The first of a series of blogposts dealing with the various IPR implications that arise with the development of AI, this post deals with the copyright issue of work created by AI entities.
Be it Arnold Schwarzenegger’s ‘Terminator’ or the Benedict Cumberbatch starrer, ‘The Imitation Game’, Artificial Intelligence (“AI“) has found itself a niche genre in 21st century cinema, where it is depicted as a species of rebellious machines to be feared. The Imitation Game, gives us an interesting insight into the life of a profoundly unusual English mathematician, Alan Turing; who might have been the first person to work on intelligent machines. Since Alan Turing conceptualised the contours of AI, the tech community has seen a surge in the AI development and research as well as the application of AI to almost all facets of life. AI is the development of machines that function like humans by mimicking human intellect and behaviour. Such machines work on algorithms that programs then to be used for solving problems, playing games, proving theorems, processing natural language and/or understanding etc. Many a times, such algorithms and learning machines are responsible for the creation of original work.
The recent boom of AI powered technology has shown us that human beings cannot be the sole creators of work. Computers (with or without the assistance of a human) may be able to create artistic or original work that qualifies for copyright protection. In fact, recently, Facebook had to cease operations of AI bots which conditioned themselves to operate in a language which was completely unbeknownst to its programmers.
With the rapid evolution of technology, and computers become faster and more capable, machines and other forms of AI will likely take center stage in the creative process, becoming the main drivers of creativity and innovation. For most works of art, copyright protection is affixed the moment that work is created. That means that the creator of the work enjoys the sole, exclusive right to determine how his work shall be used. This raises certain doubts regarding the ownership of the copyright of the work, which has been discussed from the perspective of Indian legal framework below.
According to the Indian Copyright Act, copyright protection is available for 1) an original work of the author, 2) fixed in a tangible medium 3) that has a minimal level of creativity. A work can only be subjected to copyright protection, if it checks all the three criteria. The Act states clearly that in the case of computer generated artistic work, the person “who causes the work to be created” will be termed as the author of the said work. (Section 2 (c) (vi)). Therefore, it can be concluded that the Act only seeks to recognize natural persons as authors. Indian courts have also emphasized on the same in Amarnath Sehgal v. Union of India. Some may argue that the individual whose intellectual labour has been invested in the creation of the algorithm on which the machine works should be given the copyright. However, this argument falls short when we consider that not all derivative work is subject to copyright protection. Moreover, there are three persons who can “cause the work to be created” – the person who keys in the data inputs, the creator of the algorithm and then in certain other cases, the person who “teaches” the dataset patterns. Who then do we term as the author of the work created?
Being an artificial person, a machine cannot legally enforce its rights of authorship, therefore if the authorship of the work has to either be fixed on a person or : –
- The ‘first authorship’ of the work should be granted to the legal person who is closest to the creation of the work, even though that person has not directly contributed to the creation of the work.
- A more extreme option can be that the work in question can be declared to have no author and the work could be made available in public domain.
While the first option is more practical in the current scenario, when machines are not advanced enough to work without inputs from human beings, the second option might be the solution in the long run. The purpose of Intellectual Property Rights is to incentivize members of the society to create original and creative work. However, when they are deprived of such rights, it creates a disincentive and may also discourage AI creators from working on new algorithms. A fine line has to be drawn between providing incentive to persons without depriving them of their rights to exploit the outcomes of their inventions.
[This post has been written by Gauri Shukla and Anshul Dalmia, 5th year and 1st year students respectively at WBNUJS, Kolkata, and edited by Drishti Das, a 5th year law student at WBNUJS, Kolkata].