Authorship and Ownership of AI-Generated Works

Introduction

AI-generated works encompass paintings, poetry, images, sculptures, and writings or any digital content created with the assistance of AI, guided by appropriate prompts from a human. Generative AI models have gradually taken over the creative field. Tools like DALL-E, Gemini, and ChatGPT have bridged human creativity and Machine computation. These tools have gone from performing simple tasks to making original content further blurring the line between humans and machines. Authorship and ownership are key determiners of rights and responsibilities arising out of copyright. They determine who has the moral right and the right to modify, transfer, distribute, licence etc. Generative AI models often consume information to generate content; sometimes the information that it processes could be copyrighted work which could lead to copyright infringement. Who will take the responsibility in this case? The developer of Generative AI? The owner? or the user? A major issue arises here. Mostly all these tools provide in their terms of use that the user owns the content that they generate through these tools. However, if the content generated is not copyrightable in the first place then the terms of use do not do much to change that situation. Copyright is granted only to humans and various traditional Intellectual Property frameworks rely on creativity, originality as well as innovation. In this blog we will understand this concept further by analysing a couple of cases.

Naruto v Slater

It is often regarded as one of the comical cases of Intellectual property law where Naruto an Indonesian crested black Macaque took a selfie with a camera left alone by David Slater, a nature photographer.1 These pictures became popularly known as the “Monkey Selfies” and later Slater sold the selfies and made the selfie the cover for his book Wildlife Personalities. PETA(People for the Ethical Treatment of Animals) later claimed that the monkey was the owner of the photos and hence should be given the copyright. PETA utilised the doctrine of next friend status to argue on behalf of the monkey. Here the owner of the camera was David Slater and the author or creator of the photo was the monkey. The US Court of Appeals for the Ninth Circuit established

1 2018 SCC OnLine US CA 9C 94

that an animal, not being a human entity could not hold a copyright or any intellectual property rights. It was also held that the doctrine of next friend status by PETA was insufficient.

AI Generated Work
[Image Sources: Shutterstock]

In both scenarios, the “author” is a non-human entity that challenges the traditional requirement for copyright holders to be human, demonstrating creativity and imagination. Unlike Naruto who accidentally took the photograph, Generative AI processes information, analyses data using a variety of algorithms according to various prompts, and provides an output which is resourceful to the user. Generative AI is programmed to create. Even though it does not possess an intent, it functions in response to human intervention and has a link to human purpose as the user’s design prompts to receive desired outputs. Generative AI tools have a direct purpose and structured human intervention which sets it apart from accidental acts by an animal. AI uses vast databases, machine learning, and various algorithms programmed to imitate human creativity and even alter its output according to the feedback received to meet the requirements of the user.

Thaler v Comptroller General of Patents, Designs, and Trademarks

This case explores the question of whether an inventor status could be given to an AI tool under UK patent law. Dr. Stephen Thaler developed DABUS(Device for the Autonomous Bootstrapping of Unified Sentience)2 which he claimed was autonomous and independently invented a flashing light beacon to attract attention during an emergency and a new kind of food or beverage container. Thaler claimed that he was the rightful owner of DABUS. He sought a patent which granted the AI tool named DABUS an inventor status. The United Kingdom Intellectual Property Office denied his application stating that inventorship can only be given to a natural person. In the UK Patents Act 1977 ‘inventor’ in relation to an invention means the actual deviser of the invention which the law interprets to be a human.

Later South African companies and Intellectual Property Commissions became the first country to grant a patent to DABUS and give it inventor status but the ruling was eventually revoked. A similar barrier exists in both copyright law as well as patent law for the limitation of non-human contributors. This case highlights the need for human intent and inputs for AI tools to function. Thaler’s case reveals the rigidity in the patent law for requiring a natural person to be an inventor.

The copyright system rewards and protects creative human intellect. It provides the creator with financial gain when others find the creator’s work resourceful and use the work. It also protects the creator by penalising those who try to circumvent the system. If AI-generated work is not given copyright only because of the lack of a human element then they could be exploited by anyone. For example, it is like writing on sand, the user can call it his but without legislation to

protect it, it could be replicated by anyone. This is one of the reasons why there is a chilling effect among those who are willing to invest in a generative AI tool. Commonwealth countries like New Zealand and the United Kingdom, have actively upgraded their copyright legislations to include technology and AI in creative works.3 The EU has acknowledged the requirement to discuss the role of AI in generating intellectual property but has stayed silent in the aspect of ownership and authorship to AI. Hybrid ownership of copyright could also be a possibility where both the developer as well as the user gets to enjoy the benefits of copyright. As the world catches up with innovation, the resulting legal ambiguity impacts all sides of the AI equation – developers, content creators and copyright owners.4 Technology and AI are advancing at a rapid pace with each passing day. The lawmakers should take a step and close the lacuna that has been expanding. They should create an adaptable and technologically aware framework to protect both human and AI driven creativity.

Author: Manjumol R S, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

3 Corrs Chambers Westgarth, “Artificial intelligence and copyright: ownership issues in the digital age”, Lexology’s Website, https://www.lexology.com/library/detail.aspx?g=849627a6-c428-4e45-

a386-c6e49d98b446,

4 Will copyright law enable or inhibit generative AI https://www.weforum.org/agenda/2024/01/cracking-the-code-generative-ai-and-intellectual-property/

Leave a Reply

Categories

Archives

  • December 2024
  • November 2024
  • October 2024
  • September 2024
  • August 2024
  • July 2024
  • June 2024
  • May 2024
  • April 2024
  • March 2024
  • February 2024
  • January 2024
  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010