This article has been written by Sheetal pursuing a Diploma in US Intellectual Property Law and Paralegal Studies from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

We are living in an era of a tech driven world. In this tech-driven world, artificial intelligence plays a vital role.

Nowadays, AI is not just a tool or computer programme that is dependent on human commands and intervention. It has been revolutionised in such a manner that it can make an independent and creative decision without any human intervention. This dynamic and revolutionary version of AI is now used in  various fields. Creators have started using AI to produce and generate excellent and unique work in the entertainment field like movies, music, paintings, journalism, gaming, etc. By using this revolutionised version of AI technology, creators have started exploiting the same.

Now the question is raised: is the work protected by AI?

Any literary or artistic work, like music, paintings, movies, etc., created by the owner is protected under the Copyright Act. But the main thing is that protection from infringement is only provided to humans. The Act is completely silent about protecting against infringement by   intelligence, robots, or any work created without human interference.

Considering the above-mentioned scenario, the question arises, does the Copyright Act protect the works generated by AI? If yes, then who owns the authorship of the work generated by AI? And what issues will give birth to new challenges?

The intersection of AI and copyright law

The intersection of AI and copyright law presents a complex situation, raising various legal and ethical considerations. The intersection of AI-generated work and copyright law poses several challenges.

Use of copyrighted material in AI training

Various AI systems often require large amounts of data to train their algorithms effectively. This data is the fuel for AI systems, without which the system cannot work efficiently.

This used data includes copyrighted material such as images, texts, and music, which may raise copyright infringement concerns.

AI technologies can be used to replicate existing copyrighted works. The algorithms can analyse and generate content that closely resembles protected works, which can raise questions about the legality and ethical implications of such replication.

In the realm of intellectual property, the interplay between artificial intelligence (AI) and copyright protection has sparked a complex and multifaceted debate. As AI technology rapidly advances, it raises profound questions about the nature of authorship, originality, and the boundaries of copyright law. This critical analysis delves into the nuances of this evolving relationship, examining the challenges and opportunities presented by AI in the context of copyright protection.

1. AI as a creative force:
   • Emergence of AI-generated works is blurring the lines between human and machine creativity.
   • Legal implications of AI’s ability to create original works and hold copyrights.
   • Ethical considerations regarding the recognition of AI as an author.
2. Authorship and originality:
   • Challenges in determining authorship when AI contributes significantly to a work’s creation.
   • Assessment of originality in AI-generated content, considering the lack of human intervention.
   • Implications for traditional notions of individual creativity and the human touch.
3. Copyright ownership and attribution:
   • There are complexities in assigning copyright ownership when multiple entities (AI, programmers, and users) are involved.
   • Attribution issues and the need for transparency in identifying the contributions of AI to a work.
   • Legal frameworks for addressing copyright ownership and attribution disputes.
4. Fair use and transformative works:
   • Application of fair use principles to AI-generated content, considering its potential transformative nature.
   • Balancing the rights of copyright holders with the need for innovation and reuse of AI-generated works.
   • Case studies and legal precedents related to fair use and AI.
5. Data rights and training datasets:
   • Copyright implications of using copyrighted works as training data for AI models.
   • There are ethical concerns surrounding the unauthorised use of copyrighted material in AI training.
   • Legal frameworks for protecting data rights and regulating the use of copyrighted works in AI training.
6. AI-assisted copyright enforcement:
   • Potential benefits of using AI technology to identify and enforce copyright infringements.
   • There are concerns regarding the accuracy and fairness of AI-powered copyright enforcement systems.
   • Legal and ethical implications of automated copyright enforcement.
7. International perspectives and legal developments:
   • Comparison of copyright laws and regulations governing AI in different jurisdictions.
   • Ongoing legislative efforts and international discussions on AI and copyright protection.
   • Harmonisation of international laws to address the cross-border implications of AI-generated content.
8. Future trends and policy considerations:
   • Anticipated developments in AI technology and their impact on copyright protection.
   • Policy recommendations for lawmakers and policymakers to strike a balance between innovation and the protection of creative works.
   • Ethical guidelines and best practices for the responsible use of AI in the creative industries.

