AI and the Crisis of Authorship in Copyright Law: An Indian Perspective

Written by: Milan Rajpurohit V, B.A.LL.B (Hons.) | Christ University Pune Lavasa 

JUSTICE

Introduction

One of the most fundamental concepts of the law of copyright, which is that one must be creative to be a human, had been challenged by AI as a force of creativity. Enhanced intelligent AI software can now autonomously paint, compose music[1], poetry, and a computer program, and even even legal material, with at least some human supervision. This transformation casts the conceptual underpinnings of copyright, namely, the idea of authorship, which are at the heart of the ownership and protection[2].

Introduced in the times when a creative spirit could not exist beyond the realm of human imagination, the Indian copyright regime, which was codified under the Copyright Act, 1957, was established. The legislation presumes that there exists a man who utilized his abilities, judgment and creativity to arrive at the work. However, the products of the AI undertaking are disruptive to this trend, bringing a sense of creation aesthetics, which does not necessarily correspond to authorship by a person. It leads to the so-called crisis of authorship: the existing legal system is not able to conclusively determine who the author of the work created by AI or other methods is.

This paper argues that the Indian copyright law as it is doctrinally unfitted to tackle the AI-generated work. Uncertainty in the definition of ownership, absence of any engine of copyright law and urgency in judicial or legislative intervention are all signs that merit lack of a particular legal framework of recognizing non-human creativity.

Authorship: Indian Copyright Law.

The essence of copyrights is authorship. The definition of the author of any one of the various categories under the definition of the author resides. With literary, artistic and musical works the individual who creates the work is called the author. Awkwardly, as to computer-generated works, the Act presupposes that what causes the work to be created is the person. This provision seems sufficiently flexible, at first sight, to deal with AI-generated works. Still, its understanding is on the historical understanding about computers being in the form of tools and not being able to generate creators by their own. The name is based on an idea that the work that he/she will create is the cause of his/her work.

The Indian courts have still managed to affirm this humanistic approach. In Eastern book company v. D.B. modak[3] the Supreme court ruled that the protection of copyright would only be given at a basic level of creativity which would involve the application of some form of skill and judgement. These conventions decry mechanical replication, and stress intellectual work as a precondition to originality. Similarly, in RG Anand v. Deluxe Films[4], the aspect of copyright was emphasized on the grounds that copyright protected the expression of ideas which were all creations of the human beings. It is such judicial interpretations that in the establishment of Indian copyright law, the entire law is basically anchored on the idea of human authorship. Thus, despite the fact that Section 2(d)[5] embodies a somewhat shallow ground upon which to balance the computer-generated works, it does not provide any adequate ground upon which the complexities created by autonomous AI systems can be balanced.

AI like Disruption Already within the Creative Production.

The distinction between artificial intelligence capabilities and the mechanisms employed in the past is that it is capable of providing outcome without human intervention based on training data and algorithms. The example of generative AI systems that operationally challenge the traditional notion of creativity are large language models and image-generation systems.

This leads to a number of burning questions:

·         Is the product created by AI eligible to be regarded as original, according to the copyright laws?

·         Is the provision prompt act sufficiently creative input?

·         who is the one to be thought of as the author, the user, the developer or the AI itself?

In the majority of cases the human user will just have to issue a prompt and the AI will make the decisions regarding the structure, composition and the end product. This renders the argument the user is the author in real sense, weak. Likewise, it is unethical to attribute the authorship to the developers since they have no control over the particular outputs attained by the AI. According to the above academic writing, in this situation where there is an absolute absence of human creativity to impact a creative work in this case, the absence of a human creative act can render the creative work in question unqualified to be subjected to a copyright protection. This would practically put them in the general arena. However, this is not among those consequences, which are not accompanied by any cost. By not providing defense to AI generated works, this is likely to mold down investment in AI technologies and in the creative industries. Conversely, it is possible to award a protection without any visible authorship and it may even poison the very idea of copyright law.

Comparative Jurisprudence: International Legal Processes.

The concept of AI-created works in jurisdiction was handled differently compared to the jurisdiction; and may offer valuable clarification to Indian law.

United States

The United States is a practice of high usership of human authorship. The U.S. Copyright Office has continued to reject copyrighting on material that has been produced entirely by AI, and stress that copyright subsistence only exists on material produced by human being. This position holds in line with judicial precedent which treats human creativity as a component necessary to defend a copyright.

United Kingdom

In the United Kingdom, there is a pragmatic approach that is taken. The author of a computer-generated work is the author of the work under consideration, i. e. the person who makes arrangements[6] that are necessary to the production of the work under consideration. It is the view that although direct creative contribution to the work may be lacking; the authorship of a human facilitator may be ascribed. Despite the fact that it offers certainty with regard to law, this approach has been criticized as being artificia[7]l and not providing an answer to the conceptual challenges, which may arise due to autonomous AI systems.

