.
v1.2 | 10 APRIL
2025
This working draft
considers the interaction of copyright law and artificial intelligence,
explores how the law could be amended to make it more compatible with AI, and
suggests that AI has simply highlighted age-old concerns which the law has
given rise to rather than created a series of novel challenges.
Contents
1. Authorial Dependences
2. Privilege and Discrimination
3. Anticipating AI
4. Acknowledged Authorship
5. Creative Processes
6. Tools and Tasks
Two ‘female forms’ which ‘mov’d, and breath’d,
in animated gold’ supported Hephaestus, ‘Sovereign of the fire’ and god of
craftsmen, as he approached Thetis, Achilles’ goddess mother who was to
commission armour for her son. These female forms had been forged by Hephaestus
and, we
are told, had ‘voice, and sense, and science’ bestowed upon them.
Hephaestus’ helpers are widely believed to
have been androids, and, yet, the figures adorning the warrior Achilles’
shield, also forged by the god, are described in the Iliad using terms similar to those which describe the helpers. This
leads one to wonder if Hephaestus’ women of gold were, perhaps, not androids at
all but dynamic figures on greaves, armour protecting tibiae, which quite
literally supported Hephaestus by holding him upright and facilitating
mobility. Such an interpretation does not seamlessly align with the helpers’
grasp of science but neither does it disturb the practice by which living
beings, whether gods or humans, may labour assisted to fabricate works which
would, were they made in our own time, likely be eligible to be protected by
copyright.
Nonetheless, despite assisted fabrication
being well established, there is considerable debate about which uses of
technology are acceptable. Social media platforms often host heated discussions
in arts and crafts groups, for example, discussing what constitutes handmade
items; many knitters appear to treat knitting using a loom with derision,
refusing to recognise items made using looms as truly being handmade. From
their comments, it appears that they view even manual looms, unlike the
knitting needles they themselves use, as machines rather than as tools.
It is, however, not entirely clear where
the dividing line between a tool and a machine
lies. The former is defined by the Cambridge Dictionary as ‘a piece of
equipment that you use with your hands to make or repair something’ while the
latter is defined as ‘a piece of equipment with several moving parts that uses
power to do a particular type of work’. The definitions provide little clarity
since even common pieces of equipment such as electric drills and some sewing
machines, such as those which are handheld and often manual, straddle the line
between tools and machines.
In the case of looms, an
intricately-patterned scarf woven on a handloom used to make cloth would not be
considered to be anything but handmade. A scarf made on a knitting loom,
however, could easily be alleged to not have been handmade by self-proclaimed
purists of the craft. The difference matters not least because it is far more
likely, in our time, that items made by hand rather than by machines would be
considered to be eligible for copyright protection.
Copyright law tends to protect the products
of human labour especially if, in their fabrication, ingenuity has been
applied. In doing so, it has come to protect a mixture of works, tangible and
intangible, depending on the circumstances: not just books and other literary
works but also computer programmes, musical and dramatic works, sound
recordings, films, artistic works (including photographs, sculptures, and works
of craftsmanship) and computer-generated works.
Perhaps betraying its origins as a right
printers lobbied for, the law pertaining to copyright treats trade in literary
works as a given, allowing the content of literary works as well as other works
which can be printed on to paper or like media, physical or electronic, to
retain copyright even if copies of the works are mass-produced but it is less
enthusiastic about trade in other tangible works which would ordinarily merit
copyright protection, and tends to limit the extent to which they can be
protected by copyright if they legally enter commercial channels upon having
been reproduced more than 50 times by an industrial process. [1]
A less cynical outlook would perhaps
explain these disparities in the treatment of various kinds of works, and
copyright law’s choice of which mass-produced works to shun, not with reference
to the origins of copyright law but with reference to the purpose of the grant
of copyright protection. Considered through a utilitarian lens, that the law
protects eligible books and other literary works without reference to how many
copies of them are produced is unsurprising; copyright law protects those works
which benefit society at large, particularly if that benefit is achieved
through the facilitation of access to academic learning, a purpose one tends to
hope that books would fulfil.
Closely linked to broader societal benefits
of protecting specific kinds of works is, of course, the need to protect those
who create works which could be copyrighted: in that swoop, the law protects
not just the authors of literary works but also other creators (and, in recent
decades, performers), especially if they are natural persons, by helping them
monetise their work through the grant of exclusive rights in their creations.
