The Digital Future

By Adityan Rangaswamy

Copyright is a set of legal rights given to authors for the creation of musical, artistic and literary works^[1]. In India, Copyrights are governed under the Indian Copyright Act, 1957^[2]. Under Section 13 of the Act, copyright protection is limited to certain classes of works^[3]. These include literary, dramatic, musical, and artistic works, cinematograph films, and sound recordings^[4]. In India, the “Sweat of the Brow” doctrine was used to determine the originality of a work and to check if copyright protection can be given to it^[5]. This states that even if the expression of an idea is not original, but if the overall work is not copied and is created through the author’s labour, then Copyright protection can be granted^[6]. But the Courts later shifted to the “Modicum of Creativity” test. As per this test, the author had to show a minimum level of creativity in the work^[7] to get copyright protection in India.   In the Eastern Book Company v. D.B. Modak case, the Supreme Court held that the work should not only be a result of the author’ labour but should also use their skills and judgement in the creation of the work^[8].

            In recent times, a problem has arisen with regards to Artificial Intelligence (AI) and Copyright. AI refers to machines that have been programmed to think like humans and have the ability to “rationalise and take action”^[9]. AI can be used in multiple sectors, including in the field of music, art, and literature^[10]. The computer program has an algorithm that allows it to analyse data that it receives and independently make decisions or be controlled by the programmer^[11]. When this is applied to art, music and literature, the programmers set the parameters in which the AI will work, but the actual work is done by the AI itself^[12]. The AI takes in these inputs and generates new works^[13]. In 2016, “New Rembrandt” was a 3-D painting made by an AI^[14]. The AI learned from multiple works of Rembrandt, who was a famous painter, and created a new work by incorporating his style of painting^[15]. Other examples of AI created works include the song “Daddy’s car” that was created by an AI and the poems written by Google’s AI after going through multiple books^[16]. With the rising trend in AI generated works, it is important to check if these works can be given copyright protection.

Many jurisdictions around the world do not provide copyright protection to AI generated works. In the US and Japan, there is no protection given to AI generated works^[17]. But in jurisdictions such as the UK and India, copyright for literary, dramatic or artistic works created by AI shall be given to “whom the arrangements necessary for the creation of the work are undertaken”^[18]. This shows that either the AI programmer can get copyright over the works or the individual under whom the programmer works for. In the Indian Copyright Act this position is given under section 2(d)^[19]. This shows us that copyright is given to the closest human connection to the AI. The Indian Copyright Act only recognises works created by humans and not AIs^[20]. This is because AIs are not recognised as legal entities under the law^[21].

Nowadays, there is a rising trend to use AI’s to generate literary and artistic works. However, the ownership of the copyright over these AI generated works remains to be an issue. In India, the “Modicum of Creativity” test is used^[22]. Applying this doctrine, it can be seen that AIs can meet the requirements of this test^[23]. But as they are not considered as Humans or legal entities, they are not given copyright over the works created^[24]. The copyright is either given to the person who creates the AI or to those who put the work into the public domain^[25]. But these individuals do not exactly contribute to the creativity of the work generated by the AI. Although the programmers fix the parameters in which the AI performs, it is the AI that actually does the work by using its creativity, skill and judgment to create the finished product.  So, it creates a situation whereby these individuals are given copyright over works to which they have not exercised any skill or judgment or creativity. This goes against the doctrine of “Modicum of Creativity”. Another problem that could arise is the fact that the AI uses machine learning to create its works^[26]. This means that it needs to use vast amounts of data to complete any work^[27]. This data that it uses could result in copyright infringement as the data in an existing copyright could be copied^[28].

Due to the vast amount of data and constant technological changes occurring, it becomes difficult for the legislature to incorporate a framework to overcome the problems faced above^[29]. One suggestion is to create a new legislation all together and to recognise an AI as a legal entity. If the AI is recognised as a legal entity for the purposes of Copyright, then the AI can become the owner of the Copyright. Firstly, this helps to overcome the problem of not meeting the “Modicum of creativity” test as now the one which exercised the skill and judgment is receiving the copyright. Secondly, AI created works can now be regulated differently from Human created works. AI created works use vast amounts of data which could include infringing material. So, a different standard of infringement can be given to the works created by AIs. A lower standard should be given to encourage innovations and more AI generated works. Thirdly, the AIs should not be considered to be separate entities from their creators or owners. If they are considered as separate legal entities, then the AIs will be held responsible for cases of infringement, which is not a viable option. Therefore, the AIs should be considered as an extension of the creators for the purposes of remuneration paid for use of Copyright and liability in cases of infringement of data. This also ensures that consideration paid for the right to use the copyright will go to the owners. This would also help to incentivise people to create more AI generated works. 

Lastly, it must be noted that AIs are perennial in nature and do not expire like Humans. In Section 24 of the Indian Copyright Act, the term of copyright protection is limited to 60 years after the death of the author^[30]. Thus, it can be inferred that a perpetual copyright over a work was not envisaged by the legislature. But in the case of an AI, it is highly likely that there can be perpetual ownership, if it is granted copyright protection. Therefore, the above-mentioned legislation that is exclusively created for AI’s can also be used to specify the term for which an AI can hold a copyright, which can be different from a “Human” copyright. 

