Artificial Intelligence and Copyrightability

Introduction

The latest major development in terms of technology is artificial intelligence. Artificial intelligence is defined as “The latest advances in quest to build machines that can reason learn and act intelligently”[1] by the leading technology institute MIT. These machines that have the capacity to act intelligently are able to produce artistic, literal and musical work on their own. Artificial intelligence has become sophisticated and are able to create work that are entitled to protection through intellectual property laws.

The question arises that whether the recent trend of artificial intelligence generated work is entitle to such protection through copyright laws and whether the artificial intelligence holds enough legal capacity to be called an author under the copyright act. The work produced by artificial intelligence is under the judicial scope in a number of nations to conclude whether the AI generated work be granted copyright protection or not. There has been distinct reaction towards AI generated work and different opinions have been produced by scholars, jurists and lawyers across the globe.

Work produced by AI can be copyrightable

While the work produced by Artificial Intelligence lacks humanness but it still fulfils a number of criteria regarding copyrightability. In the Indian law section 13[2] of the Copyright act talks about the type of work that are entitled to copyright protection, if artificial intelligence generates any sort of musical, dramatic, literal work then it should be entitled to copyright protection. Any original work is vulnerable to unauthorised use similar to the work produced by humans. Copyrightability is subjected to originality and creativity that goes behind the production of any artistic, dramatic, literary or musical work. If the work produced by artificial intelligence passes the test of originality, then it should be entitled to copyright protection. Section 13 of the Copyright act emphasises on the term original, it can be interpreted that it is crucial for any work to be original in nature. Originality can be considered as the primary requisite for any work to be copyrightable. Apart from originality creativity serves as an important essential for any work to be entitled for copyright protection. The doctrine of modicum of creativity can be successfully implemented over the works of AI. A renowned precedent was established in the US jurisprudence in the case of Feist Publication Inc v Rural Telephone Service Co[3]. it was observed that “work that has been applied for copyright protection must be independent creation and modicum of creativity must be present, which signifies that there must be minimum or sufficient intellectual creativity and judgment in work and degree of creativity.” The work produced by artificial intelligence can be copyrightable and be entitled to protection under the copyright act as well since the Indian Jurisprudence has also shown an inclination towards the doctrine of modicum of creativity in the case of Eastern Book Company & Ors v D.B Modak[4]. The fulfilment of these two requisitions or essentials can grant copyrightability to the work produced by artificial intelligence.

Artificial Intelligence as an Author under the Copyright Act

The term author is defined under Section 2(d) [5]of the copyright act, but it does not state that an author of any copyrightable work has to be a human. The interpretation clause lacks certainty regarding the scope of the term person in provision and creates a gap in law regarding who can be an author under the copyright act. With the recent trends and developments in the technological sphere the ambit of the term author can be increased in order to include legal personalities as well. If an Artificial Intelligence is recognised as a legal person, then it can also be an author under the copyright act.

The Beijing internet court in a very recent judgment in the case Ren Jiayu v. Beijing Baidu Netcom Technology Co Ltd[6], recognised an AI generated image as a copyrightable work while granting authorship to the Artificial intelligence which generated the image[7]. This was a landmark judgment due to its recognition of technological evolution and artificial intelligence as a player in the copyright laws. A few conditions were laid down in this case for an artificial intelligence to be an author of a copyrightable work, first essential being that the work is related to music, literature, art or science. The work has to be original and creative in nature and lastly it should be a result of an intellectual achievement. [8]

Granting Legal personhood to Artificial Intelligence

Legal personhood is the first step of granting any entity legal rights and obligations. Salmond differentiated between legal person and natural person stating that “legal person are beings, real or imaginary to whom the law attributes personality by the way of fiction when there is none in fact. Natural persons are persons in fact as well as in law; legal persons are persons in law but not in fact”[9]

Artificial intelligence can be granted legal personhood which will further vest legal rights and obligations to AI. The rights and obligations should not be absolute but must be open to deliberation and discussion. In the case of Som Prakash Rekhi v. Union of India[10], it was held that “a bigger thrust of socio-political-scientific development evolution of a fictional personality to be juristic personality is inevitable.” Granting legal personality to artificial intelligence can help safeguard and protect the interests of both the AI and its maker.

