This Article is written by Shravya Mohan, a Second-Year Law Student of The National University of Advanced Legal Studies, Kochi

INTRODUCTION

Artificial intelligence, or AI, has grown in relevance in the modern era since it is now required for the majority of technological applications. AI's entry into a wide range of industries, including healthcare, aviation, space exploration, education, and the entertainment sector (including games, films, music, and art) has completely changed our way of life. To assure efficiency and eliminate errors, a tendency has emerged in all countries to automate the majority of tasks and minimise human interaction.

It is noteworthy that the Google AI system has become advanced to the extent that it has created a child of its own. The child AI is being trained by the parent AI to “such a high level that it outperforms every other human-built AI system”. The performance of the child AI is evaluated by the parent AI which acts as a controller. The information so received is used to improve the child AI’s performance. This process is repeated thousands of times to make the child AI more effective and advanced.

ARTIFICIAL INTELLIGENCE AND COPYRIGHT

There has been extensive use of computer programs in the generation of copyrighted works since the 1970s. The computer-generated works did not create many problems concerning copyright ownership. The reason was that computer programs were considered mere tools to support the activities which were creative in nature and human intervention was required for the production of the work. These programs were just like stationery items which required human beings to use them to create works. Things have completely changed now. With AI in place, computer programs are no longer tools alone and have the potential to generate the work independently by making their own decisions.[1]

The AI has the potential to create an enormous amount of work with less investment in a very short period. The works created by AI may qualify for copyright protection in all jurisdictions for being original. The requirement of use of “skill and judgment” in originality may be deemed to have been satisfied by the “programming and parameter on which such AI compiles and creates the work”. [2]However, there will be no author in the case of AI-generated work. In the case of AI-assisted works, there is human intervention. Therefore, in the case of the latter, the person who caused the work to be created by using artificial intelligence may claim himself to be the author, but the same is not true where the work has been created by AI itself without any human intervention. The issue of authorship in such cases has puzzled all

countries of the world. There can be three broad possibilities concerning the authorship issue. [3]

(i) the copyright system should recognize authorship for AI; (ii) there should be no authorship in AI-generated work and the work should fall into the “public domain”; and (iii) there should be sui generis law rather than copyright law to protect such works.

The author is encouraged to use his abilities, labour, and judgment to create new creative works by copyright protection. It would imply that "human creativity" and "machine creativity" are on equal footing if the AI is acknowledged as an artist and the things it creates are covered by copyright laws. On the other hand, it would imply that human creation is valued above machine creativity if AI-generated works were not covered by copyright laws. In the long run, human creativity is likely to be eliminated whether machine creativity is valued more highly than human ingenuity or if both are placed on an equal footing.[4]

There may be several problems when AI is thought of as the author of the AI-generated piece. AI-generated work might not always be perfect. The AI may employ harmful and biased language, which might lead to obscenity or slander; encourage violence based on a person's caste, creed, or religion; or have any other unfavourable effect. Since the AI has not been acknowledged as a person, it will be challenging to resolve its legal and criminal accountability in such a situation. At most, such work might be removed, or in the worst situation, AI software might be prohibited, but by then it might be too late and the work might have done irreversible harm.

Another concern is how the AI will be held accountable for infringement if the AI-generated work is "substantially similar" to an already-existing work that might be protected by copyright. Furthermore, given the lack of personhood, AI will not be permitted to transfer ownership of the work if it is recognized as an author.

The premise which reflects civil law in countries such as Germany, France, and Spain indicate that works created must bear the “imprint of the author’s personality”. The authorship, therefore, should be denied to AI in the AI-generated works as the AI does not have personality. Making AI a legal entity would mean that it should possess the capacity to enter into contracts with other persons. It will also have duties under the law and will be liable for its Act. Most importantly, it should have the capacity “to sue and be sued” under the law. Most countries are not in favour of granting legal status to AI.