European Union

European Union emphasises the necessity of the human intellectual invention as the term of the copyright protection. Nevertheless, there are indications in the continued policy debate that a desire to seek out alternative regulations to control AI-based work.

Lessons for India

The position of India is yet to be known. Even though the similarities with what is happening in the UK are present in Section 2(d), it is not clear how such a specific fragment could be implemented in the scope of modern AI. The absence of the legal precedent also contributes to the fact that the problem of the renewal of the obsolete legal principles to the new tech-reality situation becomes even more difficult.

Ethical Rights and the Issue of the Non-Human creator.

An important point over the authorship debate is: Is there any violation of the moral rights of authors of works under Section 57[8] of the Copyright Act? Such rights include right of attribution and right to protect the integrity of the work.

The moral right is indissolubly related to personality and dignity of the author.[9] They indicate a notion that work is a continuation of identity of the creator. These should apply to works generated by AI, yet these conceptual problems seem to be relevant in this regard:

·         AI has no legal personality, cannot and does not claim and enforce rights.

·         It invalidates the philosophical basis of moral rights in case we attribute to a machine.

·         And there is no repute that is going to be defended when it came to AI.

Treating AI as the author would therefore not only disrupt the economic rights but also that of moral rights that creates inconsistencies in the copyright laws.

Indian Legal Vacuum.

The Indian copyright law does not have much to say about this subject, although the number of AI-generated content is on the increase. Legal writings and judicial pronouncements that follow an express directive as to who authors works that are produced by AI are non-existent.

Such a legal vacuum poses a number of practical difficulties:

·         Issues with ownership: The companies and authors have no idea what the ownership of the AI-generative works is.

·         Risk of litigation: There may be conflicts and inconsistent case laws moreover due to lack of clarity, this risk may be experienced.

One of the issues connected to innovation; A defeat to invest in an imaginative field that becomes an AI-driven one.

Statements by the government that the current legislation is adequate does not go into the more fundamental doctrinal questions raised by AI. The Indian copyright system like that is bound to be rendered irrelevant with the forthcoming technological capabilities.

Reconceptualizing authorship: a new legal paradigm.

To deal with the crisis of authorship, it is essential to reconsider the current doctrines of law. A number of strategies have been suggested:

1. Human-Centric Attribution

According to this method, the human user or developer, who took part in the development of the work, is considered to be the author of the work. Although this preserves the traditional structure, it can have an exaggerated impact on human contribution when it comes to autonomous AI instances.

2. ASL of AI as Author.

There are also researchers who have suggested the acknowledgment of AI as an author of the law. Nonetheless, this model has considerable difficulties, such as the absence of legal personality and an inability of the AI to possess or exercise rights.

3. Public Domain Approach

The other option is to put AI generated works in the public domain. Although this helps to rid the inconsistency of doctrines, this can hamper the economic incentive to innovate.[10]

4. Sui Generis Regime

A less radical one would be the establishment of a sui generis of laws that would specifically be written to apply to AI-generated works. A set up of this nature can:

·         Protect to a small extent, so as to promote innovation.

·         Further demarcate ownership.

·         Shun the misrepresentation of conventional copyright doctrines.

This view is gaining traction among academics as a feasible way of overcoming the issues brought upon by AI.

Conclusion

With the emergence of artificial intelligence, it has become apparent to the limitations of a copyright system that is based on the premise of human creativity. Authorship, long a stable and well-defined concept, is currently in crisis. The crisis is acute in India because there is no legal advice. Although the current provisions have some degree of solutions, they end up being insufficient in solving the complexities of AI-generated works. Indian copyright law needs to change so that it can be kept up to date in the digital age. These could include judicial reinterpretation of current statements or state intervention of explicitly dealing with AI-generated content. However, the best thing about the challenge is not only in the assignment of an author name but an overhaul of the entire policy of copyright law. As AI continues to blur the lines as to whether a particular act of creative expression is of human or machine creativity, it becomes necessary to adjust the law so that it is neither irrelevant nor ineffective in its governance of the future of creativity expression.

[1] U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence (2023). World Intellectual Property Organization (WIPO), Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence (2020),

[2] Annemarie Bridy, Coding Creativity: Copyright and the Artificially Intelligent Author, 5 Stan. Tech. L. Rev. 1 (2012).

[3] Eastern Book Co. v. D.B. Modak, (2008) 1 SCC 1

[4] R.G Anand v. Deluxe Films, (1978) 4 SCC 118

[5] The Copyright Act, 1957, S.2(d)

[6] Copyright, Designs and Patents Act 1988, c. 48, § 9(3) (UK).

[7] Lionel Bently & Brad Sherman, Intellectual Property Law 91 (5th ed. 2018).

[8] The Copyright Act, 1957, S.57

[9] Lionel Bently & Brad Sherman, Intellectual Property Law 91 (5th ed. 2018).

[10] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).