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Artificial Intelligence And Copyright: Faith Of Copyright Owner In Presence Of AI

This comprehensive examination delves into the intricate confluence of artificial intelligence (AI) and copyright law. It investigates whether AI-generated works can be granted ownership and copyright protection, scrutinizing issues of originality, authorship, liabilities in cases of infringement, and the applicability of fair use. The analysis reveals that AI-generated works often lack the originality required for copyright protection.

Authorship questions arise due to AI's absence of human consciousness. Determining liabilities in copyright infringement cases involving AI remains complex, as does deciding the duration of copyright protection for AI-generated works. The study also explores the doctrine of fair use in the context of AI-generated content. In conclusion, it suggests the need for legal clarity, international collaboration, fair use evolution, responsible AI development, and efficient dispute resolution mechanisms to balance the rights of human creators with AI's unique role in content creation.

The intersection of artificial intelligence (AI) and copyright law has brought forth a myriad of intricate legal questions and challenges. Central to this confluence is the fundamental query of whether AI-generated works can be endowed with ownership and protected under copyright law which is essential for the protection of the faith of the copyright owner as it is an essential element for determination of the liabilities in case of infringement of the work which has been granted copyright protection.

This inquiry unravels a multifaceted exploration into the very essence of originality and creativity in works crafted by AI, the vexing question of authorship in the realm of AI-generated content, and the intricate determination of liabilities in cases of copyright infringement involving AI creations.

This discussion embarks on an in-depth examination of the multifaceted dimensions of this complex issue, scrutinizing both the legal frameworks and the practical implications of AI-generated works within the context of copyright law.

It grapples with a series of critical questions, including whether AI-generated works genuinely exhibit the required level of originality as mandated by copyright law, or if they predominantly derive from learned patterns and data-driven processes. Furthermore, the discourse delves into the contentious issue of authorship within AI-generated works, given the absence of human consciousness and subjective creative intent in AI.

It seeks to address questions about who should be designated as the author of these works and how such authorship status influences copyright ownership. In cases of copyright infringement involving AI-generated works, this exploration endeavours to untangle the complex web of determining liabilities. It probes into the question of who should bear the responsibility for copyright violations linked to AI creations.

Lastly, the discourse explores the relevance of the doctrine of fair use, or fair dealing in certain jurisdictions, within the context of AI-generated works. It investigates the factors that should be considered in assessing whether a particular use can be deemed fair use when AI-generated content is involved.

Artificial Intelligence And Copyright:

The main issue with the work generated by AI program is that whether the work created by AI can be given Ownership under the Copyright law. The object of determining this question is to ascertain right and liability of the work protected under the copyright law. To answer this question, we have to analyse the requirements for a work to get protection under the copy right law.

To receive protection under copyright law, a creative work must meet several key requirements. First and foremost, the work must be original, reflecting the author's independent creativity and not be a direct copy of another work.

It should also be fixed in a tangible medium of expression, which means it must be recorded or stored in a way that can be perceived, reproduced, or communicated, such as written documents, digital files, or audio recordings. While the work should be original, it doesn't need to be exceptionally creative; a minimal level of creativity is sufficient.

Copyright protection in India is governed by the Copyright Act, 1957[1]. To receive protection under this Act, a creative work must adhere to certain fundamental requirements. Firstly, it should be original, reflecting independent creative effort and not be a mere copy of another work, as outlined in Section 13 of the Act.

The Act does not demand exceptional creativity, but it does necessitate a basic degree of originality. Additionally, the work must be fixed in a tangible medium of expression, making it perceptible, reproducible, or communicable, as specified in Section 13(1)(a) of the Act.

This fixation requirement is essential for copyright protection, and it's further emphasized in Section 2(y). Copyright is automatically granted upon the creation and fixation of the work, as stated in Section 17 of the Act, and formal registration is not mandatory, though it can be beneficial for legal purposes.

Now the key point of consideration is whether the AI generated work original. The court in Eastern Book Company v. D.B. Modak [2] held that the Copyright Act 1957 provides that for grant of copyright protection, the work must be original i.e. it should originate from the author. In India, a work must involve a minimum degree of creativity and not be a product of only skill and labour. The Generative AI typically does not generate completely original data in the sense of creating entirely new concepts or information that have never existed before.

