This article is written by Gitika Jain pursuing BBA.LLB (Hons) from Amity University, Kolkata. This is an exhaustive article which deals with the relation of artificial intelligence and copyright in the time of COVID.
Intelligence is a beautiful gift bestowed by nature on human beings. It is something that not all living organisms possess. In the modern world, machines have replaced a large number of human and manual work. But can machines take decisions? As a matter of fact, they can and in some cases, even better than humans. Machines’ capability to mimic human intelligence by following a set of rules, technically known as algorithms iterating through the chain of loops and conditional statements is called artificial intelligence.
Concept of copyright
Copyright is a legal right which is provided to protect the original creation of human hard work. This protection is provided in India to protect a unique creation which is not just an idea. Therefore, when something has been created by a particular author or has been expressed somewhere then such work can be protected through copyright.
The word copyright has been defined under Section 14 of the Copyright Act 1957 which provides an exclusive right to the owner to do or authorise the doing of any act in respect of some work like publication of work, translation, reproduction work, etc. Further it is also stated under Section 17 of this act, that the work of the author shall be recognised as the owner’s copyright but if the work is created under a contract for consideration or upon any instruction from any authority then the owner of the work in that situation can be considered as the authority. The details of the ownership according to the situation can be as follows where there are no agreements:-
- Where in the course of employment some work has been done under a contract of service then the owner is the employer.
- Where any photograph has been taken or any portrait has been drawn for valuable consideration before the instance of any person then the owner is the person at whose instance the work is made.
- In case the address is made to the public then the owner is the person delivering the address.
- In cases where a speech is delivered in public but on behalf of some person and the owner is the person on whose behalf the speech is delivered.
- In case of any government work, the government is the owner.
- In case the work published by some director is under the control of some director then that director is the owner.
- In case the work is done under international organisation according to the provision of Section 41 of the Copyright Act 1957 then the international organisation is the owner.
Under Section 2(d) of the Copyright Act 1957 the term author is defined as an author:-
- In relation to dramatic or literary work, is the author.
- In relation to the musical work, is the composer.
- In relation to a photograph the person taking a photograph.
- In relation to an artistic work the artist.
- In relation to the person making the video the producer
- In relation to any work being created the person causes the creation of such work.
There was a case of Rupendra Kashyap v Jiwan Publishing House Private Limited where the honorable court held that in the context of question paper of any examination the person who makes the question paper is the author and the person is a natural person, a human being and not an artificial person. The Central Board of Secondary Education is not a natural person and therefore it can claim copyright in examination of paper only if it proves to have engaged with a person for preparing the examination papers and have a contract with that person.
In another similar case of Techplus Media Private Limited v Jyoti Jhanda (2014) and Camlin Private Limited v. National pencil Industry AIR 1986 the court observed that a juristic person is defined as a person who is not able of being the author of any work in which the copyright already exists. The same thing was also written down in the practice and procedure manual of 2018 that was issued by the copyright office and stated that only for the purpose of copyright the natural persons details must be provided as the author of the work. The person being the author of the work according to copyright must be a natural person because it was based on observations of the court in various judgements like:-
- It was held that the author is the first owner of the copyright under Section 17 of the Copyright Act 1957
- In the case of Feast Publication v. Rural Telephone Service Company (1991), it was considered that the element of authorship in the coordination of materials is important to protect compilation.
- In the case of Burlington Home Shifting Private Limited v. Rajnish Chibber (1995), the compilation that is received from a person who devotes his time, money, labour and skill is considered to be a compilation of literary work and only the author has the copyright.
- In the case of Eastern Book Company v. DB Modak (2008), the copyright ability of the work to be tested as the original work and not as a plagiarized work lies on the judgement of the author.
Background of artificial intelligence
The application of artificial intelligence in real-world scenarios requires a deep understanding of mathematical and statistical knowledge. Even though an extension of statistics and mathematics, artificial intelligence has such a huge scope that it is now made into a single subject with many authors giving their insights on various applications of AI. Broadly speaking, machines can help us in two things:
- First, in predicting the future outcome of an event given the past history and the data.
- Second, they can help us analyse patterns or trends or even segregate data and put similar observations into a single cluster.
