One of the key components of intellectual property rights is Copyright. It is a legal right granted to creators of literary and artistic work. It gives them exclusive rights over their original work to use or/and distribute it. Satisfaction of two criteria is required for the extension of such a right namely, originality and tangibility. It becomes pertinent to talk about AI in relation to copyright as the former has massive applicability in the field of literary work and art in today’s technologically growing world.[1]
A couple of judgements analysed this correlation, the same could help gain some clarity on the subject for the purposes of this paper.
In Burrow Gilles Lithographic Co. v. Sarony[2], the court addressed the issue of extending copyright protection to works produced by a machine. It stated that a dichotomy exists between mechanical and creative labour. It further held that products made by a machine are not creative per se, thereby narrowing the scope of its application in a strict manner. Further, in Bleistein v. Donaldson Lithographing Co.[3], Justice Holmes clarified that works created by the unique mind of a human is a necessary criteria which needs to be fulfilled in order to gain copyright protection.
It was further held that human creativity is ‘something irreducible, which is one man’s alone’, therefore, immense focus was placed on the creative minds of humans.[4] A similar stance was taken by the United States Copyright Office, when interpreting “authorship” in 2016. It was stated that copyright protection can only be granted for “the fruits of intellectual labour” that are “founded in the creative powers of the mind”.[5] It was said that a random or automatic produce of a machine would not fall within the purview of copyright protected work.[6] Such strict application as shown in the aforementioned cases restricts the incorporation of machine made products within the ambit of copyright protected work.
However, in Alfred Bell & Co. v. Catalda Fine Arts, Inc.[7], the court took a more lenient approach. It stated that an original work under copyright law would encompass works which aren’t copied from other literary and artistic produces of similar character. It went on to upheld that accidental or unintentional variation of a copyright protected work could still be protected. This worked in the favour of people who advocated for AI created work to have copyrights granted to them since these works are created through algorithms and programming.[8]
Some critics have argued that copyright protected work needs a creative and a unique mind which is possessed by humans. The element of unpredictability exists in such work of art while, Mechanically produced work is simply rule bound. It lacks such unpredictability owing to its inherent nature.[9] Yet, the same has been countered by another group of critics who claim that human creators of literary work also deduce their work from ideas and data which is pre-existing.[10] Their contention is similar to Chuck Palahniuk’s quote that “Everything is a copy of a copy of a copy.” Moreover, this group relies on judgements like Cummins v. Bond[11], wherein, the court claimed that non-human nature of the creator should not be a barrier when registering works under the copyright law. According to the critics, a similar practise can be followed in AI created work.
However, even if IP protection under copyright is granted to AI created products, the confusion regarding legal personhood still remains. So far, copyright can only be granted to legal persons, something the AI machine isn’t.[12]Therefore, the question arises whether such a grant should be done in the favour of the human who owns the AI. But then a loophole exists i.e., if AI created work is seen as a purchase, the question would be whether such rights are to be extended in favour of the buyer or the creator.
In New Zealand and England, by creating a legal fiction, courts have granted such copyright protection of AI created work in favour of the creator. This expands the ambit of copyright laws.[13] However, even after such practises, questions regarding criminal liability exist. If a situation of infringement arises, the creator namely, the AI must be held liable. However, under criminal law, a person committing the crime must have actus reas as well as mens rea. Here, the AI machine would lack such things thereby, making it innocent under the law.[14]
Moreover, the argument arises that at this stage AI lacks cognitive abilities, therefore, such an acknowledgement would hold no relevance to it. Further, IP protection is provided as an incentive to human creators, AI’s do not need such incentive. Furthermore, monetising AI’s creativity by the human owner would make more sense as this could be an incentive for them.[15]
Conclusion and way forward
It can be safely concluded that with the advent Artificial Intelligence systems and its application, it implications on the pre-existing Intellectual Property Rights would keep expanding. Therefore, recognition needs to be provided to its processes and creations. In today’s anthropocentric world, we cannot submit to technology completely. Yet, literary work, art etc. created by the AI needs to be protected too. Therefore, the only way would be to have a collaborative form of liability for the human as well as the AI machine or software. This way the human owner can take down the software or algorithm that has infringed upon another person’s rights. Having partial rights under IP laws would provide the humans with the incentive to help the AI system function efficiently. Moreover, a regulatory mechanism could be enacted so as to govern the activities of AI through acts and laws.
[1] Tripathi, Swapnil, and Chandni Ghatak. “Artificial Intelligence and Intellectual Property Law.” Christ University Law Journal, 2018.
[2] Burrow Gilles Lithographic Co. v Sarony, 111 U.S. 53,1884.
[3] Bleistein v Donaldson Lithographing Co., 188 U.S. 239, 1903.
[4] Bleistein v Donaldson Lithographing Co., 188 U.S. 239, 1903.
[5] Dickenson, Julia, et al. “Creative Machines: Ownership of Copyright in Content Created by Artificial Intelligence Applications.” European Intellect. Prop. R. 39(8), 2017.
[6] Lazaro, Lynn. “Artificial Intelligence in the World of IP – Intellectual Property – India.” Welcome to Mondaq, Kochhar & Co., 10 Feb. 2020, https://www.mondaq.com/india/patent/892134/artificial-intelligence-in-the-world-of-ip.
[7] Alfred Bell & Co. v Catalda Fine Arts, Inc.,191 F.2d 99, 1951.
[8] Tripathi, Harsh Pati. “Impact of Artificial Intelligence (AI) on Trademark Law …” Centre for Intellectual Property Rights Research and Advocacy National Law School of India University, Bangalore, 2021, https://iprlawindia.org/wp-content/uploads/2021/04/Harsh-Pati-Tripathi.pdf.
[9] Tripathi, Harsh Pati. “Impact of Artificial Intelligence (AI) on Trademark Law …” Centre for Intellectual Property Rights Research and Advocacy National Law School of India University, Bangalore, 2021, https://iprlawindia.org/wp-content/uploads/2021/04/Harsh-Pati-Tripathi.pdf.
[10] Ames, Charles. “Artificial Intelligence and Music Composition, THE AGE OF INTELLIGENT MACHINES.” 1991.
[11] Cummins v Bond, 1 Ch. 167, 1927.
[12] Boyle, James. “Endowed by Their Creator? The Future of Constitutional Personhood.” The Brooklyn Institution Future of the Constitution Series, 1992, http://www.brookings.edu/papers/2011/0309_personhood_boyle.aspx.
[13] Copyright, Designs and Patents Act, S 178, 1988 (UK);Copyright Act, S 2, 1994 (New Zealand).
[14] Tripathi, Harsh Pati. “Impact of Artificial Intelligence (AI) on Trademark Law …” Centre for Intellectual Property Rights Research and Advocacy National Law School of India University, Bangalore, 2021, https://iprlawindia.org/wp-content/uploads/2021/04/Harsh-Pati-Tripathi.pdf.
[15] Lazaro, Lynn. “Artificial Intelligence in the World of IP – Intellectual Property – India.” Welcome to Mondaq, Kochhar & Co., 10 Feb. 2020, https://www.mondaq.com/india/patent/892134/artificial-intelligence-in-the-world-of-ip.
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