An introduction to the earliest Indian
copyright law, an
1847 statute, noted that it would be expedient to establish a copyright law
in those parts of India governed by the East India Company to encourage
learning while, over a century and a half later, the overriding purpose of the
2012 amendment to Indian copyright statute, in force in the Republic of India
since 1958, was to protect the interests of musicians and lyricists in the film
and music industry.
Perhaps it is the law’s close links with
the potential for monetisation, demonstrated not least by the genesis of modern
copyright as a printers’ right manifested in Great Britain’s seminal 1709
Statute of Anne, which has resulted in those creators who can leverage markets
and social networks to earn money having their works be protected by copyright
far more easily than those who cannot.
In practice, this has meant that in making
choices about whose works merit protection, the law, anchored in patriarchy and
ableism, despite attempts in recent decades to dislodge it from its moorings,
has developed a tendency to protect those works historically associated with
men, for the most part and to prioritise the protection of works of individual
genius. As a corollary, those creative items which have historically been
overwhelmingly made by women are also those which are least readily protected
by copyright law: quotidian cookery is unlikely to be protected but the
creations of (once often male) chefs may be eligible to merit protection, mere
gardens tend to remain unprotected but vistas shaped under the supervision of
(once ordinarily male) landscape architects can be protected, for example.
Strangely, items made using looms and
needles can far more easily be exceptions to the general rule that copyright
has a limited role to play in the protection of supposedly women’s arts.
Needlework, brocades, lace, and tapestries all have the potential to be
considered works of art, perhaps because although the medium differs, their
visual impact can also often be rendered using paints men have traditionally
favoured.
Or perhaps there is an older tale to tell,
which copyright law has subconsciously imbibed: Pandora, handed over to the
titan Epimetheus, was moulded by Hephaestus using clay and water. In Theogony and Works and Days, Hesiod
tells us that she was animated, and given gifts by the gods; the goddess
Athene taught her needlework and weaving. It may not be mere coincidence that
these are the two ‘women’s’ crafts which copyright law can most easily be
called upon to protect.
Although she is commonly referred to as the
first woman, at no point does Hesiod tell us that Pandora is a woman. Instead,
she is described more as a prototype for women than as a woman herself.
Although she is clearly said to have been given the ability to speak, not once
does she actually speak in Hesiod’s telling. [2] And, so,
it may well be that these crafts, which women once predominantly engaged in,
were, in times of myth, passed on to them not by a woman but by an android, a
physical manifestation of artificial intelligence, resulting in their being
treated as more than banal ‘women’s work’, the products of mindful creativity
rather than mindless drudgery.
While it has never been unusual for human
beings to create tangible works with the assistance of technology, until very
recently, it has not been common for technology to create works unassisted only
upon being prompted to do so by humans. Some of the technology which allows for
the fabrication of tangible works, such as that used for 3D printing, has been
relatively easily accessible by the public since about 2009 when an early
patent for fused deposition modeling, a 3D printing technique, expired. Other
technologies, such as generative AI, used to create ‘intangible’ works such as
text, audible music, and visual art which are recorded on and enjoyed through
physical and digital media without necessarily being tangible themselves, have
only exploded in popular consciousness since about 2023, in no small measure,
off the back of the release of a free version of ChatGPT based on GPT 3.5
towards the end of 2022.
The release of GenAI seems, at first
glance, to have been anticipated by a provision of the 1957 Indian Copyright
Act introduced to the statute in 1994 which states that ‘in relation to any
literary, dramatic, musical or artistic work which is computer-generated, the
person who causes the work to be created’ is its author. [3] However,
the 2018 Practice and Procedure Manuals published on the website of the Indian
Copyright Office are non-committal about who the authors of musical
works may be, indicate that the authors of artistic
works must always be human, and assert that only human beings can be
authors of literary
works.
Thus, the law does not clearly allow for
the authorship of entirely computer-generated literary, dramatic, musical or
artistic works to be attributed to humans. Consequently, it would appear that
the absence of categorical assertion, perhaps inadvertently, allows for the
authorship of such computer-generated works to be attributed to companies; it
is not clear how the statutory position of attributing the authorship of
computer-generated literary, dramatic, musical and artistic works to the
persons who cause them to be created and the aversion to such persons being
natural persons could otherwise be reconciled.
