This article has been written by Namrata, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction 

With the dynamics in the technology evolving rapidly, Artificial Intelligence (AI) has gained ground. Speaking about Intellectual Property (IP), the advent of AI has rather posed various challenges to the protection of works through IP laws. Computers have been in use for a long time now, but when they were invented little did anyone think they would fall under the ambit of copyright laws. This is because the task was completed by the computer because of the commands given by the humans. It was the humans who authorized just a task to be completed by the computer. Back then, computers were simply seen as tools that needed a human interface to perform tasks. 

Copyright is a legal right that protects the content that is original and is pertaining to the creations of the human mind and intelligence. This protection under copyright is provided in terms of moral and economic rights. The term authorship refers to the person who creates the copyrightable work. There have been various laws in place that protect the work created by humans, but when it comes to AI generating the copyrightable work; there arise various questions as to the laws applicable for the same and the need to being about the required changes in the existing IP laws. The same shall be discussed in length in this article. 

The advent of AI and its impact on IP laws

The advent of AI took the world of Intellectual property through a storm.  2010 marked the year when AI began to grow and expand in a humongous way. Speaking about the work created by AI, it can be stated with conviction that such a work is at par human excellence. Another important question to be pondered here is whether the current laws are adept enough to regulate the work of AI. The answer to this question would not be affirmative. The existing laws, especially the ones related to copyright are equipped enough to protect the work generated by human beings. Not the ones generated by machines. Now the significant question to be answered is whether the work of the machines should be included under the grab and scrutiny of copyright law. This article will shed light on various aspects ranging from creative aspects of AI, whether the same should be protected under the existing laws, and the scenario in different countries. Lastly, the possible problems that come about in applying the traditional approach to AI and the possible solutions to these problems will be discussed in length.

Significant aspects of authorship in copyright  that make AI creative

AI has come a long way; so much so that they can create their own work. Some of the important aspects of AI have been discussed below:

1. Unpredictability– An innovative feature of AI is that it can create new works without copying anything from the older version of the same. This is possible because of their ability to produce unpredictable routes to device optional solutions. The AI takes the data and recomposes it to come up with completely different kinds of data. 
2. Independence– Whenever a device is capable of executing a high-end task without taking any external help whatsoever; such a device can be termed to be independent. AI has been successful in completing numerous tasks without any human interface. 
3. Competency– AI is capable of processing huge amounts of data in one go. The processing is accurate and competent to the extent that humans can go wrong in such calculations while AI never does. 
4. Free Choice– This aspect puts emphasis on the fact that whenever an alternative or a choice is available to the AI, it chooses the best alternative available by its own. Through this, the AI arrives at the best possible solution. 
5. Learning Proficiencies– Once the AI receives data, it keeps on processing the data. While doing so, it gets feedback and keeps on improving the results. 
6. Goal-Oriented– The AI always works in accordance with the goals that are already set for them. For Instance- writing, researching, storytelling etc. 
7. Creativity– AI is something that creates work that is original and new. Hence, here they act as creators of creative work. This aspect has a major role to play in terms of Intellectual Property Rights. 

A look into the laws of different countries: Are the existing statutes capable of protecting the works of AI?

In this segment, the article will look into the existing laws in various countries if the same can be applied for protecting the works of the AI:

1. Japan-The copyright laws of Japan state that whenever there exists free expression of thoughts or sentiments and if these fall under the ambit of literary, music, scientific or artistic domain, they are rightfully protected by copyright laws. 

The term creativity should be further interpreted here, it covers the aspect where it is basically the personality of the author that is expressed in different ways. This is further interpreted by the courts in different manners. Here the word ‘creativity puts an onus on the personality of the author. Therefore, it can be inferred from this that only the work of humans is given prominence. There is no inclusion of creativity of the machines or AI. Hence, no protection is offered to work of machines or artificial intelligence under Japanese laws. 

2. The USA– Following the same norm as that of Japan, even the US does not identify or offer protection to the creative work of the AI or the machines. The US Constitution bestows the power to congress to enact Copyright laws. Hence, the US copyright law states that the US Congress has the power to uphold the development of science and the useful arts, but these are restricted to the times of the author, and the authors tend to have exclusive rights here. Hence, there has been no place for AI-related creativity work in the US Copyright laws. In addition, the US courts have exclusively stated that there would be no protection offered to the work of AI and machines. 

3. Germany– Copyright laws of Germany expressly state that only the works of the individual are protected under it. Hence, the work of the machines or that of AI is not protected under the copyright law of Germany. Hence, authorship with respect to artificial intelligence is not conferred upon any protection under the copyright regime. 

