I. INTRODUCTION
Artificial Intelligence (AI) is the buzzword for contemporary times. It has a multitude of functionalities. From completing assignments in college to creating movies it can produce extraordinary results thereby reducing the workload on humans. However, a major concern with such fast-paced growth of AI is in the domain of Intellectual Property Rights (IPR). A major enigma that is faced is if a particular product is created using AI can the person who gave the prompts in the AI software be regarded as the creator and granted copyright for its work? Recently, in January, a South Korean company received a copyright for its movie named ‘AI Suro’s Wife’ which was created by using AI[i].
II. KOREA GRANTS COPYRIGHT TO AI-GENERATED MOVIE
For a grant of copyright in Korea, the content should be “a creative production that expresses human thoughts and emotions.” Therefore, there are three qualifications which need to be fulfilled to receive copyright registration. First and foremost, the content must be original in nature and not a mere emulation of someone else’s content. Secondly, through a medium, the author must express his emotions and thoughts. A creative idea should come entirely from the human author. Thirdly, and lastly, the content that has been created should be a reflection of the thoughts and emotions of the author. If the content has been created using AI, one can possibly argue that human thoughts are immersed in AI by prompts that are fed into the system[ii]. The movie involved quite a lot of human elements such as selecting text, pictures, and voices, editing images through Photoshop, incorporating images into videos etc. Moreover, the prompts were given by a human in the first instance. Therefore, in the instant situation, the movie was granted copyright because the human involvement in each stage of its creation was able to showcase the thoughts and emotions of the creator.
III. DENIAL OF COPYRIGHT OF AI-GENERATED CONTENT IN OTHER JURISDICTIONS
It is interesting to note South Korea’s approach at a time when there is a current trend of not granting copyrights of content that is made using AI primarily due to the concern of originality.
For example, in the USA there are a plethora of copyright claims even when the content was made by application of AI software. District Judge Beryl A. Howell has highlighted that there are new boundaries that are being explored in areas of copyright. The USA regards ‘human authorship’ as a centrepiece of copyright registration[iii]. In the case of Feist Publications v Rural Telephone Service Company[iv], it was categorically stated that the law on copyright shield the ‘fruits of intellectual labour’ and ‘are founded in the creative powers of the mind’. Moreover, the court in Stephen Thaler v. Shira Perlmutter[v] highlighted that the term author does not include non-humans under its ambit. Even countries like Spain and Germany require humans to be authors of content[vi]. Australia has also taken a similar stance that content with the intervention of machine learning software cannot be given copyright as is clear from the case of Acohs Pty Ltd v Ucorp Pty Ltd[vii]. When content is created by using AI, then the content is not considered to stem from the authorship of the human. An application for copyright of an artwork produced by an AI system was made and was subsequently rejected in the USA. Most countries lack the legislative framework for navigating the content formulated by machine-learning systems[viii]. Even South Korea announced that if the content is devoid of ‘creative intervention’ then it will not receive copyright registration. The content should display a significant display of human thoughts for it to receive a copyright[ix].
Previously, when the technology had not reached the level of sophistication it has reached today, using a computer system for generating content was not a problem. This is because the computer system merely acted as an instrument of creation. However, in contemporary times, the system itself determines different layers of creative ideas. If content generated through machine learning systems is not recognized, then it would be a massive loss for the investors who have pooled their money for the development of the automated system. There are a couple of ways to deal with this. Either registration of the copyright can be denied by a jurisdiction, or it can be given to the person who is the creator of the automated system[x].
IV. Should Copyright be Granted in Favour of Author Using AI
An argument can be made in favour of granting copyright registration to the author where the content was generated through machine learning. It is the same as any work that is generated through using Microsoft Word. If a book chapter is drafted using Microsoft Word, then the copyright is granted to the author of the chapter and not to the producer of Microsoft Word. However, a distinction needs to be pointed out between tools such as Word and machine learning software. In Word, an author has to apply his creative mind to generate content like a book chapter. However, in cases of AI technology merely commanding the software by press of a button can be sufficient to manufacture a book chapter by generating text from a multitude of sources[xi]. If the content that is generated by AI is granted copyright, then it would be tantamount to giving copyright to a person without any intellectual or creative labour of himself. Software such as ChatGPT can analyse vast amounts of data including some content which are registered as copyright content and use it to build an algorithm. Such an algorithm creates a replica of some copyrighted content. Therefore, the dividing line of distinction between AI-generated work and original work has become obscure. Even in the case of Infopaq International A/S v Danske Dagblades Forening, it has been categorically stated that for a work to be original it should mirror the intellectual creation of the author[xii]. Whether the prompts fed into the AI system are worth artistic prowess or not is something which can be further explored. In some cases, like Nova Productions v Mazooma Games[xiii] the court refused the copyright of a gamer for a computer game because it did not regard the player’s prompt to be ‘artistic in nature’. Moreover, the court stated that a player does not enrich any ‘skill or labour of an artistic kind’. There are legal complexities that are quite strenuous to handle because of the exceptional ability of AI software to mimic content relying on algorithms that are developed using copyrighted sources[xiv]. Another vantage point of discussion is that the AI software merely analyses the Big Data which has been fed into the system to produce an end result which is a mere modification of an already copyrighted original content. Therefore, the content that is been produced by AI is not original at its core[xv].