This is in contrast to the treatment which
both the 1957 Copyright Act and the 2018 practice manuals have accorded to
works which are often composite in nature, namely: sound
recordings and cinematograph
films; the statute states that their producers are their authors while the
practice manuals allow ‘producing companies’ to be named as their authors.
The statute is silent on the subject of who
the authors of computer-generated composite works may be but, in the case of
composite works created without the support of artificial intelligence, it
allows both natural and legal persons (or, in the case of the latter, corporate
entities, at any rate) to be considered to be authors. Therefore, despite the
absence of explicit prescription, it could perhaps be argued that either human
beings or legal persons could be considered to be the authors of computer-generated
composite works simply given the absence, too, of explicit proscription.
There is no guidance in the 1957 Copyright
Act about what ‘causing a work to be created’ by a computer means. As a result,
it is also possible that statutory silence could be interpreted to mean that no
person, human or legal, is the author of composite computer-generated works,
and that the software programmes which generate them are to be considered their
authors. If that were the case, it is unlikely that works so created would be
protected by copyright.
Determining who the authors of potentially
copyrightable works are is important simply because authorship is often only
one short step away from ownership: the author of a work is usually the first
owner of copyright in the work. [4]
Unfortunately, having come into being as a
somewhat mercenary right which tradesmen lobbied for, copyright law does not
have a solid foundational understanding of what authorship entails. Instead, it
relies on a rudimentary understanding of who may be recognised as an author (by
tradesmen) to this day which, entirely unhelpfully, defines the authors of
literary, and dramatic works as the authors of those works, [5] and veers
away from popular understandings of authorship primarily to accommodate
commercial imperatives through its recognition of producers as the authors of
what would once necessarily have been expensively-made, often composite works. [6]
In our own time, technological assistance
available to authors has come to take many forms, most of which defy
heterogeneous categorisation; amongst them, a combination of: physical tools at
the disposal of authors, artificial intelligence which may be used to support
(and occasionally displace) natural and legal persons who are creators, and
assistive technologies aimed at enhancing the ability of people with
disabilities to engage with the world.
The law treats all natural creators at par,
equally and not necessarily equitably, making allowances for them with
reference to the kinds of works they may create, such as through the so-called Bollywood amendments, and not
with regard to their own innate abilities. How a broader range of allowances
could be framed, however, remains an open question.
It has been suggested that the
intention of authors at the time of creating copyrightable works may play a
role in determining the legal protection accorded to their works. However, in
discussing the relationship between copyright and designs law, the Delhi High
Court noted: “The artist’s intent at the time of creation of the artistic work
is indecipherable at the best of times. Artists are governed more often than
not by their emotions and moods and whatever be the intention at the time of
the creation of the artistic work cannot, in our view, determine the nature of
protection available to the artistic work.” [7] That being
the case, it is unlikely that authorial intention or the conscious volition of
creators could be used as the basis to validate legal authorship in Indian
jurisprudence.
Coherent extrapolated volition, the machine
counterpart of conscious human volition, too, is, by extension, unlikely to be
meaningful in terms of acknowledging authorship for the purpose of copyright
law. This aligns with the law’s reluctance to recognise humans as the authors
of computer-generated literary, dramatic, musical and artistic works but it
does nothing to present a solution to the question of how authors should be
recognised given exponential increases in the use of technology, particularly
artificial intelligence, in creative processes.
So far, the best efforts of the law to keep
pace with technological advancements, and to ensure that all creators are
treated fairly, have proved to be inadequate. For example, although the 1957
Copyright Act contains some far-reaching
and equitable provisions related to disability, the fact that it focuses on
treating people with disabilities as consumers of copyrighted works and rather
than as creators of copyrightable works is inescapable. The statute contains no
particular provision to enhance the ability of people with disabilities to step
into the role of legally-acknowledged authors perhaps by lowering the threshold
of copyrightability should they create works using assistive technologies.
Volition itself is more frequently
recognised in the context of infringement than of authorship with its likely
having helped develop exceptions to liability for copyright infringement
enjoyed by intermediaries which merely provide neutral networks through which
infringing copies of works may have been transmitted. Nonetheless, it may also
be a useful tool for developing a theory of authorship.
