Creative input required from an author while creating an AI generated content to claim copyright

Introduction 

Artificial Intelligence has rapidly emerged as one of the most significant technological developments in the last 10 years, transforming the way individuals create, access and interact with tech. from generating written content and digital artwork to composing music with generative AI. Ten years ago, such tasks were still very much the province of humans, but these days AI can do them as well. The use of the AI has boosted the efficiency and innovation of various sectors and it will change the way we think about copyright. 

AI has become a boon for artists, writers and designers business, as well as for researchers. By allowing the creation of content with basic prompts and commands. Earlier tasks which used to take several days now can be done in a quarter of an hour. On the other hand it raises questions on the ownership, protection and commercial exploitation of such content. These concerns have become particularly relevant as AI generated content is being exclusively used in publishing, advertising, education, software development and other commercial sectors.    

Traditionally the basic principle of copyright law has been that creative work is the product of human intellectual efforts. It aims to provide the protection of original expression of ideas: as a result of this authors have rights over their works, which facilitates creativity and the progress of knowledge and culture. But AI has posed a threat to these traditional ideas by blurring the line between the two: human creativity and machine-generated output.

The main statute in India for protection of literary, artistic, musical, dramatic and original works is the Copyright Act, 1957. In the event that at the time of enactment AI technology does not exist, the act provides for the computer generated work. So it doesn't solve the legal problem concerning modern generative AI. This gap has sparked discussion about issues of originality, authorship, ownership and the level of human creative input necessary for copyright protection.

The need of the hour was to review the current Indian copyright regime's ability to handle the challenges posed by generative AI. An examination is highly essential to make sure that the law remains dedicated to technological innovation while continuing to uphold the core principles of copyright – the protection of authentic human creativity and intellectual effort.

Eastern Book Company and Ors. Vs. D.B. Modak and Ors. (12.12.2007 - SC): MANU/SC/4476/2007

Easter Book Company v. D.B Modak is the landmark case of the apex court in India which provides the standard of originality for copyright protection as per the copyright act, 1957. The controversy over this was caused because of the eastern book company (ECB) which published Supreme Court cases (SCC) law reports and claimed that respondents had reproduced its edited case without permission. The main question for resolution was whether such editorial contributions could be deemed to be original and thus worthy of copyright protection.

The traditional doctrine, known as "sweat of the brow," that laborers of the mind should be entitled to copyright protection was rejected by the apex court. The Supreme Court, however, embraced the Doctrine of the Modicum of creativity. The court state originality requires skill, judgment and a minimal degree of creativity. In this the court set the standard for creativity in order to get the benefit of copyright.

RAGHAV AI Artwork Matter and Copyright Protection of AI Generated Content

The recent Suryast case is a key precedent in the debate on the copyright of AI-generated creations. This piece of art was made by Ankit Sahni using an Artificial Intelligence Painting Application, RAGHAV. Suryast registered with the Indian Copyright Office in November 2020 that Sahni and RAGHAV are co-authors of the work. The registration was highly anticipated and seemed to acknowledge that an AI system could be a part of the production of a work that could be protected by copyright. The Copyright Office then issued a notice asking for clarification.

The copyright status of RAGHAV and application of Sections 2(d) (iii) and 2(d) (VI) of the Copyright Act, 1957. The matter was raised because of the uncertainty regarding the definition of the “author” of a computer-generated work in Section 2(d) (VI) of the Copyright Act, which reads: “The author of a computer-generated work is the person who causes the work to be created.” The provision offers a statutory definition of computer generated works, but does not explicitly state how much human creativity is required in order to be the author where artificial intelligence makes a significant contribution to the expression of the work. The Suryast case thus points to a crucial gap in the Indian copyright regime with respect to the question of authorship and originality of AI-created works and the right of ownership, and the need for an increased degree of clarity on new modes of human-AI creativity.

Suryast was then reviewed by the U.S. Copyright Office, where Sahni registered it saying that he and RAGHAV were the authors of the work. The approach used to create the artwork is to use Sahni's original photograph as the base image, Vincent van Gogh's The Starry Night as the style image, and a numerical value to indicate the level of style transfer. Following the refusal of registration and two requests for reconsideration, the U.S. Copyright Office Review Board, on 11 December 2023, affirmed the denial of copyright protection. Sahni argued that he had sufficient creativity in choosing the base image, the style image and the level of style transfer and that RAGHAV was just a technological tool to help him.

The Board, however, found it established that it was RAGHAV himself and not Sahni who decided upon the expressive elements of the final work such as the way the images were assembled, positioning of visual elements, and the use of colours. The Board found that Sahni did not have creative control over the expression that he created because he did not make any subsequent changes to the output of the AI, and thus did not have enough human authorship. The ruling is important because it defines what it means to have originality in an AI-generated creations, which is a key determinant of whether they qualify for copyright protection.

To what extent Indian Copyright Law can consider Artificial Intelligence as an author?

Indian Copyright law is yet to decide whether AI could be considered the author. If the work is created by a computer, the “person who causes the work to be created” is the author, under Section 2(d) (IV) of the act. While the act does not provide any detail on how this provision would be implemented in today's generative AI systems. Section 17 makes the situation complicated as the author is normally put forward as the first owner of the copyright. Since an AI system does possess legal personality. Once it is recognized as an author, it will bring about a few more technical constraints. Further in section 18 of the copyright act that gives the owner of the copyright the right to assign the copyright either in full or in part. An AI system which has no legal personality and no contractual capacity, cannot assign or commercially use copyright in any manner foreseen by the act.

Conclusion 

With the ever increasing applications of Artificial Intelligence in the different fields, a number of questions concerning authorship, ownership and copyright protection have arisen in the epipelagic zone. Under section 2(d) (IV) of the copyright act, the copyright owner of a computer generated work is the person who caused the creation of the work, but this does not seem to apply to the modern generative AI.

The uncertainty is more apparent when the provisions of the same act in section 17&18 comes into play. The AI system is not a legal entity and it has no contractual ability. It cannot own or exercise copyright without the assistance of the existing legal framework. Thus, the present law does not give a clear and satisfactory answer to the ownership of AI-generated content. If such laws are not in place, this threshold of the human element in the creative process becomes crucial. The Eastern Book Company v. D. originality standard Modak has offered some helpful advice in deciding whether the user has been ‘skilful, creative and judicious’ in creating the final product.

Author: Aashirwad Tripathi, 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.

References

1. MANU/SC/4476/2007

2. Eastern Book Company v DB Modak, 2008 (36) PTC 1 (SC)

3. https://www.ijprems.com/ijprems-paper/copyright-protection-for-ai-generated-works-in-india

4. Microsoft Word - 2023-12-11_SURYAST Review Board Decision Letter_final

5. Balancing Indian Copyright Law with AI-Generated Content: The ‘Significant Human Input’ Approach - NLS Forum