V. Indian Legislation on Copyright of AI-generated Content
Even in India, Section 13 of the Copyright Act, of 1957 stipulates that copyright is present in "original literary, dramatic, musical, and artistic works." However, the phrase ‘originality’ is not described in the entire act. Therefore, it is at the discretion of the Indian courts to determine if a particular piece of work is original or not[xvi]. To determine if a piece of work is original or not the courts should look at the kinds of prompts that have led to the creation of the work. If there is substantial human involvement in each stage of creation and production then the author can be granted a copyright based on the fact that the prompts that were fed into the system were the original work of the author and AI software was merely used as a means to creation. However, it is going to be exceptionally hard to determine the amount of work that has been created by a human or by the software. For example, if a blog is entirely written by a system like ChatGPT then it cannot be granted copyright. However, if a blog completely written by a human is fed into the ChatGPT for merely paraphrasing then it can be regarded as an expression of the intellectual creation of a human.
VI. Conclusion
Following a blanket approach where all content generated by AI is refused, copyright may not be the right approach. A more nuanced case-by-case analysis can be better suited to the changing times when the usage of AI is on the rise exponentially across sectors. Another approach is that the author is mandated to disclose the usage of AI in his work. India needs to frame laws to cater to such a situation[xvii]. Sophisticated systems which have the potential to check the usage of AI in a piece need to be developed. Such AI detectors can aid in determining if the content has been entirely made by AI or has received substantial prompts from the author in every stage of ideation and creation. However, this is going to be a tough road to tread. India has no legislation that caters to the copyright of AI-generated content. India needs to develop clear and concise laws to tackle this situation and keep pace with the changing technological revolution in AI which is taking the world by storm.
[i] South Korea grants copyright to AI-generated work, ‘AI Suro’s Wife’ film as work edited by humans, (January 8, 2024), https://chatgptiseatingtheworld.com/2024/01/08/south-korea-grants-copyright-to-ai-generated-work-ai-suros-wife-film-as-work-edited-by-humans/
[ii] Copyright and AI – the Korean View, Dentons, (April 11, 2022), https://www.dentons.com/en/insights/articles/2022/april/11/copyright-and-ai-the-korean-view
[iii] Park Hans-Sol, Navigating copyrights and authorship in the age of generative AI, The Korea Times, (November 11, 2023), https://www.koreatimes.co.kr/www/culture/2024/03/135_362478.html
[iv] Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991)
[v] Stephen Thaler v. Shira Perlmutter et al., No. 22-1564 (BAH) (D.D.C. Aug. 18, 2023)
[vi] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine, (October 2017), https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html
[vii] Acohs Pty Ltd v Ucorp Pty Ltd [2012] FCAFC 16 (2 March 2012)
[viii] Supra note 3
[ix] Govt to exclude AI-generated content from copyright protection in South Korea, India Blooms, (December 27, 2023), https://www.indiablooms.com/world-details/F/41357/govt-to-exclude-ai-generated-content-from-copyright-protection-in-south-korea.html
[x] Supra note 6
[xi] Id
[xii] Neha Raj and Mehda Banta, Legal Implications Of AI-Created Works In India, Mondaq, (July 28, 2023) https://www.mondaq.com/india/copyright/1348418/legal-implications-of-ai-created-works-in-india
[xiii] Nova Productions v Mazooma Games [2007] EWCA Civ 219
[xiv] Supra Note 12
[xv] Rommel Khan, AI Works – The Future Of Intellectual Property Law, Mondaq, (February 20 2023), https://www.mondaq.com/india/copyright/1284668/ai-works--the-future-of-intellectual-property-law
[xvi] Srishti Ojha, ChatGPT, AI content: All about legal challenges pertaining to copyright under Indian law, Business Today, (September 22, 2023), https://www.businesstoday.in/technology/news/story/chatgpt-ai-content-all-about-legal-challenges-pertaining-to-copyright-under-indian-law-399393-2023-09-22
[xvii] Arul George Scaria, AI and the issue of human-centricity in copyright law, The Hindu, (November 02, 2023), https://www.thehindu.com/opinion/op-ed/ai-and-the-issue-of-human-centricity-in-copyright-law/article67485772.ece