Furthermore, AI will find it challenging to protect the author's rights under copyright law and to bargain for royalties with third parties. It will be difficult to make AI the author of the work because doing so is likely to cause more problems than it will solve.

OWNERSHIP AND ENFORCEMENT

The US Executive Order on "Safe, Secure, and Trustworthy Artificial Intelligence (AI)," published by the Biden administration on October 30, demonstrates how international leaders are beginning to view AI legislation differently. The future of humanity may be greatly affected by the implementation and usage of AI without the required protections; hence it is encouraging that regulatory approaches are changing.[5]

AI has brought up difficult issues in several sectors, including intellectual property (IP) ownership and enforcement. For instance, with just a few text instructions, users of generative AI programs like ChatGPT and Midjourney can create reasonably beautiful outputs even if they have little artistic talent. However, their use has brought up some copyright-related issues. Among these is the question of whether using writings and images that are protected by copyright as training data violates the rights of millions of online writers and artists. A similar question concerns copyright ownership of AI-generated content, whether it is produced independently or with human assistance.

A recent ruling in Stephen Thaler v. Shira Perlmutter by the United States District Court for the District of Columbia is noteworthy because it sheds light on whether copyright can apply to autonomously made works using artificial intelligence. In this instance, Mr. Thaler stated that his artificial intelligence (AI) system, "Creativity Machine," had independently produced a work of visual art. "Creativity Machine" identified himself as the author of the work in his application for copyright registration with the U.S. Copyright Office. Mr. Thaler further stated that, as the proprietor of "Creativity Machine," he would receive the copyright to the work.[6]

The application was denied by the copyright office due to the lack of human authorship in the submitted work. For the same reason, the Office denied his requests for it to reevaluate its decision. Later on, he appealed the denial to the District Court. The main legal point that the Court had to decide was whether an AI system's self-generated work could be protected by a copyright. The court concluded that human creativity was necessary for copyright protection after examining pertinent statute provisions, case laws, and theoretical grounds.
The court's rationale is consistent with the U.S. Copyright Office's overall stance regarding autonomously made work by artificial intelligence systems. In a March 2023 document titled "Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence," the copyright office made it clear that "only material that is the result of human creativity can be protected by copyright." In essence, nonhuman entities are not included in the definition of "author," as stated in the Constitution and the Copyright Act.[7]

In addition, the office provided precise instructions on how to include AI-generated content in registration forms and made it clear that copyright applicants had an obligation to disclose such content in any application. It also just started a public consultation on several AI-related copyright-related problems.

THE INDIAN SITUATION

Compare the current state of affairs in India with the U.S. episode. A piece of art named "Suryast" was filed by the Indian Copyright Office in 2020, and "RAGHAV Artificial Intelligence Painting App," an AI system, was identified as a co-author. An application where the same system was named as the sole author has previously been denied by the Copyright Office. The Copyright Office disregarded the human authorship criterion in Indian copyright law while awarding registration with an AI system as a co-author, even though India has not made any legislative revisions to the Copyright Act 1957.[8]

The office notified the human co-author of the application of its intention to revoke registration when the issue grew contentious. However, information obtained from the Indian Copyright Office website indicates that the aforementioned work is still registered. Additionally, the Copyright Office has not yet established mandatory disclosure guidelines for the application of AI or even started more extensive consultations on this crucial topic.

Examining the current situation in light of the suggestions made in the 161st Report of the Department-Related Parliamentary Standing Committee on Commerce, "Review of the Intellectual Property Rights Regime in India," published in July 2021, may also be helpful. The paper proposed to "incorporate the emerging technologies of AI and AI-related inventions in their ambit" by revisiting the Patent Act of 1970 and the Copyright Act of 1957.

After closely examining the study, it appears that several of its suggestions are meant to loosen the requirements for obtaining patents and copyrights. However, it doesn't seem that any research on the demands and IP-related difficulties facing India's AI innovation ecosystem has gone into these recommendations. The committee failed to consider the possible negative effects of this strategy on India's startup scene, this is concerning.

