Ownership and Authorship of AI under the ambit of Copyright law – By Ramit Rana

Introduction –

There is no doubt about the fact that technology has been rising in these contemporary times like never before. The unprecedented technological advancement has sparked a series of debates and a demand to change legal parameters regarding technology and law. One such trending topic is about the ownership and authorship of artificial intelligence under the purview of copyright law. Artificial intelligence is the branch of computer science which deals with the simulacrum of intelligent behavior in computers. In other words, it is the capability of a machine to mimic intelligent human behavior. One such human behavior is related to creating an Intellectual Property that qualifies to get copyright protection. Artificial Intelligence is capable of creating works which are subject to copyright. It includes works related to literary, artistic, scientific or musical domain. There is a tremendous scope of Artificial Intelligence in today’s time. Now, the Artificial Intelligence industry has an international market worth billions of dollars. This rapid rise of Artificial Intelligence has started legal debates about the ownership and authorship issues related to the fusion of Intellectual Property and Artificial Intelligence.

AI systems have already become a dominating factor in our day to day life. Artificial intelligence has achieved landmark success in various fields such that now we have AI doctors, AI lawyers, AI therapists. Moreover, AI systems have also significantly influenced many other fields, such as automated weapons,espionage, and even social policymaking. Apart from this, Artificial intelligence has created various works as an author that are subject to copyright. In 2016,the new Rembrandt painting was created by an AI system nearly 400 years after the death of the famous Dutch painterRembrandt Harmenszoon van Rijn. The painting was based on Rembrandt’s use of geometry, composition, and painting materials. AI systems have also made original works in almost every copyrightable medium, such as music, poetry, literature, news, and many others. There is an unfathomable rise in the technological input of intellectual property and Artificial intelligence is one of the harbingers of it. Thus, there is a scope of  authorship and ownership under copyright laws in the creative work made by artificial intelligence. However, there is still a major roadblock to Artificial intelligence copyright due to current rigid and inflexible copyright legislation.

Section 2(d) of the Copyright Act  deals with the Author of the work. Thus, Authorship under copyright is about an individual ‘who causes the work to be created’.Apart from this, the copyright must have an owner i.e. it must be owned by the human. Intellectual property is the intellectual creation of the human mind and it cannot belong to a non-living entity. Section 17 of the copyright act,1957 specifically deals with the first owner of the copyright entities such as literary, dramatic, musical, and artistic work in different circumstances There is a major conflict regarding the authorship and the ownership of the entities created by Artificial Intelligence. Authorship and Ownership both have similar factors regarding the artificial intelligence -generated work i.e. when the work is made by the artificial intelligence with human Interference, at that point the responsibility for work should be asserted by the human who gives systematic contributions to the artificial intelligence, Meanwhile, if there is an occurrence of the work made by the artificial intelligence with no human impedance, the proprietorship might be guaranteed by the copyright proprietor of the artificial intelligence, for example, the one who holds copyright over the artificial intelligence programming.

International Copyright Scenario for AI generated work –

Now the question arises who will be the author or owner of  the creation of artificial intelligence which is subject to copyright? There is still ambiguity about the ownership and authorship of the creative work of Artificial intelligence among various country’s copyright laws. There is a wide polarisation such that some countries like Australia, the USA are not in favor of non-human copyright. Whereas countries like UK, Ireland, New Zealand, Hong Kong, etc are in favor of giving authorship to the programmer of Artificial intelligence. (details can be accessed here.)The copyright of computer generated works in the U.K. is attributed to “the person by whom the arrangements necessary for the creation of the work are undertaken,” under section 9(3) of the U.K. Copyright, Designs and Patents Act, 1988.Whereas, the U.S. Copyright Office practices  have clearly stated thatthe Office won’t register works delivered by a machine or simple mechanical procedure that works arbitrarily or consequently with no inventive information or intercession from a human author.In the majority of cases, it is the programmer of the artificial intelligence who will be the first owner even if the work has been done by artificial intelligence. Therefore, there are different legal views regarding authorship and ownership in different countries.

