Generative AI and Copyright Authorship: Interpreting Section 2(d)(vi) of the Indian Copyright Act

Introduction

AI-generated works are those produced with the aid of AI systems, such as software that generates output based on data and algorithms. It can range from simple texts and images to complex literary, artistic, musical, and cinematographic works. The ownership of author’s work created by generative AI has raised complex legal issues in copyright law. The challenges faced by ‘traditional ownership concept’ is that the existing Copyright Act is not well equipped to facilitate the authorship and ownership of AI-generated content.

It is because in India, the section 2(d)(vi) provides authorship rights only to ‘person’ who causes to create any literary, dramatic, musical, or artistic work which is computer generated. Therefore, challenges related to AI-generated work concern quality, trustworthiness, and ethics, as they depend on factors such as the nature of the datasets and the algorithms used by the artificial intelligence system.

The rapid advances in AI technology underscore the importance of intellectual property (IP) in the digital age. The creations by AI as evidenced in works such as ‘The Day a Computer Writes a Novel’ and ‘The Sunlight that Lost the Glass Window’, have shown the inefficiency of the traditional concepts of Copyright Law. Authorship has been linked to human creation for generations. The technological tools that are now available for free make it possible for illegal and unauthorised use of AI to create computer programmes. The question arises as to who would benefit from such a creation: the author or the AI that generated it?

AI as an Author

The Copyright Law incentivises the creation of original work that can be used and enjoyed by the public, and this protection is extended as a ‘special reward to the author’, who is a being rather than an AI software. The Supreme Court held in Eastern Book Company v. D.B. Modak which highlighted legal standards, such as the ‘modicum of creativity’ test that highlights the importance of human participation for copyright eligibility.

There is a question of fairness, accuracy, and inclusivity are major problems that occur when producing such a kind of work since an AI system would fail to mirror an artists’ or creator’s interest, values, morals, ownership, user beneficiaries from the work generated. Section 13 of the Act states that the creations that can be copyrighted shall include original works of the creator, including ‘computer generated program’. The Act does not mention any provision that provides ‘AI’ any kind of recognition as an ‘author’. Since only persons can be authors as per sec. 17 of the Copyright Act. That means ‘generative AI’, even if it generates a creation itself, never gets any recognition under the Act unless a human claims authorship of the creation.

Rights of Author

The first and foremost is the ‘Paternity Right’ in the work that the author shall have in his name. It may also be called the ‘identification right’ or ‘attribution right’. The second right the author holds is the right to disseminate his work, known as the ‘divulgation or dissemination right’. It would also include the economic right to sell his work, which is linked to the paternity right.

Independent of any rights over his work, the author can claim damages for any distortion, mutilation, or modification if such distortion prejudices his reputation or honour, as per sec. 57 of the Act. This also contributes to the failure to display the author's work. It is crucial to specify the level of generative AI the author used in producing his creative work. In the case of ‘computer programme’ the creator must have shown creativity, skill, and judgement to produce an artistic work. In accordance to sec. 14(1)(c)(ii), the copyright law extends to protect his creative labour and ensure that the author shall communicate his work to the public.

Whether the right to assert authorship would also include a right to object to distortion, mutilation or modification in a work? It may go against the reputation of the author because, if tinkered, the contours, the hue and the colours of the original work may distort the ethos. The Berne Convention under art. 6 direct that the author may ‘object to any distortion, mutilation or modification’ which is deemed to harm his reputation or prejudice his honour.

AI as Creative Tool

Numerous Copyright Law provisions identify authors as human beings and define ‘machines’ as tools used by humans in their creative process rather than creators themselves. The two essential requirements established by ‘significant input test’ determine whether an author who utilized AI assistance, can claim copyright or not: - 1) The first, is whether there had been human involvement at all in the creation process of the work. 2) The second, is the extent of human involvement during the creating process. Works generated solely by AI do not have intention, since machines lack minds and therefore cannot have intention. The transfer of copyright ownership requires signature as per sec. 19 in read with sec. 18 of the Act, there must be ‘an instrument of conveyance’ that is ‘signed by the owner’. AI lacks a signature and the legal authority to provide an authenticating signature. Therefore, in textual grasp of sec. 2(d) of the Act, human authorship aligns with all attributes of the author that is required for copyrightable work.

Human Authorship Principle

The work must be ‘original’ to be protected under Indian Copyright Law. Even though the Copyright Act does not define ‘original work’, the work shall have an intrinsic link between expression and idea, with the application of effort and the author’s keen involvement of judgement and skill. However, when AI is regarded as the owner and author of the work, it becomes difficult to determine liability for copyright infringement under the Act. In United States, the case of Bridgeport Music, Inc. v. Dimension Filmsraised fears about the extent to which AI can be used for unauthorised sampling of music, which could result in infringement of existing protected material. It is difficult to establish accountability for violations upon AI, given lack of its legal status.

AI, as a ‘creativity machine,’ cannot receive copyright protection because ‘a human being did not create the work.’ The US Supreme Court decided in Burrow-Giles Lithographic Co. v. Sarony that the Copyright Office can well deny registration of such a work because it simply lacks human authorship. This can well be interpreted as human involvement shall be the bedrock of a copyright requirement. The court in, Thaler v. Perlmutterasserted that the creative machine in itself ‘was never eligible for copyright’, because statutory law requires all works to be authored in the first instance by a human being. The judgement also claimed, for the first time, that work generated by a ‘creative machine’ shall be copyrightable if a human has ‘provided instructions and directed his A.I.’

Conclusion

AI, as the core author of projects, is incompatible with copyright protection. No provision in Indian Copyright Law requires a human author in cases where generative AI creates computer software or programmes. There has been no development in copyright law that takes into account the necessity of human authorship in AI-generated works; this can create havoc in the Indian Judicial system regarding copyright encroachment. Therefore, section 2(d)(vi) requires better interpretation to include ‘human author’ since current provision can be interpreted where ‘AI’ can be termed as ‘author’ of computer-generated work.

A copyrightable work would acknowledge that, although AI can be creative, it cannot create an original work without a human involved in the key decision-making process. It is the instructions of a human who has created such a computer programme, for which he shall file a copyright. There shall be condition to only include works of human authors where AI is used as tool in ‘register of copyrights’ under sec. 45 of the Act. The Act should prescribe the usage of AI to a certain extent, in which the maximum effort and diligence is applied by the ‘human’ author.

Author: Kushal Singh, 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.

Endnotes

1. Copyright Act, 1957, §§ 2(d)(vi), 13, 14, 17, 18, 19, 45, 57 (India).

2. Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.

3. Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, Sept. 9, 1886, as revised at Paris on July 24, 1971.

4. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

5. Thaler v. Perlmutter, 687 F. Supp. 3d 140 (D.D.C. 2023).

6. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

7. Jane C. Ginsburg & Luke Ali Budiardjo, Authors and Machines, 34 Berkeley Tech. L.J. 343 (2019).

8. World Intellectual Property Organization (WIPO), Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence, WIPO/IP/AI/2/GE/20/1 Rev. (2020).