IP rights grant monopoly protection, and as monopolies, in general, can have far-reaching detrimental effects on society, we should exercise caution when it comes to directly extending current IP protections to work produced by AI. The independent creative output of AI systems defies many of the conventional economic reasons, such as the necessity of providing writers and inventors with incentives like copyrights or patents, since computers are not impacted by these kinds of incentives.

In conclusion, politicians and judges in India must exercise greater caution when it comes to weakening the human-centricity of copyright law.

When expanding current intellectual property rights to include works produced by artificial intelligence, caution must be used.

Fair use is a fundamental tenet of copyright law that allows for the restricted unrestricted use of copyright-protected work. There are various exceptions to the rule against copyright infringement, such as fair use. Fair use allows the use of copyrighted content for certain purposes, like research, news reporting, commentary, and criticism. However, because it is fact-specific and intricate, it is not always clear if a particular use of copyrighted material is covered by the fair use doctrine. However, fair use analysis raises new challenges in the context of AI. AI algorithms use large datasets to train and refine their algorithms, often including copyrighted material.

A substantial text and code dataset is used to train Meta's ChatGPT language model. This dataset contains copyrighted books, essays, and short stories. Meta states that Meta is allowed to use this copyrighted material. Nonetheless, several writers and publishers have sued Meta, alleging that the company's use of their intellectual property infringes their rights as outlined in the preceding sentences. The outcome of this lawsuit will determine the course of copyright law going forward. If the courts determine that Meta's use of copyrighted content qualifies as fair use, then using it to train AI language models might become more widespread. As a result, there may be more instances of possible copyright infringement, but there may also be new and creative applications of AI.[9]

WILL COPYRIGHT ISSUES GET TOUGHER WHEN HUMANS AND AI DO THE WORK TOGETHER?

The protection of creative works produced by human-machine collaboration against infringement is a complicated matter. The Copyright Office states that only the human-authored portions of the work will be protected by copyright if a human creatively selects or arranges AI-generated material, or alters it in a sufficiently creative manner. The AI-generated material itself will not be protected. Less is known about copyright protection for works coauthored by humans and machines, and joint authorship must be stated on registration applications.

The use of generative AI for creating artistic works can also lead to copyright infringement concerns if the output shows similarities to pre-existing works on the internet. These models are often trained on existing works found online, which may lead to similarities to previous works. While there are cases where a human creatively selects or arranges AI-generated material or modifies it, resulting in copyright protection for only the human-authored aspects of the work, the situation becomes murky regarding works jointly created by humans and machines. It's a requirement to name all joint authors, including potentially the AI, in registration applications. It may be challenging to ascertain whether generative AI output is a derivative work or infringes upon the rights of previous authors.[10]

REGULATORY FRAMEWORKS AROUND THE WORLD

The emergence of Artificial Intelligence (AI) has led several countries to create regulatory structures to monitor its effects and assimilation into the community:

European Union: Transparency, justice, and accountability in AI systems are highlighted in the ethical standards that the European Commission has recommended. Their strategy tends to prioritize protecting fundamental rights and guaranteeing security.

United States: While there isn't a single, all-encompassing government AI law, several entities are in charge of AI within their respective fields. For example, AI in medical devices is regulated by the FDA. A few states have passed rules about data privacy that affect AI applications, notably California.

China: The country's government unveiled a three-pronged AI development plan that prioritizes policy support, innovation promotion, and technical standard-setting. Although detailed ethical guidelines are still being developed, China is focused on leading the world in artificial intelligence by 2030.

Singapore: The nation has unveiled a model framework for AI governance that emphasizes the moral application of commercial AI applications while guaranteeing accountability, transparency, and justice.

