India’s AI Copyright Quagmire

The rapid advancement of Artificial Intelligence (“AI”) has sparked a revolution across various sectors, but it has also given rise to complex legal challenges, particularly in the realm of Intellectual Property Rights (“IPR”). As a law practitioner in India, I find the intersection of AI and copyright law to be one of the most fascinating and contentious areas of contemporary legal discourse.

In India, the Copyright Act, 1957 (“the Act”) serves as the primary framework for copyright protection. However, this legislation, enacted in a pre-digital era, is now confronted with novel challenges posed by AI. A pivotal question has emerged regarding the copyright protection of AI-generated works, specifically whether such works are eligible for copyright and, if so, who holds the ownership rights to these creations?[1] Since the Act could not have contemplated the emergence of AI generated content, the increasing use of AI in recent times has created ambiguity regarding authorship, ownership and infringement.

Originality and AI

Under the Act, protection is granted to ‘original literary, dramatic, musical and artistic works’ that are the product of human intellectual labour.[2] The notion of originality in Copyright law is rooted in human creativity and consciousness. However, with AI-generated works, the absence of human thought and intention raises a pivotal question: Can these works be considered legally "original" and eligible for copyright protection?

The Hon’ble High Court of Delhi in its decision of ‘Tech Plus Media Private Ltd v. Jyoti Janda’ reported in 2014 SCC OnLine Del 1819 emphasized that copyright protection extends only to the expression of ideas, not to ideas themselves.[3] The application of this principle to AI-generated works is complicated by the fact that the programmer's contribution (the underlying idea) and the AI's generative process (the expression) cannot be separated or distinguished leading to circumspection about the ownership and originality of the resultant work.

Authorship

Section 17 of the Act embodies a human-centric perspective, limiting authorship to individuals, and implicitly excluding artificial intelligence or other non-human entities from claiming copyright or being recognized as authors. Although companies can acquire copyright through agreements with individuals (Section 18), the Act's core structure prioritizes human creativity and ownership. The default rule in Section 17 also ensures that the original human creator retains the initial copyright, unless a contract dictates otherwise.

The emergence of AI-generated creative works raises questions about authorship, as it is unclear who should be considered the author - the programmer who created the AI, the user who interacted with it, the AI system itself, or the company that owns the AI.

The landmark ruling of the US Supreme Court in the case of Burrow-Giles Lithographic Co. v. Sarony[4] has had a significant impact on Indian copyright law and intellectual property law in general. This case went on to establish that photographs could be copyrighted because they involved creative choices by the photographer. Similarly, by extension, one could argue that AI-generated works involve creative choices and decisions in programming and data selection, potentially justifying copyright protection.

Duration of Protection

The duration of copyright protection presents an additional layer of complexity in the context of AI-generated works. Indian copyright law typically grants protection for 60 years following the author's death, but this provision is rendered obsolete when applied to an AI system, which is essentially immortal. As a result, a novel approach is required to determine the appropriate duration of copyright protection for works created by AI.

Copyright Infringement

AI's reliance on vast datasets, potentially including copyrighted materials, raises complex questions about copyright infringement and fair use. This challenges the existing fair dealing provisions in the Act i.e., Section 52, necessitating a reexamination of these rules to ensure they effectively address the novel implications of AI's data-driven processes.

The way forward

In the Indian context, the burgeoning integration of AI in creative processes has precipitated a paradigmatic shift in the copyright landscape. As AI assumes a more pivotal role in generating literary, dramatic, musical, and artistic works, the need for a clarificatory framework becomes increasingly pressing. Recently, a press release issued by the Ministry of Commerce and Industry clarified that there is no requirement to create a separate category of rights for AI and related innovations in the Indian IPR Regime and further that the current legal framework under the Patent and Copyright Act is well-equipped to protect AI generated works and related innovations.[5] It was also clarified that there is no proposal to create any separate rights or amend the law in the context of AI-generated content. However as indicated above, the increasing use of AI has created ambiguity regarding authorship, ownership and infringement under the existing copyright framework.

Consequently, the mandate falls upon the judiciary to undertake purposive interpretations of the established legal framework to navigate through the uncharted terrain to establish clear guidelines on AI's role in copyright creation, ownership, and protection, ensuring a balance between incentivizing innovation and safeguarding creative rights. A nuanced understanding of AI's capabilities and limitations will be crucial in shaping an Indian copyright regime that fosters creativity, innovation.

[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3369200

[2] Section 13, The Copyright Act, 1957

[3] Tech Plus Media Private Ltd v. Jyoti Janda, 2014 SCC OnLine Del 1819

[4] Burrow-Giles Lithographic Company v.?Sarony, 111 U.S. 53 (1884)

[5] Ministry of Commerce & Industry- Press Release ID: 2004715, Existing IPR regime well-equipped to protect AI generated works, no need to create separate category of rights posted on 09.02.2014 by PIB Delhi

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