This critical analysis highlights the multifaceted nature of the relationship between AI and copyright protection, presenting a comprehensive overview of the challenges and opportunities it poses. As AI technology continues to evolve, legal frameworks, ethical considerations, and policy discussions will play a crucial role in shaping the future of copyright law in the digital age.

Impact of AI on copyright laws

Generative AI – authorship and ownership issue

Defining authorship and ownership of AI-generated work is a very challenging and complex situation. In India and US jurisdiction, copyright is granted to human creators, But the question remains unanswered about the AI-generated work. Who should be considered the author?

Originality and creativity

Copyright protection requires originality and creativity, concepts usually associated with human intellectual activity. The algorithms of AI can autonomously create content without human intervention. AI-generated content challenges these notions.

AI in content creation and curation

Automated Content Creation: AI tools are progressively used for content creation, from art and music to articles and software.  In this creative process, the machines play the main role.  This raises questions about the role of copyright.

Content filtering and copyright enforcement

On various online platforms, AI is utilised for content filtering and copyright enforcement. The issues arise regarding the accuracy of automated systems in identifying copyright infringement, potentially leading to the suppression of legitimate content.

Data training and copyrighted material

Training AI Models: AI models frequently require vast amounts of data in their training methods. If, in the said process, copyrighted material is used without proper authorization, it could possibly lead to copyright infringement claims.

Impact of copyright law on AI

Access to data: fair use and data access

AI models benefit from access to diverse datasets. Copyright law’s fair use doctrine and limitations on data access may impact the ability to train AI models effectively.

Algorithmic transparency: Fair use and reverse engineering

AI systems, particularly those involving machine learning algorithms, may raise issues related to reverse engineering and algorithmic transparency. Copyright law’s fair use doctrine could be invoked to justify reverse engineering for purposes like interoperability and transparency.

Collaboration and licensing: licencing agreements

The development and deployment of AI often involve collaborations between entities. Licencing agreements become crucial to defining the scope of use, ownership, and compensation for AI-generated content.

Digital rights management (DRM): technological protection measures

Copyright owners may use technological protection measures (DRM) to control access to their works. The interaction between AI and DRM raises questions about the balance between protecting copyright and ensuring reasonable access for AI development.

Civic Chandran vs. C. Ammini Amma (1996)

The Hon’ble High Court of Kerala has held that fair dealing in terms of infringement of the copyrights of the work must be decided on the following factors. It is held that Hon’ble Courts may allow/permit only extracts or quotations from the work as ‘fair dealing’ in accordance with Section 52 of the Copyright Act, 1957, like the four-factor test of the US fair use doctrine mentioned below-

• The nature of copyrighted work.
• The amount and substantiality of the portion used in comparison to the entire copyrighted work.
• The impact of the use on the potential market or value of the copyrighted work. The likelihood of competition between the two works.
• The purpose for which it is taken, whether it is commercial or non-profit educational purposes.

Evolving legal framework

Regulatory adaptation

Updating Legislation: As AI technology continues to advance, there may be a need for lawmakers to adapt copyright laws to address emerging challenges and ensure a fair balance between protecting creators’ rights and promoting innovation.

Ethical considerations

Bias and Discrimination: AI systems may unintentionally perpetuate biases present in training data, leading to potential ethical concerns. Copyright law may need to consider the ethical implications of AI-generated content.

International cooperation

Global standards

Considering the global nature of AI and the internet, international cooperation is crucial in developing consistent standards and guidelines for copyright issues related to AI.

In summary, the interplay between AI and copyright law is a multifaceted and evolving area that requires ongoing legal and ethical considerations to strike a balance between fostering innovation and protecting the rights of creators and copyright owners. Legal frameworks need to adapt to the challenges posed by AI technology to ensure a fair and equitable system for all stakeholders.

If ownership is granted to the AI-generated works, what will be the issues arising out of the same?

If ownership rights are given to AI for the work generated by him and the work contains any illegal or defamatory content, it will be very challenging to hold the creator or owner liable.

Ownership

Copyright is mostly a right given to another for his original work. That work includes original artistic, literary, musical, and dramatic work. However, copyright also protects software or the coding of software as a literary work and AI (artificial intelligence) is part of the same. Although AI was created through programming, it is now quite capable and excellent at creating original works such as music, articles, lyrics, pictures and images.