Pakistan: Although Pakistan has been investigating the possibilities of artificial intelligence (AI), a thorough and specialized regulatory framework for AI is still in its infancy. The government has highlighted the importance of digital technologies, particularly AI, for the future of the nation through its "Digital Pakistan" campaign. Several stakeholders from academia and business have been pushing for more defined AI regulations that prioritize development, ethics, and research. However, comprehensive laws that resembled those that were developing in Europe and other regions of the world had not yet been fully developed and put into effect.

The diverse approaches adopted by different nations are a reflection of their respective political, cultural, and economic environments. Harmonizing various legislative frameworks will become an increasingly important task as AI's global reach develops.[11]

AI TRAINING AND COPYRIGHT INFRINGEMENT

The link between copyright infringement and AI training procedures mixes technology progress with intellectual property problems. AI has become more creative by being exposed to large datasets, including works that are protected by copyright. Although this training approach is essential to the development of AI, it poses relevant concerns regarding its compliance with copyright laws. There's also the question of whether copyright law permits fair use of AI training, which depends on replicating parts of preexisting works. Examining the four statutory considerations, this question considers the user's intent, nature, scope, and effect on the market. Concerns have also been raised concerning AI training's possible effects on the demand for unique works. There is concern that the increasing amount of content produced by AI could reduce the market demand and economic worth of works written by human authors. One of the key topics of discussion is how to maintain the economic interests of content creators while also promoting innovation.[12]

NEED FOR CHANGES IN INDIA

In India, no legislation or policy measures have yet to be tabled. Compared to fair use in the US, the fair dealing exception under Indian law is more restrictive. It can only be used for the precise exclusions specified by law, which at this time does not specifically involve AI model training.
The broad exception for "research" is simply one of the numerous justifications available to developers to support their acquisition of training datasets. But a court's definitive reading would be necessary to determine whether these arguments will hold up. Additionally, Indian law does not make an exception for text and data mining. The question of whether and under what conditions AI developers can utilize protected content to train their AI models remains unanswered.
It's interesting to note that Minister of State for Industry and Commerce Som Prakash stated that India's current copyright legislation was enough and that there was no plan to change it in light of works created by artificial intelligence. He was responding to a parliamentary inquiry on the matter Additionally, he stated that if generative AI users want to utilize copyrighted content and are not protected by fair dealing provisions, they must get permission from the creators. The letter did not, however, specify which particular fair dealing premise would apply to this kind of usage. Players in the industry have also begun to demand clarification and targeted actions to deal with this problem. In a recent letter to the IT Ministry, the Digital News Publisher Association (DNPA), an industry group for digital news publishers, demanded payment for the use of their creations to train AI models and emphasized the need to shield protected works from potential infringement by AI tools. AI developers in India are threatened by the possibility of an infringement claim due to the legal ambiguity in the ecosystem. As an alternative, AI developers may adopt a cautious stance and train their models solely on licensed or copyright-free sources. This has an impact on the calibre of the data sets used, which in turn affects the effectiveness of the AI model itself. This is because the data's diversity and amount are essential to the AI model's effectiveness. Developers of AI contend that a model trained on a limited amount of data will not be able to learn the necessary patterns to produce outputs of a high calibre. AI companies are especially impacted by this since they don't have the funds to purchase licensed data sets. Their competitive edge will be diminished if they are forced to either spend enormous sums of money on licensed data acquisition or restrict their training to unprotected sources exclusively.

CONCLUSION

A key component of preserving intellectual property and promoting innovation is copyright legislation. By granting them exclusive rights, it empowers creators to decide how their work is used, distributed, and adapted and motivates them to produce more. Further alternatives for authors to select the degree of protection they desire for their work are offered via Creative Commons licenses.

AI technology is becoming more and more integrated into the creative process. A legal framework that handles the copyright protection of collaborative works including AI is becoming increasingly necessary given AI's capacity to create original content and cooperate with humans. Maintaining the rights of creators while fostering creativity and innovation requires careful consideration. The precise course that copyright law will take about works created by artificial intelligence is hard to foresee. Nevertheless, there is no denying that the legal system governing copyright protection will change significantly and continuously as AI technology is incorporated into the creative process.

