Have you heard of "The Next Rembrandt", an AI-generated painting that brought the legendary Dutch painter back to life? Have you heard of "The Next Rembrandt", an AI-generated painting that brought the legendary Dutch painter back to life? Or "Heart on my sleeve", an AI-generated song that went viral, racking up 15 million views on TikTok and hundreds of thousands of views each on Spotify and YouTube?
With the ability to create like a human, Generative Artificial Intelligence ("AI") tools have recently grabbed the headlines across all industries. While AI tools have proved to be a game changer in responding to the simplest prompts with a variety of innovative and human-like content, the legal landscape surrounding copyright ownership in AI-generated works is murky with several pertinent questions left unanswered. A few such legal questions are whether AI-generated works qualify for copyright protection, and if yes, who will own the copyright in such works. This article is an attempt to untangle the intricacies of copyright protection in AI-generated works from our perspective based on the existing copyright laws.
1. Testing the AI-generated works under the Indian Copyright Law Framework
The protection of intellectual property rights in creative works is governed by the Copyright Act,1957 (the "Act") in India. This Act protects the original literary, dramatic, musical and artistic works.1 It is now crucial to test AI-generated works against the criteria of copyrightability under the Act.
(i) Does AI-generated work meet the criteria of "originality" under the Act?
Generative AI tools like ChatGPT, Gemini and Copilot are built on machine learning technologies and trained on diverse patterns and a myriad of data sets including text from books, articles, websites, and other publicly available sources.2 They use advanced algorithms to build responses by deriving content from pre-existing data and material and hence may include unoriginal works. While ChatGPT's Terms of Use are silent on the aspect of originality in its content, Copilot admits that output generated by it may be very similar to existing internet content at times.3 Gemini, in its FAQs, states that it is "intended" to generate original content and if it replicates any existing content, it cites the source of such content.4
While "originality" is the primary yardstick under the Act, the degree of creativity required in a work to be called as sufficiently original is not defined in the Act and is left to interpretation by courts. In Eastern Book Company vs. D.B. Modak5, the Supreme Court of India relied on the US doctrine of "modicum of creativity" and enunciated the notion of "flavour of minimum requirement of creativity" and held that "there must be some substantive variation and not merely a trivial variation" for copyright to be granted.
The question now is whether AI tools possess "modicum of creativity" in their output. While generative AI applications use information derived from pre-existing sources, the resulting output may not mirror, re-elaborate or re-arrange the pre-existing works. Hence, if such output exhibits discernible intellectual effort and creativity and is sufficiently distinct from pre-existing works, it may be argued that it displays "modicum of creativity" required for a copyright grant.
(ii) Can AI be recognized as an "author" under the Act?
The definition of "author" under Section 2(d)(vi) of the Act recognizes the "person" "who causes the computer-generated work to be created" as the author of such work. Assuming that "person" means a natural person6, it implies that the authorship cannot be attributed to AI per se.
Next, whether such natural person under Section 2(d)(vi) is the developer of the computer program or the user who inputs commands into such computer program? AI applications like ChatGPT and Copilot do not claim ownership on the output generated by them. As per ChatGPT's Terms of Use, the user will have ownership rights in its input as well as output generated.7 For instance, if a screenwriter creates a script using a Microsoft application, that screenwriter owns the copyright in such script, not Microsoft. Can we look at AI-generated works through the same lens? No, because Microsoft merely provides a platform and it's the screenwriter who uses its intelligence, creativity and efforts to create the script. Conversely, in the case of generative AI applications, AI can create the entire work in response to a brief command by its user. A pertinent question now is whether a user who merely inputs a one-liner prompt can be deemed to have caused the output to be created in terms of Section 2(d)(vi) when in fact, it's the human developer who trained and brought the AI application into action using its intellectual creativity.
Interestingly, both ChatGPT and Copilot state that "output may not be unique for each user"8 and they might respond with same or substantially similar content to similar prompts from multiple users.9 This may consequently lead to multiple users claiming rights in the same content making it non-copyrightable.10
Now, let us see if copyright has ever been granted to an AI-authored work. Notably, RAGHAV, an AI-based painting tool, was granted copyright registration as a co-author alongside its owner, Ankit Sahni, by the Indian Copyright Office for the work titled "Suryast" but was subsequently issued a withdrawal notice seeking clarification on the legal status of RAGHAV, being an AI, to qualify as an "artist" under the Act. Despite the withdrawal notice, RAGHAV continues to be registered as a co-author in the records of the Indian Copyright Office.11 This case emphasizes the divergence in global perspectives on copyright protection. While certain jurisdictions, like Canada, recognize AI as co-author for copyright registration, the US remained firm on its stance of not extending copyright protection to AI-generated works.