Then the question is raised, will such works get copyright protection or not?

Accountability

The artwork that is created on a computer is mostly created by giving input by a coder or programmer, but nowadays artificial intelligence, machine learning software are developed in such a manner that they are able to create original work by themselves by giving data input and without any human interference. In the said process, if AI explores vast amounts of data that are accessible in the public domain, there is a high chance of infringement of copyright as the AI-generated work may contain some data from someone else’s work.

Navigating the complications of AI in copyright, accountability, and challenges ahead

United States: Navigating the delicate balance between copyright protection and fair use and its challenges

In this jurisdiction, original work is qualified only if it has a human author. In the United States, a clear precedent was set in cases like.

Naruto v. Slater, No. 16-15469 (2018), commonly referred to as the “monkey selfie” case.

In this case, a British photographer named Slater requested copyright registration for a photograph taken by a monkey, but the US Copyright Office denied the application, stating that the shot was taken without human intervention. This case indicates that if the US Copyright Office declines to protect works made by natural beings, it is not likely that they will cover works generated by artificial intelligence (AI).

In the United States, the Digital Millennium Copyright Act (DMCA) plays a vital role in addressing copyright issues. Recent cases highlight the challenges posed by AI in navigating the delicate balance between copyright protection and fair use.

Lenz vs. Universal Music Corp., (2015)

This is a case regarding a decision given by the United States Court of Appeals for the Ninth Circuit, holding that copyright owners must consider fair use defences and good faith activities by alleged copyright infringers before issuing takedown notices for content posted on the Internet.

The Lenz case stressed the importance of considering fair use before issuing takedown notices. AI-driven automated systems flagged a 29-second home video with Prince’s “Let’s Go Crazy.” The court ruled that copyright holders must consider fair use before sending takedown notices, indicating the need for human judgement in the process.

United Kingdom: The battle against piracy and AI-assisted infringements

The UK has been at the forefront of combating online piracy, and some of the cases reflect the challenges posed by AI-assisted copyright infringements.

Cartier International AG vs. British Sky Broadcasting Ltd (2016) 

This is not a copyright case, but the Cartier case focused on blocking websites selling counterfeit goods. In the said decision, the court highlighted the responsibility of internet service providers (ISPs) to take measures against infringing websites. As AI plays a role in website monitoring, the case emphasised on the need for effective AI tools in copyright enforcement.

The Cartier case stressed the role of AI in identifying and infringing on the intellectual property rights of websites. However, the questions of proportionality and the potential for collateral damage raise concerns about the broader implications of automated enforcement.

Indian court striking a balance between copyright and access to information by public

The Indian legal landscape is balancing the challenges posed by AI in copyright enforcement. The court emphasises a slight balance between copyright protection and the public’s right to access information.

Tips Industries Ltd vs. Wynk Music Ltd. (2018) 

In this case, the court raised the issue of whether AI-generated playlists could be considered copyright infringement. The SAAD judgement recognised the transformative nature of AI-generated work. 

This case stressed the need for nuanced approaches to AI-generated content, recognising the potential for transformative use, which may not always align with traditional copyright infringement standards.

Conclusion

As AI plays a vital role in human growth and development across various domains, we cannot go with “technological ostracism” and stop humans from enhancing productivity and innovation, improving  healthcare outcomes and addressing social challenges. However, it is very important and essential that human intelligence and artificial intelligence go hand in hand.

While applying strict law for the protection of human intelligence rights, certain things, like identifying the goals and objectives of human intelligence and artificial intelligence in  organisations and accessing current AI capabilities in areas of improvement, require change in the legislature and their policies. Strict guidelines must be adhered to while dealing with technologies. It is very important and essential that technologies are developed and applied responsibly with careful consideration of ethical, legal and social implications to maximise the benefit and minimise the risk.

References

• https://www.supremecourt.uk/cases/docs/uksc-2016-0159-judgment.pdf
• Lenz v. Universal Music Corp. – Wikipedia
• United States Court of Appeals for the Ninth Circuit
• https://law.justia.com/cases/federal/appellate-courts/ca9/16-15469/16-15469-2018-04-23.html
• https://indiankanoon.org/doc/156695842/