Even though Indian law seems inimical to
recognising conscious volition as the basis for acknowledged authorship, it may
be possible to argue that functional volition (understood with reference to the
underlying processes through which copyrightable works may be brought into
being by creators) could legitimately form the basis on which authorship is
acknowledged by the law. Not only would this help align aspects of copyright
law relating to authorship and infringement with each other by having a common thread
run through each of them but it would also allow for copyright to be shaped to
account for the capabilities of individual authors and the allowances which may
need to be made to ensure that they, and their use of technology, are
considered fairly.
The manner in which people use assistive
technologies to create copyrightable works varies from their using technologies
to accomplish disparate tasks using tools to support their creating works which
are undoubtedly of their own making; these tools may vary from tangible
physical apparatus to artificial intelligence. While in the case of the former,
it would seem to be the difference between ‘tools’ and ‘machines’ which has a
central role to play in determining the copyrightability of works, in the case
of the latter, questions regarding the copyrightability and the use of AI must
begin with asking how AI interacts with copyrighted matter, go on to question
to what precise use AI is put to by its users, and finally determine if the
output which comes into being with the involvement of AI merits copyright
protection.
Training Data for AI
The first of these questions requires an
analysis of what data or content is fed to AI to train it to act in specific
ways, for what purpose the AI deals with the content, and how it treats the
content to formulate outputs. Strangely enough, if one were to disregard the
fact that the statute does not deal with minor infractions, [8] it is just
one provision of the 1957 Copyright Act which deals with all these aspects of
the issue: Section 52 which enumerates exceptions to copyright infringement.
Protected works other than computer
programmes, as Section 52(1)(a) of the 1957 Copyright Act says, may be used
without authorisation for private or personal purposes including research, for
the criticism or review of the works themselves or other works, and for the
reportage of current events, current affairs and public lectures. The provision
does not differentiate between commercial and non-commercial use, and although
its emphasis on private and personal uses in its first subsection may lean
towards such a demarcation, it is also possible that open artificial
intelligence systems used by closed groups may satisfy the requirement that use
be ‘private’ as opposed to being public to benefit from the exception carved
out by the provision. Notably, the other two subsections of Section 52(1)(a) of
the 1957 Copyright Act dealing with review and reportage do not contain
analogous restraints. All three subsections do, however, require that
unauthorised use be fair to fall within the scope of the provision; Indian statutory
law does not define ‘fairness’ in this context but an understanding of fairness
drawn from § 107, Title 17, USC, which explains ‘fair use’ in US law, has been
incorporated into the Indian corpus juris
through case law.
Section 52 of the 1957 Copyright Act
carries on listing exceptions to copyright infringement from subsection (1)(a)
all the way to subsection (1)(zc), finally ending with subsection (2) which
extends the application of the exceptions carved out in Section 52(1) to translations
of literary, dramatic, and musical and to adaptations of literary, dramatic,
musical, and artistic works in the same way that they apply to the works
themselves. The exceptions cover a wide range of subjects and circumstances but
their tenor remains remarkably consistent in that they explain what can be used
and how with limited regard to the identity of users.
The consistency may make them appear to be
rigid but the interpretation in the real world has proven to be less than
inflexible. Indian courts have, for example, recognised ‘transformative use’ as
a valid defence to counter allegations of copyright infringement even though
the term quite simply does not appear in the 1957 Copyright Act, much less in
Section 52.
There is also the fact to consider that the
exceptions to copyright infringement appear to step straight from one work
being used or copied to create another in a manner where proximity would, but
for their existence, lead to the commission of infringement. While such an
arrangement functioned smoothly in a world that had not seen the proliferation
of AI, it does not work as smoothly in an AI-ridden world.
It is not one step from having so-called
training data as AI inputs to the manifestation of an AI output. The lack of
proximity between input and output, when it comes to AI, could be read in two
ways: either that proximity (closely linked to the expressive use of one work
in the creation of another) is required for infringement to occur and,
therefore, the lack of proximity means that no infringement has occurred, due
to which the exceptions to copyright infringement in the 1957 Copyright Act
tend to ignore situations in which there is no proximity, or, alternatively,
that choosing not to deal with situations which lack proximity is a considered
choice meaning that the lack of proximity is no defence to allegations of
infringement.