2. Global Perspective
(i) USA
The USA has maintained the stance that only human-authored works are eligible for copyright protection.12 Recently, the US Copyright Office stated that, for a work containing AI-generated material to claim copyright protection, it must contain sufficient human authorship i.e. there must be a re-arrangement or modification of AI-generated material in a sufficiently creative way that the resulting work as a whole constitutes an original work of authorship.13 For eg. editing AI-generated content by adding your thoughts and creativity. In these cases, copyright will only protect the human-authored aspects of the work, which are "independent of" and do "not affect" the copyright status of the AI-generated material itself implying that a user will not own the copyright in the AI-generated output solely based on the fact that they provided the prompt.14
(ii) United Kingdom
UK's copyright law defines computer-generated work as one "generated by computer in circumstances such that there is no human author of the work."15 It states that "in the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken."16 Again, there's room for multiple interpretations i.e. would this "person" be the AI tool's developer or its user?
(iii) European Union
Neither EU copyright law nor the new EU AI Act directly addresses the foundational requirements of 'authorship' in AI-generated works. In Infopaq International A/S v Danske Dagbaldes Forening17, the CJEU held that copyright only subsists in original works that reflect "author's own intellectual creation" and indicate the personality and creative choices of such author. This has been widely interpreted to emphasize human authorship as a cornerstone of copyright protection under EU law. However, it is left to the discretion of individual EU member states to determine whether AI-generated works meet the criteria of copyrightability.
3. Findings and potential Copyright grant Options
(i) Who will own the Copyright in 'Input'?
The user of an AI tool may be granted copyright in the 'input' or 'prompt' if such input/prompt meets the criteria of copyrightability. A basic question or command like "recipe for cheesecake" may not qualify for copyright ownership. While some prompts may be sufficiently creative to be copyrighted, output generated from a copyrightable prompt is not necessarily copyrightable and such output has to separately undergo the test of originality and creativity.
(ii) Who will own the Copyright in 'Output'?
The test to determine who has exercised ultimate creative control on the output may help answer this question. While it is true that the human developer deserves credit for enabling the operation of the AI tool and thus may own the AI tool, it may not be fair to attribute authorship of all outputs generated through such AI tool to the developer as the developer cannot be deemed to have exercised sufficient creative control on each output generated. Superficially, it may be said that the answer lies in the terms of service of the particular generative AI application. However, it would also depend on the enforceability of such terms under applicable jurisdiction. Hence, the most sensible approach to determine this would be to examine user action on a case-by-case basis rather than broadly generalizing a rule. If the output generated is substantially a result of the user's intellectual creativity exercised through prompt, such user may be granted copyright in such output provided such output meets the threshold of originality. For eg. if a user inputs a self-made original piece of writing into the AI tool merely to refine the content in terms of style and structure or uses iterative prompting to influence the AI-generated outcome in a certain way, such user may be deemed to be the 'author' of such AI-generated content.
Footnotes
1. Section 13 of the Indian Copyright Act, 1957.
3. Id.
4. https://gemini.google.com/faq.
5. 1 SCC 1; 2002 PTC 641.
6. Indian courts have reiterated in multiple judgements including in Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd. [1994 (28) DRJ 286]; Navigators Logistics Ltd. v. Kashif Qureshi & Ors [254 (2018) DLT 307]; and Tech Plus Media Private Ltd. v. Jyoti Janda [(2014) 60 PTC 121] that only a human can claim authorship under the Act.
7. OpenAI Terms of Use (access at https://openai.com/policies/terms-of-use).
8. Id.
10. The Merger doctrine originating from the US, also recognized in India (Syndicate of The Press for the University of Cambridge v. B.D. Bhandari and Anr., (2011)), applies to situations when there is only one or a limited number of ways to express an idea. The idea and its expression are said to "merge" in such situations and therefore such expression cannot be copyrighted to prevent such idea from getting monopolized. Another doctrine that originated from US copyright law known as Scène à faire (necessary scene) doctrine refers to elements commonly found in a particular genre or type of creative work. Those elements are considered indispensable for conveying certain ideas and are therefore not copyrightable.
11. Work Title "Suryast", ROC No. A-135120/2020, ROC Date 02 Nov 2020, Diary No. 13646/2020-CO/A.
12. US District Court in Thaler v. Perlmutter, Case No. 1:22-cv-01564-BAH.
13. In March 2023, the US Copyright Office issued a statement of policy on registration of AI-generated works, Doc No. 2023-05321, 88 FR 16190, Please see: https://www.federalregister.gov/d/2023-05321/p-52.
14. Id.
15. Section 178 of the Copyright, Designs and Patents Act 1988.
16. Section 9(3) of the Copyright, Designs and Patents Act 1988.
17. C-5/08, EU: C:2009:465.
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