Working of artificial intelligence
How do you think YouTube gives you recommendations for the videos that you might like and in most of the cases you seem to be interested in those recommendations? How does our keyboard automatically put forth the autocorrect suggestions for some words and even predict the next word that we might type or think of typing? From the search engine of Google to the friend suggestions on Facebook, we are surrounded and being constantly helped by artificial intelligence without us even knowing.
In order to achieve this, machines use a set of rules called algorithms that are provided to them using programming languages like C, Java, Python, and many more. Each and every direction and the flow of logical statements have to be provided by the programmer without any ambiguity and the machine simply follows the rules laid down. This is called coding. Who knows if even machines can give judgements in the court of law and replace the honorable judges in the future.
Exceptions to copyright protection
In the copyright law written under the statute, there are certain excuses for using some words that would otherwise be an infringement of copyright because they are considered to be fair use. The word fair use is a defence mechanism to infringement which means that whether any particular thing is unlicensed but it can include copyright infringement.
Considering the cases from the perspective of non-AI context, unlicensed digitized books provide full-text search for personality. In those types of cases it was held that wherever it is reasonably mandatory to make use of the entire work in order to ascertain the function of full-text search, copying will not be considered excessive. At the same time, it was also held by the court that particular use of unauthorised works should be considered as fair because they are ready to the market for use by the general public. In some of the areas of copyright law have been allowed to be used unlawfully and accessed by anyone.
Overlap with patent consideration
Artificial intelligence was addressed as the creative machine and was considered to be the inventor of a patent. It was determined that the term ‘inventor’ can be included in artificial intelligence which will contradict the simple reading of the copyright statute and will refer to the inventory as a natural person. Reasons were also given that there was some misconception that represents the complete mental part of the invention and it was also stated that it must be performed by a natural person. Repeated confirmation of the Supreme Court made that the word ‘author’ of the Constitution of India means someone who has authority over his own work and such work is the originality of the author only. So, the ability to protect the artificial intelligence output as a subject matter under copyright statute and to use it as a copyrighted material without the consent is highly of the fact of issue.
Scope for future work
The rapid increase of COVID-19 related to the artificial intelligence uses may make the courts quicken up the announcement of some of the questions that concern the requirement of licensing and the clarification of the word “fair use”. Also, there are many questions to countries like the United States as to when the work related to artificial intelligence will be protected under the Copyright Act. The amount of guidance by humans or with the help of artificial intelligence and the title of authorship we presented to both, human and artificial intelligence may make significant changes in the years to come.
Other possible solution
We can see that artificial intelligence is now being used to create works in the field of literature, music, and gaming. But is the copyright of these works possible? It is not a creation of human beings so may not be subject to copyright. To provide a solution to this problem the current laws governing the copyrights can include to recognise a corporate entity as an inventor. This ability to recognise a corporate entity as an inventor gives the flexibility to consider the discoveries through AI for copyrights. But the solution comes with certain problems for instance in the case where a company owns an artificial intelligence system but another company implements any shoe in a manner in which it can lead to the claimed invention. Here joint inventorship could help me to get the problem.
One more solution is to consider the programmer who built the algorithms to be recognised as the inventor. But the question of whether AI may be regarded as an inventor is still to be answered.
The practical conclusion
Therefore, based on all of the above discussions it can be summed up that the Indian legislation is not sufficient enough and is not well equipped to discuss the rights of artificial intelligence and its creation especially in this time of COVID-19. The Copyright Act 1957 which clearly classifies the author to be a person who pauses the characteristics of a natural human being and not of an artificial person and it is also stated that unless and until the artificial intelligence is given some legal status to that and they won’t be considered like an appropriate owner of some work in the Copyright Act. Further, an alternative approach can be made to make changes to the Copyright Act 1957 in order to include all the artificial intelligence related works under separate categories of the act and to give it recognition as an author. Therefore, neither the amendment of this legislation of copyright act nor the recognition of artificial intelligence looks as a feasible option in the coming future. With the advancement in technology and with consideration of the fact that the efficiency of artificial intelligence is providing recognition to everyone in the era of COVID-19, the creations of slowly moving towards artificial intelligence-related work and in order to balance between the artificial intelligence generation and other copyright issues it is important to form an appropriate structure and identify the rights and limitations that are related to the work created by AI.
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