Sophia was developed by a company called Hanson Robotics and in the words of Sophia itself “Think of me as a personification of our dreams for the future of AI, as well as a framework for advanced AI and robotics research” Recently Sophia was granted citizenship of Saudi Arabia making it the first ever AI robot to receive personhood in any nation.

Challenges of introducing artificial intelligence into the legal framework

Artificial intelligence works upon the already collected data which includes samples from other artists and then make up something that is recent and new. AI under such microscope has also lost the credibility of producing copyrightable work since it works on the previously fed data.

In the famous case of Naruto v Slater[11], the US court decided that “Naruto (and all animals) lacks statutory standing to sue under U.S Copyright Act since they are not humans.” The court denied claims of PETA and held that work with humanness or human authority are only entitled to copyright law.

In the landmark case of Thaler v Perlmutter[12], the question was to grant an artificial intelligence authorship for copyright, the court held that “United States Copyright law protects only works of human creation”

Granting personhood brings upon a number of questions that must be addressed and due to lack of legislation or mandate it is difficult to regulate artificial intelligence. The questions that arise out of granting personhood the artificial intelligence is obvious but must be acknowledged. These doubts are regarding who will be exercising these rights in the real world and who will be liable for the faults of the artificial intelligence. Artificial Intelligence at this stage cannot exercise its rights on its own and requires human intervention. Secondly it will be difficult to decide the limit upon which the machine can exercise its rights, with constant evolution the limit will keep on increasing which can pose a threat to the already existing legal system and the subjects of the legal system.

Conclusion

Artificial intelligence, the most recent advancement in the field of technology, has the potential to influence intellectual property laws across the globe. It’s capacity to produce work that is copyrightable and which can be entitled to intellectual protection has embarked deliberation and discussion across various jurisprudences. AI at this stage may not be able to influence the laws as much but the need of the hour is to work upon legislations in order to regulate and control Artificial Intelligence. The current development in artificial intelligence is not completely entitled to legal personhood. It is crucial to provide rules and regulations that can help humans use artificial intelligence rather than being afraid of it.  [13]

                                                                                             References

Statutes Reffered

• The Copyright Act, 1957
• Copyright Law of the United States, 1976

Books Reffered

• SALMOND J.W & FITZEGERALD, SALMOND ON JURISPRUDENCE 279 (LONDON STEVENS AND HAYNES.., 4TH ED. 1913)
• KURKI, VISA A.J., 'THE LEGAL PERSONHOOD OF ARTIFICIAL INTELLIGENCES', A THEORY OF LEGAL PERSONHOOD (OXFORD, 2019; ONLINE EDN, OXFORD ACADEMIC, 19 SEPT. 2019)

Articles and Journals

• Analysis of doctrines: ‘Sweat of the brow’ & ‘Modicum of creativity’ vis-a-vis Originality in Copyright Law, IndiaLaw LLP (Jan. 9, 2015)
• Lucy Rana, Artificial Intelligence And Copyright – The Authorship - Copyright, India (Dec. 18, 2019), https://www.mondaq.com/india/copyright/876800/artificial-intelligence and-copyright--the-authorsh
• Suchi Mehta, Analysis of Doctrines: ‘Sweat of the Brow’ and ‘Modicum of Creativity’ Vis-à-vis Originality in copyright, INDIA LAW (Janurary 9, 2015)
• Cassey Chisick, Erick Mayzel, Jessical Zagar, US Copyright decides there is no copyright in AI-Generated works – What about Canada?
• Simon Chesterman, Artificial Intelligence and Limits of Legal Personality, CAMBRIDGE UNIVERSITY PRESS (September 21, 2020)