It is extremely unlikely that there could
have been much thinking along these lines when the 1957 Copyright Act was first
drafted simply because the relevant technology had barely begun developed, and,
despite the statute having been amended several times since then, there does
not appear to have been much, if any, attention paid to the possibility of AI
gorging content as training data. This is far from the first time that the law
has had to find ways to catch up with technology, and although the initial steps
to do so may be taken by the courts, ultimately, the question of how to handle
AI may well fall to Parliament.
One way in which the law could handle
copyrighted content being used as training data would be to craft a new
exception to copyright infringement to allow for such use. A broad exception
would, however, be unlikely to be fair simply because it would facilitate
extremely well-funded AI companies using content belonging to others without
either authorisation or remuneration.
That being the case, if the choice to expand
the statutory exceptions to copyright infringement were made, it would be
necessary to frame an exception to infringement to account for the wishes of
authors and rights owners (which may not always align with each other), and to
ensure that the law would not inadvertently come to either facilitate unjust
enrichment or block technological progress.
Fair Dealing
The primary challenge to contend with is
the almost ubiquitous nature of copyright: copyright has come to protect almost
all content, including the most banal, provided it meets decidedly low
thresholds of copyrightability. Although doctrine somewhat raises the bar
through scènes à faire and the like, per the 1957 Copyright Act, sound
recordings and cinematograph films must merely be non-infringing to benefit
from copyright protection, [9] while literary, dramatic, musical, and artistic works must be original to be
protected by copyright, [10] with judicial interpretation resulting in ‘originality’ rarely requiring much
beyond having a work originate from an author. This has resulted in very little
contemporary content not being protected by copyright.
One possibility would be to have the law
treat works differently depending on whether or not they were commercially
available at the instance of authors, and on how the relevant AI systems were
structured. Although far from a foolproof mode of differentiation, it would
seem reasonable to ordinarily assume that significant effort had been made to
create content legally made available for sale or hire, and it would seem to be
fair to exclude such content, including trade fiction and commercial animation,
from the scope of an exception to copyright infringement.
Simultaneously, it would also seem
justifiable to include works which were not commercially available within the
scope of a possible exception to copyright infringement allowing protected
content to be used as training data by AI, provided that the works were not
tagged with an explicit indication that they were not intended for such use,
not simply on account of the practical challenges involved in tracing the
competent persons to grant licences in respect of all content which was not
commercially available, negotiating licence terms, and paying fees but also
because of the inescapable possibility that many authors may have little desire
to be traced.
Copyright law would need to walk a fine
line between protecting authors’ commercial interests and their privacy; it is
entirely possible that some authors (such as those who have been subject to
gender-based violence in conservative societies and who speak about their
experiences to raise awareness) may desire anonymity for their advocacy.
Forcibly shredding the privacy of authors at the altar of copyright maximalism
is unlikely to benefit either authors or society at large which may ultimately
be deprived of their voices.
Authors’ Consent
When it comes to content which is
commercially available, too, the law would need to tread carefully noting that
within the category lies, on one hand, content published subject to contractual
negotiation which has been made immediately available for monetisation whether
or not its authors have received pecuniary remuneration such as text published
by traditional academic and trade publishers, and, on the other hand, content
published subject to contractual imposition (including through various software
EULAs and website ToS) which could be monetized but may not have been published
with the intention of having it enter commercial channels such as a significant
fraction of end-user posts on social media platforms.
In the case of content published subject to
contractual negotiation, it is likely that the identity of authors would be
known to publishers while, in the case of content published subject to
contractual imposition, such knowledge cannot be taken for granted, and any
framework to obtain authors’ consent would therefore have to be developed
cognizant of the need to avoid unmasking the identity of authors who would
prefer privacy, if not anonymity. Nonetheless, in both cases, it would be fair
to require that authors’ consent for the use of content they have created as
training data AI be obtained.
Ensuring that publishers acting as content
aggregators do not unilaterally license content en masse to AI companies without consent from and remuneration
payable to the authors who have created it may require an amendment to the 1957
Copyright Act to ensure that signed grants of rights to publishers, whether
historical or not, are not interpreted to allow such conduct. Further, while
tweaking the provisions in the copyright statute pertaining to contracts would
probably be adequate to obtain informed consent in the case of content
published subject to contractual negotiation, it would probably be necessary to
include an additional provision in the case of content published subject to
contractual imposition to ensure that users were in fact aware of the possibility
that content they created and uploaded could be used to train AI, and to give
them the option to refuse to allow their content to be so used.
