Copyright Authorship to Artificial Intelligence

Khurana and Khurana, Advocates and IP Attorneys India

Copyright is an exclusive right granted to the author of an original work. It is a protection provided to the original creation of human mind. In India, copyright is granted to the expression of idea and not to the idea itself. These rights, on part of the owner, prevent the public from copying or exploiting his/her work.

It was held in Eastern Book Company v. D.B. Modak [1], that the main objective of the Copyright Act, 1957 is to protect the exclusive right of author over his work from an unlawful exploitation or infringement. Copyright is a right to restrict other people from copying author’s work without his prior consent or permission as he is the exclusive owner of the work. Thus, the ultimate object of Copyright Act, 1957 is to create a balance between the interest and the right of the author and that of the general public. It can be seen that since 1970s computer generated work have a lot of attraction. However, with the development of technology Artificial Intelligence is capable of creating output without human intervention. With the existing set of frameworks, it is difficult to extend copyright protection to Artificial Intelligence generated works. The major question which is raised in regard to the work produced by Artificial Intelligence is who is the author of such work?  Currently, the ownership of the work lies with a natural or a juristic person. This is to ensure that legal proceedings can be initiated against them, if the case requires.


Who owns the work created through artificial intelligence

A similar situation relating to Artificial Intelligence arose in USA in August 2019. The copyright office of United States rejected the application of Dr. Stephen Thaler for the work that was created autonomously by computer algorithm known as Creativity Machine. Dr. Stephen claimed that the Creativity Machine is the author of the work and he is the owner of the work. The copyright was rejected as the work lacked human authorship which is one of the prerequisites to get copyright. Being aggrieved by the decision of the office Dr. Stephen filed a first request to reconsider the application. The board upheld the decision of the copyright office and thus, Dr. Stephen filed a second request in May 2020.


The debate

The following arguments were raised by Dr. Stephen in his second request:


  1. If Juristic Persons such as companies are allowed to be author of copyright under work for hire doctrine, then copyright should also be allowed for Artificial Intelligence generated work.
  2. There is no binding precedent which prohibits the granting of copyright to Artificial Intelligence generated work.
  3. Refusal to the work generated by Artificial Intelligence will have grave polices ramifications where people might start acting dishonestly and apply for copyright over work in which they have no creative input.


The board rejected the first contention of Dr. Stephen and held that to claim copyright over a work in US the work must be a product of human ingenuity. The board also drew a distinction between the work made for hire and the case of Dr. Stephen. The board mentioned that there needs to be a legally binding contract between the parties in work for hire agreement. As the companies are competent to enter into the contract copyright can be provided to such entities. On the other hand, since Creativity Machine cannot enter into contractual relations, no copyright can be granted to it. The board while rejecting the second argument of Dr. Stephen quoted the Compendium of US Copyright Office Practices, 2021 that the work without any creative input or without human intervention i.e., produced by a machine or by mere mechanical process are not protected by copyright. The board also rejected the last contention of Dr. Stephen by stating that there are many mechanisms to penalize the applicant who makes false representation in their application.


Thus, the board rejected the second request of Dr. Stephen and denied copyright.


Indian Case Study

In India, in the case of Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd. [2], the Delhi High Court held that CBSE being an artificial person cannot claim copyright over the set of question papers until and unless it proves that the question papers were prepared by human intervention. Thus, only natural person can claim copyright in Indian law. This position was upheld in the case of Navigators Logistics Ltd. v. Kashif Qureshi & Ors. [3], where copyright was claimed over a list prepared by the computer itself. The copyright was again rejected on the ground of lack of human intervention. Thus, the situation of India is same as the situation of USA and hence, authorship cannot be solely claimed by Artificial Intelligence.

However, the situation is different in China. In the case of Shenzhen Tencent Computer System Co. Ltd. v. Shanghai Yingxun Technology Co. Ltd. [4], the Artificial Intelligence system created financial report for Tencent’s website This report was also published at Yingxun’s website and it led to an infringement case. The question that came before the court for consideration was where there was copyright in the financial report at all. The court held that the report being an original work qualifies the basic requirements of being copyrightable.  Although the work was fully created by Artificial Intelligence still there was some human contribution. As per the court, the creators of the article have just used the AI software to represent their choice or arrangements 



Thus, it can be concluded by saying that copyright law has been largely shaped by international norms and treaties that have been ratified and implemented by the member countries. These international standards provide much-needed guidance to the member countries in formulating measures for the protection and regulation of copyright at local and international level. So, it is the need of the hour to take into reconsideration the Intellectual Property framework to ensure that the laws keep pace with the development.


Author: Abhinav Rana a student of  GGSIPU, currently doing internship at Khurana & Khurana, Advocates and IP Attorney, in case of any queries please contact/write back to us via email 

Khurana and Khurana, Advocates and IP Attorneys

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Khurana and Khurana, Advocates and IP Attorneys

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