Instead, it generates data that is based on the patterns and structures it has learned from the training dataset. In other words, generative AI produces data that is similar to what it has seen during training but is not necessarily entirely novel or uniquely creative. The quality of the generated data depends on the model's training and the diversity of the training dataset.

In essence, generative AI is a tool for synthesizing data that fits within the boundaries of what it has learned from existing data but does not possess true creativity or the ability to invent entirely original content. This sums up one aspect of the discussion that AI tools doses not possess originality in its work as Generative AI tools train on data scrapped from millions of pre-existing sources and give outputs based on a combination of these sources and their models.

Now the other aspect of creativity is to be taken into consideration while ascertaining whether the AI tools fulfil the aspect of creativity. The Generative AI can exhibit aspects of creativity within the constraints of its training data. It can produce data that appears creative because it learns patterns, styles, and structures from the training dataset, which it can then recombine and generate in new and interesting ways.

However, this creativity is often a form of "recombination" rather than true creative innovation or original thought. Generative AI models can create novel variations, artistic compositions, or even generate text that appears imaginative, but these are ultimately based on the data they have been exposed to during training.

They lack the capacity for true creative thinking, imagination, or the ability to generate entirely original concepts or ideas that go beyond their training data. In summary, generative AI can mimic creativity and produce novel outputs, but it doesn't possess creative consciousness or independent, innovative thinking. It generates based on patterns and knowledge extracted from its training data.

In 2021, an application was filed to the US Copyright office, for copyright registration of a comic book consisting of text and images (created partly by a human and partly by AI tool Midjourney). The US Copyright Office refused to grant copyright protection to that portion of the comic book which was created by the AI tool. It also clarified that it will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.[3]

The position in India may differ from the US Copyright office's view as the copyright act gives protection to two kinds of works: primary works and derivative works. Under the Indian Copyright Act, specifically the Copyright Act, 1957, the concepts of primary work and derivative work are clearly outlined. The term "original work" is used to describe what we've referred to as a primary work, and it is defined in Section 13 of the Act. While the Act does not explicitly define "original work," it suggests that copyright protection applies to original literary, dramatic, musical, and artistic creations, emphasizing that these works should be the result of the author's skill, judgment, and labour.

In the context of derivative works, the Indian Copyright Act addresses them as adaptations or modifications of the original work. In Section 2(ffa) of the Act, a derivative work is referred to as an "adaptation" and is defined as a work that has been altered, arranged, or transformed from the original work. Furthermore, Section 14 of the Act specifies the exclusive rights of the copyright holder, which includes the right to create adaptations or derivative works based on the original work. This give us a case to argue that the output produced by AI tools are derivative works and not copied from the primary work.

The another aspect of conferring copyright protection under the copyright law is to determine who should be the author for the work to get protection under the copyright law. Here our primary focus is on the authorship of the computer-generated work as we are concerned with the ownership of the work generated with the work generated by the AI.

The copyright act recognises authorship of computer-generated work. It stipulates that the author of literary, dramatic, musical or artistic work which are computer-generated is the "person who causes the work to be created."[4] This provision was inserted into the Copyright Act through the 1994 amendments. A reading of the Joint Committee Report on the Copyright ( Second Amendment Bill), 1992 (Report) suggests that the provision was inserted keeping in mind the rapid developments in technology, including artificial intelligence.

The Committee acknowledged that through artificial intelligence, computers were capable of giving new ideas, apart from what is fed into the system. The Committee also discussed the need for protecting works generated by a computer such as computerised music, animated films etc.

The Committee relied on the Copyright, Designs and Patents Act, 1988 of the UK which grants protection to "computer-generated works" i.e. work generated by a computer where there is no human author. The Committee also acknowledged the need for distinguishing between computer generated works and computer assisted works (where human contributions can be easily identified).

Section 2(d)(vi), the Copyright Act 1957 provision that the person who causes the computer-generated work to be created will be the author of the work. The copyright law has interpreted natural person as author of the copyright work. Further this can be better understood by the interpretation by the court in respect to copyright law.

In Camlin Pvt. Ltd. v. National Pencil Industries,[5] the Delhi High Court elaborated the meaning of the term "author". The Courts stated that "mechanically reproduced printed carton" was not a subject matter of copyright for the reason that it was not possible to determine who the author of such carton was. The Court further stated that "copyright is conferred only upon authors or those who are natural person from whom the work has originated.

