Advantages and Disadvantages of Giving Authorship of Copyright to AI

Khurana and Khurana, Advocates and IP Attorneys India


In a Jimmy Fallon’s late-night show, he was harmonizing and singing with Sophia the Robot. That duet was a perfect piece of musical one would ever listen. And in another event an AI generated painting was sold in an auction for $432,500. 

Other than these, there are many instances where works were created autonomously by AI without any human assistance. So, in those cases who exactly should get copyright or authorship right over the work. It has been argued that it should be the owner of the computer program of that software, some people say it should be the robot itself to get Copyright protection.



(1) Fulfils the modicum of creativity criteria

In copyright there is a concept called originality. In EBC vs. DB Modak,[i] the Hon’ble Supreme Court made a major shift from ‘sweat of the Brow’ doctrine and shifted to ‘Modicum of creativity’ approach followed by USA. This Doctrine stipulates that originality subsists in a work where a sufficient amount of intellectual creativity & Judgement has gone into the creation of that work.

So, in cases where AI are creating arts and paintings, are the original works where one can see an amount of judgement and intellect as to how colours are to be used, how shadows are painted etc. It is no doubt exclusive and one of its kind.

(2) Such uncopyrighted work would lead to deviancy among Human beings:

Keeping such AI work uncopyrighted will lead to deviancy and brain drain among humans, because humans are inclined to use those things which are so easily and freely available in market and without anyone claiming it, people will be assured that it won’t t cause them any legal trouble.

(3) On occasions the juristic person behind such AI is not known: 

AI development is not like a guy sitting in a dark room with black hoodie on his head, doing endless coding. Developers of AI is a full-fledged team of engineers, designers, investors, management and operators. With so many associations, it is often disputed that who should be called the father of the AI. So, who are we going to award authorship of copyright. In such cases giving authorship to AI itself gives a better option. 

4) Encourage economic development:

Introducing such liberal laws would attract more investment from industrialists, entrepreneurs bringing FDI in country, which will in turn boost the economy.



(1) Violates the basic functioning behind existence of IPR:

(i) Labour theory:

Machines such as AI works on commands in binary language in 0’s and 1’s given by its developer or operator. Such commands are not made in a day or two, they take months and years. With lot of hard work, knowledge learning and experience coupled with money goes into the programming and coding. So, saying that end product is able to create art work on its own, well it’s all thanks to its developers and operators, who made it to work like that.

(ii) Incentive theory:

What drives humans to develop Intellectual Property is the hope that the end product will generate them monetary support to their creative mind going. But AI is not sentient and conscious it won’t do any good to AI if we give it incentive for its work. Unless its developers and manufactures are not given rewards and economic support AI won’t be able to keep its functioning. 

(iii) Personality Theory

The idea of a creator is a manifestation of its personality. Mind of a person thinks what he/she has experienced throughout their life. Introvert Extrovert personality, joyous and melancholy feelings all are part of their minds which are reflected on their work. Whereas AI has no ability to make choices of its own, it does not have its own will, it would only do what humans made them to do.

 (2) AI cannot be punished when it comes to violation of any IPR:

According to deterrence theory of HLA Hart, a punishment should be one where there is a pain or other consequences which normally aren’t considered pleasant. Can AI really feel a sort id pain or pleasure? Answer is very obvious, which shows that we cannot put any limitations when it comes to AI violating IPR. Which will create grey area prone to violation of economic and personal rights.



For such liberal approach where there are both benefits and risks involved, we should focus on problem solving to create an industrial friendly law. In above analysis, I personally see more disadvantages than advantages. So, for me the idea if giving authorship to AI is still fictional. It can be recommended that The owner of such AI should be provided with authorship. In case of contract if service the employer should get authorship. Amendments in present acts which provide authorship to AI in exceptional conditions with provided attached to it.




[i] {(2008) 1, SCC}

Khurana and Khurana, Advocates and IP Attorneys

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Khurana and Khurana, Advocates and IP Attorneys

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Contact PersonTarun Khurana

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