After the launch of Chat GPT, an Artificial Intelligence (“AI”) chatbot developed by OpenAI, that generates responses based on the algorithms and data inputs, the discussion over copyright protection of AI generated work has stirred up again.
The most prominent bottleneck in copyright protection of such work around the world is that copyright law requires such works to be of human authorship by sufficient human input to sustain a claim of copyright over the work. While India is no alien to this criterion, the Parliamentary Standing Committee (“Committee”) had, in its Report No. 161 titled “Review of the Intellectual Property Rights Regime in India” recommended review of the Copyright Act, 1957 (“Copyright Act”) to expand to scope of authorship in AI-generated works.
Through this blogpost, we try to decipher the legal position of copyright protection in the United States and in India, and examine whether the existing Copyright Act is well equipped to facilitate authorship.
For any work to be accorded copyright protection, it must meet few essential criteria. Firstly, the work must be a work of human authorship, the work must be an independent creation and must be original. The Copyright Office could refuse to register the works that have been generated with the use of an AI tool on the ground that it lacks sufficient creative input and human authorship necessary to support a copyright claim. Hence, the issue of copyright protection of AI-generated content has two facets. Firstly, whether an AI can be named as the author; and secondly, whether such AI-generated content has sufficient creative inputs to meet the criteria of being a fruit of human labour.
It was along the lines of the first criteria that the Copyright Review Board of the United States Copyright Office refused to register copyright in the work ‘A Recent Entrance to Paradise’, in the name of DABUS, an A.I. system developed by Stephen Thaler. The said copyright application was filed in the year 2018 by DABUS as an author claiming that the work was independently created by the AI. The copyright office refused the application on the grounds that “it lacks the human authorship necessary to support a copyright claim.”
On the second criteria, protection would largely depend on human contribution in the AI-generated work. It was along these lines that the United States Copyright Office had revoked copyright protection granted to a book titled Zarya of the Dawn which incorporated AI generated artwork. Since the artworks were not product of human authorship and were not disclaimed in the book, the US Copyright Office proceeded to cancel the registration with the intention of issuing fresh certificate covering only the expressive materials.
Development in India
On the first criteria, Indian courts remain silent on the legal position with respect to the ownership of AI generated content and this complex legal issue is yet to be tested in courts. However, there is one instance that caught major attention and gave a ray of hope to the those who wish to be AI registrants. Ankit Sahani, who owned Raghav, an AI based Painting App, filed two copyrights application for the AI generated artwork, Suryast. The first copyright application for registration was filed in the name of Raghav, which was outrightly rejected by the copyright registry. The other application for registration was filed in the name of Mr. Sahani, with Raghav as the co-author. While the second Suryastapplication was registered, the Copyright Office, subsequently, raised objections and sought to cancel the registration. Since the work is part of a parallel proceeding in the United States, the objections raised by the Copyright Office as well as the reply to the objections remains confidential. It is likely that such objections were raised owing to Indian copyright law only identifying human beings as being capable of being authors of works.
Challenges to the grant of copyright ownership to AI.
Granting authorship right to an AI in an AI-generated work is not as straight forward as it seems, and it might have largescale implication. For instance, if AI is granted authorship rights in an AI-generated work and there is copyright infringement of such work or such work infringes on the already existing copyrighted work, in such a scenario, neither the AI can enforce its copyrighted work against potential infringement nor can the AI be sued for potentially infringing an already existing copyrighted work. This is because AI is neither a juristic nor a natural person and cannot be sued. Hence, before the issue to affording authorship right to AI is addressed, the legislation must decide on the legal status of AI.
Moreover, under Indian law, in the case of original literary, dramatic, musical, and artistic works the 60-year protection period is counted from the year following the death of the author. If the AI is granted authorship over such work, the whole rationale behind the time period of protection under the copyright law loses its applicability since AI has a perpetual existence.
Hence, the grant of copyright registration in the name of an AI doesn’t seem a practical and plausible step so far. A solid and comprehensive reform needs to be made in copyright law before AI can be granted copyright ownership. Such amendments in the copyright law must cover all the aspects leaving no loophole and as such appreciating the spirit of copyright law in general.
https://www.theguardian.com/technology/2022/dec/05/what-is-ai-chatbot-phenomenon-chatgpt-and-could-it-replace-humans  Review of the Intellectual Property Rights Regime in India, Report No. 161  SR # 1-7100387071, available at https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf e  Zarya of the Dawn (Registration # VAu001480196)