In the circumstances the plaintiff cannot claim any copyright in any carton that has been mechanically reproduced by a printing process as the work cannot be said to have originated from the author. A machine cannot be an author of an artistic work, nor can it have a copyright therein"

The Delhi high court in the case of Navigators Logistics Ltd. v. Kashif Qureshi & Ors.[6] rejected a copyright claim over a list compiled by a computer, on the grounds of, inter alia, lack of human intervention.

In a case filed in late 2022, Andersen v. Stability AI ltd.[7], three artists formed a class to sue multiple generative AI platforms on the basis of the AI using their original works without license to train their AI in their styles, allowing users to generate works that may be insufficiently transformative from their existing, protected works, and, as a result, would be unauthorized derivative works. If a court finds that the AI's works are unauthorized and derivative, substantial infringement penalties can apply.

Further, in 2020, the Copyright Office had recognized an AI tool, Raghav, as an author of an art work produced by the AI tool, along with the developer of the AI tool. This was seen as the first time that an AI tool was being recognized as an author of a copyrighted work in India. However, subsequently the Copyright Office issued a withdrawal notice, stating that the onus was on the applicant to inform the Copyright Office about the legal status of the AI tool.[8]

This can be further understood with reference to an example i.e. when a work is created by using a Microsoft program the person who puts his inputs in the program is considered as the author of the program. It is not the program which is the considered as the author, as the inputs are provided by the user of the program and it includes their creativity and knowledge, while in the case of work generated by AI the user does not puts in their knowledge, skill or creativity it is the software which does all the task and generates the due output.[9]

Therefore from the above we can draw a conclusion that in case of AI generated work is given the authorship it would be against the legislative intend of the legislature and also against the interpretation of the court.

From the above discussion now let us try to draw a conclusion that whether AI generated work can be given ownership under the copyright law. As discussed above to answer this question we have to analyse the requirement for a work to get protection under the copyright law i.e. is the AI generated work original, creative and can the authorship of the work conferred on anyone other then a natural person.

The above discussion answers all the question helps us to draw to a conclusion that the AI generated work does not fulfil any of the requirement as provided under the copyright law. Therefore, the answer to the question whether AI generated work can be given ownership under the copyright law is in negative.

Faith Of Copyright Owner In The Presence Of AI: Determination Of Liabilities:

The question of the authorship to the AI software will further raise questions as to the determination of the liabilities in the cases of infringement of the work having copyright protection under the copyright act. Certainly. Under the Copyright Act, there are several liabilities and offenses defined to protect the rights of copyright holders and deter copyright infringement which protects the rights and liability of the copyright owners.

The Indian copyright law imposes various liabilities under the copyright law which are as following:
Civil liabilities are primarily governed by Section 51 of the Copyright Act. This section addresses copyright infringement, making it clear that anyone who reproduces, distributes, performs, displays, or adapts a copyrighted work without the authorization of the copyright holder can be held civilly liable. The consequences of such infringement may include civil penalties, such as the payment of damages to the copyright owner, the issuance of injunctions to stop further infringement, and the seizure or destruction of infringing copies.

Criminal liabilities, on the other hand, are addressed in Section 63 of the Copyright Act. Engaging in activities like the production and distribution of pirated or counterfeit copyrighted materials can lead to criminal liability, including fines and imprisonment. This is a more severe form of liability that may apply when infringement is carried out on a large scale or with intent to profit significantly.

Furthermore, the Act also addresses circumvention of technological protection measures, as outlined in Section 65A. This section imposes penalties for intentionally circumventing technological measures put in place to prevent unauthorized access to copyrighted works. Such measures are often used to protect digital content and restrict unauthorized copying or distribution. Moral rights, recognized in Section 57, grant authors and creators the right to object to derogatory treatment of their works and claim authorship.

Violating these moral rights can result in legal action and liability, especially when there is unauthorized distortion or misuse of the original work. Online copyright infringement, a growing concern in the digital age, is also addressed within the Copyright Act, particularly in Section 52. This section holds internet service providers and intermediaries accountable for hosting or providing access to infringing content.

