however taken a more relaxed position concerning AI and the government has hinted at further reforms to facilitate the development of AI in the country.