4. United Kingdom– UK laws make a U-turn from the common practice followed in most of the countries that have been discussed above. Section 9, Para 3 of the Copyright, Design and Patent Act, 1970 states that, in the case where the literary, music or dramatic work is generated by the computer, the author shall be considered as the person who made the necessary arrangements for the creation of such a work. 

From this, it can be concluded that the copyright, trademark, and patents act of the UK offers protection towards the work generated by the AI and the machines. 

Numerous problems encountered in providing authorship rights to AI 

When the traditional copyright laws are applied to machines and AI, there are various complications and obstacles encountered. The same will be analyzed and discussed below: 

• A machine is given the status of an author– There is a possibility of giving authorship rights in copyright to a machine in AI. But by doing so, one would be emphasizing the fact that the machine will be accountable for the making of the copyrightable work. However, the court would not be in line with such a development. This is because the courts do not consider machines in AI as legal entities or legal persons. This is one loophole that needs to be looked into.

Further, looking at the flip side, there is even an advantage in making machines the authors. The IP laws reinforce the fact that the creator of the work is himself the author. This comes in handy, as the complicated legal solution of assigning the authorship rights to someone who hasn’t contributed to the creative process will be solved. 

The authorship rights can be assigned to AI on the below-mentioned circumstances:

1. It is the AI that decides on its own as to when to create the work.
2. The work created by the AI is casual and cannot be anticipated. 
3. AI should be independent in terms of its algorithm, that is, it should be bereft of human interference. 

Other problems encountered in awarding authorship rights to machines and AI

1. Characteristics of self-awareness– There is a need for machines to act like humans and the development of a characteristic of self-awareness for the authorship rights to be granted to them. But the same cannot be expected in a machine.
2. The core idea of IP is to provide incentives to authors- Intellectual Property Rights aim to provide incentives to the authors for the work they create. When it comes to machines and AI, they won’t require incentives. This beats the point of IP laws. 
3. Depriving the programmers and end-users of their rights– There are various people involved in the creative process of the work. These people include programmers and end-users. Now if the AI and the machines are made the authors, the programmers, and the end-users of their rights. Additionally, the programmers and the end-users also have time, labor, and money. They would be deprived of their rights if there is no credit given to them and if the machine is made by the author.  
4. Making a distinction between the author’s work and the machine’s work– A solution to the problem posed above would be to provide joint authorship to the programmer and the algorithm. But then again, it becomes extremely difficult to differentiate between the work of the author and the machine. One cannot specifically determine the author’s contribution to the work. 

A possible solution to the problem posed above

An appropriate solution to the problems that have been posted above is to make the work of AI available in the public domain. There do exist drawbacks to this, but these drawbacks are rather minor and few in number. Here, the author himself will be considered as the machine. Since the software cannot be considered a legal entity, it would not be deprived of any rights; there is no rights in the first place. The programmer here can get the code copyrighted. Therefore, the programmer will receive passable protection and compensation. Furthermore, the end-user who was deprived of his work can create a work in that derivative work. This work can be copyrighted by the end-user and the required protection will be granted for the same. Lastly, when AI work is made available in the public domain, even the public will benefit from it. This is because the public can access the creative work without there being prejudice caused to the content producers. Looking at the flip side, this kind of framework would still pose a problem in terms of enforcing false copyrights. In this case, the infringers will have to prove that the work was exclusive of the AI and the protection granted to the work was not valid in the first place. 

Conclusion 

With the dynamics of AI evolving rapidly with the changing times, it calls for a revamp in the existing IP laws. The existing laws are not capable of offering protection to the creative works of AI as discussed in the earlier segment of the article. To turn this around, there is a dire need to amend the existing laws. This amendment should be in such a way that it should be inclusive of the current day scenario and the rapidly changing aspects of the technology. As there are numerous difficulties identified with respect to IP laws protecting the work of AI, a necessary revamp in the working of these laws is the need of the hour. 

References 

• Rithvik M Kulkarni, Of Artificial Intelligence and Authorship, SpicyIP, https://spicyip.com/2016/12/of-artificial-intelligence-and-authorship.html, (11th December 2016).

• Avishek Chakraborty, Authorship of AI-generated works under Copyrights Act, 1957: An Analytical Study, SSRN journal, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3443006, (2nd July 2020).

• Divya Rai, Copyright law and Authorship: Authorship rights of Artificial Intelligence works, IIPRD blog, https://iiprd.wordpress.com/2021/02/27/copyright-law-and-authorship-authorship-rights-of-artificial-intelligence-works/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration, (5th August 2020).

• Yashik Sahni, Should the work created by AI machines be protected under Copyright law?, Khurana and Khurana IP blog, https://www.khuranaandkhurana.com/2020/02/05/should-the-works-created-by-artificial-intelligence-machine-be-protected-under-the-copyright-law/, (5th February 2020).

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