[1]NLIU cell for studies in Intellectual Property Rights. Available at: https://csipr.nliu.ac.in/miscellaneous/navigating-indian-copyright-framework-in-the-age-of-ai-generated-works/ (Accessed: 23 September 2024).

[2]Scaria, A.G. (2023) Ai and the issue of human-centricity in copyright law, The Hindu. Available at: https://www.thehindu.com/opinion/op-ed/ai-and-the-issue-of-human-centricity-in-copyright-law/article67485772.ece (Accessed: 23 September 2024).

[3] Agarwal, S. and Bhardwaj, C. (2021) The dilemma of copyright law and Artificial Intelligence in India, SSRN. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3818280 (Accessed: 23 September 2024).

[4] CHATGPT, ai content: All about legal challenges pertaining to copyright under Indian law (2023) Business Today. Available at: https://www.businesstoday.in/technology/news/story/chatgpt-ai-content-all-about-legal-challenges-pertaining-to-copyright-under-indian-law-399393-2023-09-22 (Accessed: 23 September 2024).

[5] How copyright law could threaten the AI industry in 2024 | reuters. Available at: https://www.reuters.com/legal/litigation/how-copyright-law-could-threaten-ai-industry-2024-2024-01-02/ (Accessed: 23 September 2024).

[6]Adegeest, D.-A. (2024) Copyright laws likely to pose challenges to the AI industry in 2024, Fashion United. Available at: https://fashionunited.uk/news/fashion/copyright-laws-likely-to-pose-challenges-to-the-ai-industry-in-2024/2024010573414 (Accessed: 23 September 2024).

[7] The future of copyright law in the age of Artificial Intelligence - GIPC (no date) Global IP Convention - GIPC. Available at: https://www.globalipconvention.com/blog/the-future-of-copyright-law-in-the-age-of-ai (Accessed: 23 September 2024).

[8] Nicholas Zalany, J.G. (2024) AI art registration denied – the Copyright Review Board tells applicant to gogh home, Global IP & Technology Law Blog. Available at: https://www.iptechblog.com/2024/01/ai-art-registration-denied-the-copyright-review-board-tells-applicant-to-gogh-home/ (Accessed: 23 September 2024).

[9] Goel, M. (2023) The future of copyright law in the age of Artificial Intelligence - GIPC, Global IP Convention - GIPC. Available at: https://www.globalipconvention.com/blog/the-future-of-copyright-law-in-the-age-of-ai (Accessed: 23 September 2024).

[10] Lian, A. (2023) he Legal Implications of AI-Generated Content in Copyright Law, INDIAai. Available at: https://indiaai.gov.in/article/the-legal-implications-of-ai-generated-content-in-copyright-law (Accessed: 23 September 2024).

[11] Bukhari, S.W., Hassan, S.U. and Aleem, Y. (2024) (PDF) impact of artificial intelligence on copyright law: Challenges ..., Impact Of Artificial Intelligence on Copyright Law: Challenges and Prospects . Available at: https://www.researchgate.net/publication/377334695_Impact_Of_Artificial_Intelligence_on_Copyright_Law_Challenges_and_Prospects (Accessed: 23 September 2024).

[12] Banerjee, K. (2024) AI and copyright infringement: Can ai be a creator? - copyright - India, AI And Copyright Infringement: Can AI Be a Creator? - Copyright - India. Available at: https://www.mondaq.com/india/copyright/1428552/ai-and-copyright-infringement-can-ai-be-a-creator-#:~:text=OWNERSHIP%20OF%20AI%2DGENERATED%20COPYRIGHT&text=The%20blurred%20lines%20of%20authorship,nuances%20that%20demand%20meticulous%20scrutiny. (Accessed: 23 September 2024).