By Kanika Jain
Copyright refers to a legal right which provides protection and authorization to the original creations of human mind and intellect. Such work may be protected once the creation becomes an expression of the author and not merely an idea. Section 14 of the of the Copyright Act, 1957 states that a copyright is a collection of several other rights with respect to the subject matter or the content created. It refers to the right to enjoy the subject matter and use the same for economic purposes. Further, Section 17 of the said Act states that the author of the work shall be the owner of the copyright, Nevertheless, if the work is created upon instruction of employer under a contract for consideration, then eventually the owner of the work will be the employer. The rationale behind the requirement of author being a natural person is based on the observations of Courts, in determining copyright in a work. Some instances are as follows:
- Author is known as the first owner of the copyright.[1]
- Elements of authorship in selection, arrangement and coordination of material are necessary for protection of a compilation.[2]
- Compilation developed by any person devoting time, money, skill and labour amounted to a literary work wherein the author had a copyright.[3]
- The copyright-ability of the work is tested from the original work and exercise of skill and judgments by the author.[4]
In the case of Rupendra Kashyap Vs. Jiwan Publishing House Pvt. Ltd[5], the Hon’ble Court held “that in the context of question papers for an examination, that the author of the examination paper is a person who has compiled the questions; the person who does this compiling, is a natural person, a human being, and not an artificial person; Central Board of Secondary Education is not a natural person and it would be entitled to claim copyright in the examination papers only if it establishes and proves that it has engaged persons specifically for purposes of preparation of compilation, known as question papers, with a contract that copyright therein will vest in Central Board of Secondary Education”.[6]
On the other hand, the artworks based on Artificial Intelligence are relied heavily on the programmer who gives the input for creation of the work. However, with technological advancement, AI has developed a capability of understanding and creating outputs without any human interference.[7] The main issue raised, is regarding the protection of work created by AI. With the existing IP laws in India (especially copyright) the idea of copyright protection for the work created by AI seems to be difficult. In cases, where the work created by Artificial Intelligence is through human interference, then the authorship shall be attributed to the human. On the other hand, where the work created by AI is without human interference, then in such cases the laws related to authorship is silent. Furthermore, an assumption can be derived that the programming of AI is rendered in such a manner that it can create and produce equations to generate a result on its own. Therefore, the creativity of work may vest with the programmer who has created the AI. The existing copyright law in India is not exhaustive to give rights to Artificial Intelligence for creation of work. Moreover, the scope of acceptance of Artificial Intelligence as a separate entity still looks unclear.
The creation of work by AI is based on the parameters or extent of information to which the software programmer allows it to explore. As a result, AI may be able to create or produce the information which is already in existence or is a copyright of some other person. Primarily, AI is not capable of creating an original work, where the work created is merely an adaptation of existing information in the public domain. Therefore, the recognition of AI as a separate entity may lead to copyright violations of other copyright authors.
The term ‘original work’ is not defined under the Copyright Act, 1957, while decing the originality of work the Court usually refer to following parameters:
- Doctrine of Merger– Whether the idea and expression are intrinsically connected.
- Sweat of the Brow Doctrine– Whether the work was created with skill and labour by the author.
- Modicum of Creativity Doctrine– Whether the work possess minimum degree of creativity.
- Sweat of the brow/ Skill and Judgment Test– Whether the work is created with mere skill and labour or whether the work possess skill and judgment.
Referring the judgment pronounced by Hon’ble Supreme Court of India in Eastern Book Company & Ors vs D.B. Modak & Anr. which observed that “To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non- obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour.”[8]. Therefore, it is a basic requirement for any compilation or derivative work to demonstrate certain skills and judgment.
Since, AI is recognized as the author and owner of the work created. Then, an important question is raised in Who will be held liable for any infringement done by such AI? With this regard, Section 51 of the Copyright Act 1957, clearly states that:
51. When copyright infringed.— “Copyright in a work shall be deemed to be infringed—
(a) when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act—
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright;
(b) when any person—
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India, any infringing copies of the work
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.”[9]
Analyzing the given provision, it can be easily understood that copyright can only be infringed by a “person”. Since, AI is not classified as a legal entity, therefore, any infringement caused by AI will become a major issue, it will become difficult to place the liability for any infringement caused by AI. Since, AI doesn’t have any legal status of its own, so the issue of giving authorship rights to AI, may become ineffective unless a proper chain could be established to create liabilities for the acts done AI.
Talking about the complications associated with recognizing AI as the author of copyright. We need to understand whether the Indian Copyright Law is capable to accept AI as an author of the work. In relation to Section 17 of the Copyright Act 1957, author is recognized as first owner of the work. However, in few situations, the rights of ownership are transferred to the employer or any person on whose instance the work is created under an agreement. Therefore, in cases related to AI, the transfer of ownership will be quite difficult to establish as the AI cannot authorize or execute its creator or any other person, to become the owner of the work. In relation to the existing copyright Act of India, the author of the created work has a right to claim royalty which cannot be waived off. Therefore, where the AI is the author of the work, the question is raised whether who will determine the royalty? How will the royalty be distributed to AI? Whether the amount of royalty must be determined on reasonability. For any work created by AI, the accountability over any creation of AI will be difficult to be enforced. For example, if any work created by AI is defamatory or against public morality, then no legal action against AI can be taken except removing the content from the public domain or shutting down the content created by AI. However, such work may cause more harm, and without any accountability to regulate the creation of AI, it will become much more difficult to give the authorship in favour of AI.
Based on the above discussions, it can be concluded that the Indian laws are not adequately equipped to discuss the rights of AI and its creation. The Copyright Act 1957 mainly classifies the author to be a natural person and unless the AI are considered as legal entity to this effect, the inclusion of rights for AI is irrelevant and not in question. Consequently, the alternative approach is to amend the Copyright Act to include AI related works in a separate category or to give recognition AI to be an author. However, neither the amendment in Indian laws nor the recognition of AI as separate legal entity, looks a possible option in near future.
[1] Section 17, Copyright Act 1957.
[2] Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991).
[3] Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber, 61 (1995) DLT 6.
[4] Eastern Book Company v. D. B. Modak, (2008) 1 SCC 1.
[5] 1994 (28) DRJ 286.
[6] Navigators Logistics Ltd. vs Kashif Qureshi & Ors. (CS(COMM) 735/2016)
[7] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine available at https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html
[8] (2008) 1 SCC 1
[9] Section 51, Copyright Act 1957