It may also specify safe harbour provisions for some service providers, outlining their responsibilities and limitations in addressing online infringement effectively. It's important to note that the specific liabilities and penalties may vary from one country to another, as copyright laws are often national in scope. Additionally, the Copyright Act may be periodically updated to address new challenges and technologies related to copyright and intellectual property.

Therefore, it's advisable to consult the most recent version of the Copyright Act in a specific jurisdiction for precise details regarding liabilities and offenses. These all the liabilities are vested on the author of the work if the copyright protection is given to the AI generated work, then another question arise that upon whom these liability will be vested.

The copyright protection serves as an incentive for the author to produce more creative works using his skills, labour and judgement. If the AI is recognised as an author and the AI generated works are protected under the copyright law, then it would mean that "human creativity" and "machine creativity" are on the same pedestal.

On the other hand, if AI-generated works are not protected by copyright law, then it would necessarily mean that human creativity is preferred over machine creativity. Preferring machine creativity over human creativity or putting both at the same pedestal is likely to kill human creativity in the long run.[10]

The question whether the AI generated work can be granted ownership under the copyright law has already been discussed and the answer to which is in negative. The another contention is that if the AI generated work infringes the right of the copyright holder who would be liable for the infringement. In case where the work does not have a defined owner then it is a difficult task to determine the liability for the infringement of the work which has been already granted protection under the copyright law.

If AI-Generated work is granted copyright then another issue will arise as to the duration of the term for which the AI generated work would be granted protection the term may be counted from the date of publication for a period of 50 or 60 years depending upon the laws of the countries. Under the copyright act the protection is granted to the author for life time plus 60 years. AI not being an human being if the protection is granted the determination of the period for which the protection is to be continued would become a point of dispute.

AI And The Doctrine Of Fair Use:

The doctrine of fair use is a fundamental legal principle in copyright law that allows for the limited use of copyrighted material without the need for permission or payment to the copyright holder under specific circumstances. It is designed to strike a balance between protecting the exclusive rights of copyright owners and fostering essential elements of a free and creative society, including freedom of expression, education, critique, and knowledge dissemination.

Several factors guide the determination of fair use, such as the purpose of use, the nature of the copyrighted work, the quantity of the material used, and the potential impact on the market for the original work.

If a use is for purposes like criticism, commentary, news reporting, teaching, scholarship, research, or parody, it is more likely to qualify as fair use. While fair use is a critical element of copyright law, it is a complex, case-specific doctrine, and courts examine each situation individually to determine whether a particular use meets the fair use criteria. This doctrine is pivotal in promoting creativity and free expression while still respecting the rights of copyright holders.

The Indian Copyright Act, 1957, does not explicitly mention the "fair use" doctrine as a distinct legal concept, as the U.S. copyright law does. Instead, the Act uses the term "fair dealing," and it outlines specific exceptions and limitations to copyright infringement in various sections.

These exceptions allow for certain uses of copyrighted material without the copyright owner's permission under specific conditions. For instance, Section 52 of the Indian Copyright Act includes several exceptions that are akin to the fair use concept.

These include provisions for fair dealing for purposes such as research, private study, criticism, review, news reporting, and education. These exceptions permit the use of copyrighted material without authorization, provided that the use falls within the limits prescribed by the Act and is consistent with fair dealing principles.

In deciding fair use cases, courts must consider the following factors having equal weight:
  1. The purpose and character of the use, including whether it is commercial, transformative, and non expressive;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.[11]
The court while determining whether a work falls within the doctrine of Fair use takes into consideration the above following factors, however while determining whether a work falls within the domain of fair use the court considers each case on individually as determining them on a set president would be ineffective.

Now let us discuss whether the work generated by the AI program falls within the doctrine of fair use. For a work to get protection under the Doctrine of Fair use it has to full fill the above-mentioned requirements. Let's assume that the underlying text was copied in some way during the ChatGPT training process. Let's further assume that outputs from ChatGPT are, at least sometimes, derivative works under copyright law. If that is the case, do copyright owners of the original works have a copyright infringement claim against OpenAI?

Not if the copying and the output generation are covered by the doctrine of "fair use." If a use qualifies as fair use, then actions that would otherwise be prohibited would not be deemed an infringement of copyright.[12]

Therefore, while determining the work generated by AI program the court has to test the output based on the above-mentioned conditions. Like if the AI program is involved in commercial activities or transformative work the it would not fall within the doctrine of fair use.