Case laws based on AI ownership and authorship –

There is a sharp contrast in judgments among courts of different countries.  In case of Acohs Pty Ltd v Ucorp Pty Ltd, Acohs attested that copyright subsisted in the HTML code of the security data sheets, the Australian Federal Court found that the machine-produced HTML codes were not liable to copyright protection as they were not made by the human creators. Whereas, UK High Court in Nova Production Ltd v. Mazooma Game Ltd, held that the author of the computer game was the programmer who “devised the appearance of the various elements of the game and the rules and logic by which it was generated and who wrote the relevant computer program”. There are landmark cases where it has been held that non-human entity cannot be an owner of copyrighted work. In the case of Naruto vs Slater, which is also known as the monkey selfie case, the question arises that does the monkey has copyright over his selfie? The U.S. court held that the animal lacks statutory standing to claim copyright infringement of photographs known as the ‘Monkey Selfies. In Goldstein v. California, the U.S. Supreme Court interpreted the authorship requirement to include “any physical rendering of the fruits of creative intellectual or aesthetic labor.”. The Court reasoned that, in most cases, in order for a computer to generate any kind of artistic work, it would require significant input from an author or user. Thus, there is no uniformity of legal  viewin the matter of ownership and authorship of artificial intelligence.

Indian Copyright Act Conundrums-

As per Indian Copyright laws, there is still much ambiguity regarding ownership of non-human entities such as artificial intelligence. There is no concrete point regarding the first owner of a non-human entity and the transfer of its ownership under section 17 of the copyright act. Moreover, Moral rights of the author granted under section 57, are not applicable to the lifeless, emotionless Artificial Intelligence. Apart from this, there are many economic rights issues related to artificial intelligence. The collection of royalty from humans to AI or from one AI to another AI is inapplicable and almost impossible in practice. Also, there is an accountability issue regarding Artificial Intelligence as to who will be liable for any wrongdoings done by an AI. One cannot punish or penalize a non-human entity as it doesn’t have any possibility. Thus, Indian copyright legislation is not flexible and hence India is not ready for this. Henceforth, there is hardly any chance of Artificial Intelligence to get its separate ownership or authorship as per the Indian scenario.

Future Scenario-

In today’s time, technology is ubiquitous such that many of the games, music, paintings, etc are generated by Artificial intelligence. The current bone of contention is the fact that the lack of copyright protection in Artificial intelligence which can make the creators of games, music, etc economically vulnerable in the market. Their work can easily be copied by anyone which will lead them to drastic loss. Therefore, there should be a consensus among lawmakers to frame laws according to the current need for a technologically advanced society. World Intellectual property Organization (WIPO) has taken an initiative by organizing WIPO conversation on Artificial Intelligence and Intellectual Property. The aim of this initiative is to find a proper uniform legal parameter to curb this present issue of Artificial Intelligence and Intellectual Property. In the future, there is a possibility of amendments in copyright laws regarding ownership and authorship of advanced technology such as Artificial Intelligence. Also, There are suggestion to apply hire work doctrine in AI related works. According to the doctrine, if a work is made for hire, the employer is considered the creator of the work even if the employee i.e. AI actually created such work.

Conclusion-

The ongoing advancement of Artificial Intelligence abilities has brought about an expanded number of Artificial Intelligence -created works and an understanding that humans are no longer the onlysource of creativity, inventiveness, or advancement.Theoutdated nature of the current Copyright laws, neglects to mirror this contemporary reality, that there is an advent of an incredible number of Artificial Intelligence created works into the open space. The current copyright laws are not in favor of the programmers and owners of Artificial Intelligence devices and this limits their willingness to invest resources in the future development of Artificial Intelligence. There is an urgent need for the legal incentive which will financially benefit those responsible for Artificial Intelligence development, resulting in a significant boost in research and investment in the Artificial Intelligence sector. It is said that law is never constant, it changes with the change in society. Thus, there should be new copyright law that are flexible with the rising demand of the authorship and ownership of the Artificial Intelligencegenerated work.

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Ramit Rana  is a founding Partner at STEP NEXT LEGAL Advocates & Legal Consultants, New Delhi. He is a Practising Advocate at the Delhi High Court and other lower courts of Delhi. He has industry experience in Networking and Testing, as he has a B.Tech degree in Computer Science. Ramit has worked on cases under IPR (Trademark, Patents &Copyright), RERA, CCI, Arbitrations, DRC, Cyber Laws, Data Protection and Privacy laws, Property, Recovery Suits, 138 NI Act, Custom Matters, Arbitration, L.A, N.C.L.T. and all kinds of Civil and Criminal matters. He can be contacted at ramitrana89@gmail.com.   

Disclaimer: The views or opinions expressed are solely of the author.