Protecting AI-Generated Works Under the Indian Copyright Law: The emerging void!

Introduction

What comes to our mind when we first think of artificial intelligence? -Robots? machines that talk back to us? Certainly, it must differ from one person to another. But once we start thinking artificial intelligence in the sphere of creativity- the legal brain quacking changes lane to the idea of copyright, i.e., who owns what. The drastic growth of artificial intelligence has restructured the creative industries. With generative ai creating poems, paintings, etc., the questions stand fundamental about the ownership.  The lack of proper rules and regulations blur the line between human and machine creativity. The legal community grappling with situations which do not have precedented solutions and caters to traditional copyright frameworks

Traditionally copyright rested solely on the pillar of human authorship. The ai generated works shakes the two cornerstones of copyright protection, i.e., authorship and originality. According to the Indian Copyright Act, 1957, computer generated work is deemed to be authored by the person who causes the work to be created. The basic thing that is to be understood the ai generated work is a byproduct of machine feeding. The machine feeding is a phenomenon which processes the uploaded information and then generates content based on the already fed information and in accordance to the users’ requirement. the consequence that comes forth with this system is lack of credit which remains due to the authors whose works are fed to the machine.

Pixels to unprecedented challenges!

Who Owns The Mind Of Machine?

The contemporary issue of protecting ai generated works is not limited to territorial issue rather stands a global issue. Let’s take the next Rembrandt as the example, where the project is an ambitious and stereotype breaking step that clubbed art and technology in a prodigious manner. The main focus of the project relied on the sole purpose of creating a completely new art piece which has the recognizable style of the 17^th century, Rembrandt Van Rijn. A new painting that the original artist never painted himself. It is claimed that this project was not a reproduction or forgery per se, rather an original artwork generated using artificial intelligence, after machine feeding data from many of Rembrandt’s existing and original works. This raises serious questions of what are the thresholds for establishing original works. Under copyright style cannot be copyrighted however expression that has been created using the style can be copyrighted, although if the ai generated works becomes incomprehensible from those of original artists’ works, threatening the commercial and moral interest of the original creators

In most jurisdictions computer generated work without human authorship are not eligible for copyright protection. However, under the Indian copyright act of 1957 there are provisions which pays attention to derivative work. Under section 2(o) of the said act, works like computer programs, tables, compilations and databases comes under the purview of ‘literary work’. Following section 14 emphasizes on the exclusive rights that the copyright owner holds in order to make derivative works. The ingredients for one work to fall under the category of derivative work there must be modification of substantial part of the original work, must be based on a prior protected expression and not be based on ideas solely, and requires legitimate authorization from the copyright owner of the original work unless it comes under the aspect of fair use.

[Image Sources: Shutterstock]

Based on the requirements for derivative work, works like Rembrandt project do not qualify but works that are generated via artificial intelligence however substantial part of it is not copied and only minimal part is and that minimal part is generated via artificial intelligence could be eligible for copyright protection. For this there has to be brought some regulations whereby artificial intelligence receives the designation of personhood to some extent. The best alternative at the present could be giving recognition to the artificial intelligence by allotting some personality along with the factor that the human contribution to the processing of generating work will also be given due credit and copyright ownership.

But the lingering question is whether issuing a prompt to the AI model, like that of ChatGPT or Midjourney amount to “causing” a work? Given that is the case what happens when AI acts beyond the capacity of human control?

When it comes to prompts and copyright protection, it has turned into a burning issue in the IPR world. Prompts could be merely seen as a form of idea and not expression. Lets understand this with the help of an illustration. User A has prompted an idea which is biased and therefore demands a biased work, AI with the available information could either provide the biased answer if the information in favour is available in its system however the challenge is when the answer to the prompt is not in line with fed information. The generative ai at times hallucinate and create information which lack authenticity and might as well mimic works without proper authorization therefore cannot possibly come under the category of receiving copyright protection.

In this emerging void, introducing a new legal category of rules and regulation whereby ai- assisted works widening the scope of derivative work could get recognition and protection whereby the human contribution is partial but substantial in nature. Some experts also suggest that there should be compulsory licensing regimes, in particular lines as to how music sampling works, where the systems of artificial intelligence for the usage of training data would pay a collective fee.

For this blog, I have generated an artwork in the style of Amrita Sher-gil, who created the famous artwork of three girls. The ai generated art work is of two boys.

The AI generated work

Now this poses challenges as to which category it will fall into: derivative or original. Since style is not copyrighted however substantial part has remained unchanged and the human effort is very minimal and only a simple prompt was used.

The main obstacle is the key test for a derivative work which remains that the work must necessarily be based on a prior and protected expression and not just an abstract expression. Combining with artificial intelligence it becomes a herculean task as the system blends thousands of sources to generate a work piece that disguises itself to be new and original but is subtly indebted to others’ work.

Under the Indian law for copyright there are certain provisions giving recognition to moral

rights which are inclusive of the right to be attributed and the right against distortion of one’s original work. This brings us to situation which is clearly not addressed by the Indian courts whereby ai generated work whose algorithm is trained on human’s distinctive work, have the potential of morally infringing without copying economically.

In conclusion there is an urgent need for legal reform and international policy discussion. Intellectual property laws must change to reflect AI's transition from a tool to a potential co-creator or even an autonomous creator. The existing frameworks are insufficient, and in order to balance innovation, protection, and fairness, the legal community must take into account new protection categories or reinterpretations of established doctrines.

Author: Hrithhika Deb, 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

Rashi Goyal, India: AI-Generated Works and Ownership Under the Copyright Law, IPLINK-ASIA (Apr. 27, 2023), https://www.iplink-asia.com/article-detail.php?id=1286

Kripa Sridharan, Intersection of Intellectual Property Rights and AI-Generated Works: Part I, BAR & BENCH (Apr. 30, 2024), https://www.barandbench.com/view-point/intersection-intellectual-property-rights-ai-generated-works-part-i.

Singhania & Co. LLP, Artificial Intelligence and Intellectual Property: A Study Under the Indian Copyright Act, LIVE LAW (May 16, 2024), https://www.livelaw.in/law-firms/law-firm-articles-/artificial-intelligence-intellectual-property-indian-copyright-act-singhania-co-llp-238401.

The Next Rembrandt – Bringing the Old Master Back to Life, DUTCH DIGITAL DESIGN, MEDIUM (Apr. 5, 2016), https://medium.com/@DutchDigital/the-next-rembrandt-bringing-the-old-master-back-to-life-35dfb1653597

Muskaan Wadhwa, Legal Personhood of Artificial Intelligence and Its Implications on Copyright Law, NLIU-CSIPR BLOG (June 6, 2023), https://csipr.nliu.ac.in/miscellaneous/legal-personhood-of-artificial-intelligence-and-its-implications-on-copyright-law/.

Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 Harv. L. Rev. 977 (1993), https://www.jstor.org/stable/1089881.

Simon Chesterman, Artificial Intelligence and the Limits of Legal Personality, 16 J. Intell. Prop. L. & Prac. 124 (2021), https://academic.oup.com/jiplp/article-abstract/16/2/124/6010436