In the rapidly evolving intersection of artificial intelligence and copyright law, a multitude of intricate legal questions and challenges emerge. At the core of this intersection lies the fundamental query of whether AI-generated works can be granted ownership and protection under copyright law.

To address this complex issue, one must examine the essence of originality and creativity within AI-generated content, contemplate the question of authorship for AI creations, and untangle the intricate web of determining liabilities in cases of copyright infringement involving AI. AI-generated works often fail to meet the required level of originality as mandated by copyright law, primarily deriving from patterns and data-driven processes.

The absence of human consciousness and subjective creative intent in AI-generated content makes it challenging to designate authorship, raising questions about who should be recognized as the author of these works and how authorship status influences copyright ownership. Furthermore, when copyright infringement cases involve AI-generated works, determining liabilities becomes a complex issue, with questions arising about who should bear the responsibility for copyright violations.

In cases where AI-generated works mimic creativity within the constraints of their training data, they may exhibit recombination of existing patterns and structures, rather than true creative innovation or original thought. If copyright protection is extended to AI-generated works, it opens up discussions about the duration of such protection, as AI lacks human attributes.

Additionally, the doctrine of fair use, or fair dealing in certain jurisdictions, becomes a relevant consideration when assessing the permissibility of using AI-generated content, taking into account factors like the purpose of use, the nature of the work, the quantity used, and the potential market impact.

Navigating the intricate confluence of artificial intelligence and copyright law presents a myriad of challenges and questions. To address these complex issues effectively, several key suggestions emerge. Firstly, there's a need for legal clarity regarding the eligibility of AI-generated works for copyright protection. This clarity should encompass defining the requisite level of originality and establishing guidelines for authorship.

Specifically, AI itself should not be considered an author, and authorship should be attributed to those who develop, train, or deploy AI tools. Crafting a dedicated legal framework for AI-generated works, along with international collaboration and standardization, is essential to ensure consistent practices on a global scale.

Furthermore, fair use guidelines must evolve to accommodate AI's role in content creation, considering factors like purpose, nature of the AI-generated work, and market impact. Encouraging responsible AI development is vital, with a focus on ethical principles that prevent copyright violations and promote transparency.

Liability and enforcement mechanisms should be reviewed and updated, making AI platforms share the responsibility for monitoring and preventing copyright infringements. Public awareness and education initiatives are necessary to ensure that creators, users, and AI developers understand the legal nuances and ethical considerations.

Continued monitoring and adaptation of copyright laws are essential to keep pace with the rapid evolution of AI. Finally, efficient dispute resolution mechanisms, such as specialized AI courts, can be established to address copyright disputes involving AI-generated works fairly and promptly.

These suggestions collectively work to strike a balance between protecting creative works and recognizing AI's distinctive role in content creation, ensuring a fair and just legal framework for all stakeholders.

In conclusion, the intricacies of aligning existing copyright law with the realm of AI-generated creativity reveal a delicate balance between protecting human creators' rights and recognizing the unique nature of AI-generated works. Currently, AI-generated works often do not fulfil the requirements for copyright protection, leading to the conclusion that granting ownership under copyright law is not feasible. The future of copyright law in the age of AI continues to evolve, and addressing these complex questions will be crucial in shaping the legal landscape.

The determination of liabilities in the presence of AI-generated works, should they receive copyright protection, poses additional challenges, as does determining the duration of copyright protection. The application of the doctrine of fair use to AI-generated content will also depend on specific circumstances and legal interpretations.

  2. 2002 PTC 641
  4. Section 2(d)(vi), the Copyright Act 1957
  5. AIR 1986 Delhi 444
  6. 254 (2018) DLT 307
  7. 3:23-cv-00201, (N.D. Cal.)
  8. Exclusive: Indian Copyright Office issues withdrawal notice to AI co-author | Managing Intellectual Property
  9. Andres Guadamuz, Artificial Intelligence and copyright -
  10. V. K. Ahuja, Artificial Intelligence And Copyright: Issues And Challenges -
  11. Diana Bikbaeva, AI Trained on Copyrighted Works: When Is It Fair Use?
  12. Diana Bikbaeva, AI Trained on Copyrighted Works: When Is It Fair Use? -

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