In conclusion, it can be seen that a problem arises when trying to determine ownership of copyrights with regards to artic, musical, or literary works created by AIs. In jurisdictions such as India, the copyright is given to the closest human connection to the AI, which is the programmer or the owner of the AI. This causes the problem of lack of creativity, as the programmer or owner does not contribute to the creation of the final work. Another problem is the vast amount of data used by the AI to create the work. It could lead to copyright infringement and ambiguity with regards to who should be held liable. So, to solve these issues, AIs should be considered as legal entities for the purposes of Copyright and a separate type of copyright should be given to such works, with new legislations to govern them. At present, the “Modicum of Creativity” test is used to determine if a work can be protected by Copyright. But with regards to AI generated works, the “Sweat of the Brow” test should be used. This provides for a lower standard to provide copyright protection. An AI specific copyright law would help to ensure that the AI receives the copyright, which mitigates the problem of lack of creativity and also a lower standard of infringement should be created so that the vast amount of data that  the AI uses is not subject to unnecessary copyright infringement. The Swear of the Brow test states that a work can be granted copyright protection if the author applies their labour to create a work that is not an exact copy of the pre-existing work. In this case the AI, which is the author, would technically be applying its own labour and even though it uses vast amount of data, as long as it is not an exact reproduction, it would not amount to Copyright infringement. With the advancements of AI, it will become more and more imperative to have legislation’s to regulate AIs and their works. 

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[1] Copyright, WIPO, https://www.wipo.int/copyright/en/ (last visited Nov 13, 2020).

[2] The Indian Copyright Act, 1957, No.14, Acts of Parliament, 1957, Sec 13.

[3] Id.

[4] Id.

[5] University of London Press, Ltd. V. University Tutorial Press Ltd. (1916) 2 Ch 601

[6] Id.

[7] Feist v. Rural Telephone Service Co (1991) 499 U.S. 340

[8] Eastern Book Company & Ors vs D.B. Modak & Anr (2007) Appeal (civil) 6472 of 2004

[9] Jake Frankefield, How Artificial Intelligence Works Investopedia (2020), https://www.investopedia.com/terms/a/artificial-intelligence-ai.asp (last visited Nov 13, 2020).

[10] Id.

[11] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine (2017), https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#:~:text=Artificial%20intelligence%20is%20already%20being,used%20and%20reused%20by%20anyone (last visited Nov 13, 2020).

[12] Id.

[13] Id.

[14] Takashi B. Yamamoto, AI Created Works and Copyright 2,3 (2018), https://www.itlaw.jp/AI%20Created%20Works%20and%20Copyright.pdf (last visited Nov 13, 2020).

[15] Id.

[16] Id.

[17] Id at 4.

[18] Supra note 11.

[19] The Indian Copyright Act, 1957, No.14, Acts of Parliament, 1957, Sec 2(d).

[20] Ayush Pokhriyal & Vasu Gupta, Artificial Intelligence Generated works under Copyright Law, NLUJ Law Review 6(2) 113,114 (2020).

[21] Id.

[22] Supra note 7.

[23] Karthiayani A, Artificial Intelligence and Intellectual Property Laws in India. Is it time for renaissance? 3 (2018), https://www.ijlmh.com/artificial-intelligence-and-intellectual-property-laws-in-india-is-it-time-for-renaissance/ (last visited Nov 13, 2020).

[24] Id.

[25] Supra note 20 at 123.

[26] WIPO Conversation on Intellectual Property (IP) and Artificial Intelligence (AI), 8 (2020), https://www.wipo.int/meetings/en/details.jsp?meeting_id=55309 (last visited Nov 13, 2020

[27] Id.

[28] Id.

[29] Id at 10.

[30] The Indian Copyright Act, 1957, No.14, Acts of Parliament, 1957, Sec 24.

REFERENCES:

Copyright, Wipo.int, https://www.wipo.int/copyright/en/ (last visited Nov 13, 2020).

The Indian Copyright Act, 1957, No.14, Acts of Parliament, 1957.

University of London Press, Ltd. V. University Tutorial Press Ltd. (1916) 2 Ch 601

Eastern Book Company & Ors vs D.B. Modak & Anr (2007) Appeal (civil) 6472 of 2004

Feist v. Rural Telephone Service Co (1991) 499 U.S. 340

Jake Frankefield, How Artificial Intelligence Works Investopedia (2020), https://www.investopedia.com/terms/a/artificial-intelligence-ai.asp (last visited Nov 13, 2020).

Andres Guadamuz, Artificial intelligence and copyright Wipo Magazine (2017), https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#:~:text=Artificial%20intelligence%20is%20already%20being,used%20and%20reused%20by%20anyone (last visited Nov 13, 2020).

Takashi B. Yamamoto, AI Created Works and Copyright (2018), https://www.itlaw.jp/AI%20Created%20Works%20and%20Copyright.pdf (last visited Nov 13, 2020).

 Ayush Pokhriyal & Vasu Gupta, Artificial Intelligence Generated works under Copyright Law, NLUJ Law Review 6(2) (2020)

Karthiayani A, Artificial Intelligence and Intellectual Property Laws in India. Is it time for renaissance? (2018), https://www.ijlmh.com/artificial-intelligence-and-intellectual-property-laws-in-india-is-it-time-for-renaissance/ (last visited Nov 13, 2020).

WIPO Conversation On Intellectual Property (IP) and Artificial Intelligence (AI), (2020), https://www.wipo.int/meetings/en/details.jsp?meeting_id=55309 (last visited Nov 13, 2020).