Licences to Train AI
Finally, is the question of the manner in
which AI systems should benefit from derogations from the usual flow of
copyright law whether through exceptions to infringement, extraordinary
contractual perquisites or otherwise.
Looking at the issue through a utilitarian
lens, it could be argued that, to benefit from derogations without charge, an
AI system should need to be open and have subscription levels where end-users
(being members of the public) could meaningfully use it without payment.
Failing that, if AI systems were some combination of closed, proprietary and
chargeable, there could conceivably be established a mechanism through which
statutory licences could be obtained in respect of them to legalize their use
of certain forms of protected content as training data.
Such a layered approach is not unknown to
copyright law: the provisions in the 1957 Copyright Act which help to make
copyrighted works accessible to people with disabilities are contained in an
exception to copyright infringement which focuses on personal, private and
not-for-profit access to copyrighted works in streams independent of the usual
commercial channels of trade, [11] and in a compulsory licence which allows for-profit operations. [12] In essence, the law facilitates the possibility of the grant of a licence in
cases beyond the purview of the statutory exception to infringement.
Copyright law generally does not operate
independently: although its substantive provisions are contained almost
exclusively in the 1957 Copyright Act, in practice, its procedural provisions,
particularly relating to rights ownership and exploitation, come into their own
at the confluence of contract and copyright law. That being the case, it is not
exceptional for copyright law to call upon contract law.
The proliferation of AI, with creators of
all stripes using it, has forced copyright law to grapple with determining the
extent to which works may be brought into being with technological assistance
without sacrificing their eligibility to be protected by copyright (and without
their creators sacrificing the right to be acknowledged as authors).
This brings one to two issues: the legality
of the manner in which AI treats content, and the legitimacy of the uses to
which humans put AI with ‘legitimacy’ being understood to include not just
legal but also ethical considerations. Unfortunately, these issues raise
questions which do know have easily discernible answers: firstly, the question
of what exactly AI does with content which has been fed to it as training,
and, secondly, the question of what exactly humans who use AI are doing with it.
The operations of AI systems tend to be
opaque, especially in the case of proprietary AI, and, so, it is often
impossible to determine if, in its operation, AI winds up committing copyright
infringement. And, as far as the activities of human users are concerned:
although it is unlikely that an end-user could be held liable for the
operations of AI, the purpose and manner in which they used AI would likely
determine whether they could be considered the legal authors of works they had
brought into being.
Complementary to the issue of whether or the output of AI could be considered to have been authored by its end-user creator are the questions of, firstly, whether or not the output could be considered to have violated the rights of people (other than the end-user who had caused the work to come into being) such as the right to privacy and the right of publicity, and, secondly, whether or not the output could be considered to have infringed rights subsisting in preexisting works. The first question could be reasonably addressed by drawing on not just various statutes which deal with the relevant subjects but also by drawing on tort and, to examine if there were any way to justify what would otherwise be unjustifiable rights violations, contract law.
The second question, that of infringement, would be reasonably easy to address with reference to sound recordings and cinematograph films simply because, under the 1957 Copyright Act, infringing works cannot have copyright subsist in them. In the case of other works, however, the issue is murky because the law merely requires them to be original; coupled with the doctrine of independent creation which allows copyright to subsist in two similar or even identical works if they have been independently created, it is not impossible that copyright could subsist in what would, but for the doctrine of independent creation, have been infringing. Here, too, copyright law is clearly not designed to cope with AI since while the end-user of a work may imagine that it has been independently created, the AI itself may have been fed protected content as training data. How the law treats the output of AI may have to factor in whether or not the training data had been acquired legally, and, if so, the terms under which it was so acquired.
Similarly, the issue of the who was recognised as the author of works created with the assistance of AI would likely depend not just on the extent to which AI had been relied upon but also on the terms of use appurtenant to the AI. Even if the output were copyrightable, it would not necessarily be possible for a corporate owner of AI to be considered to be the author (except in cases where the output was in the form of a sound recording or a film) although it is possible that the company could, through its terms of service, require end-user creators to assign all rights in the output to the company or to allow the company to exploit the output in various stated ways. To avoid situations in which companies took undue advantage of end-user creators and, possibly, unjustly enriched themselves at their expense, it may be necessary to lay down minimum standards for such contracts in subordinate legislation if not in statute itself.
One of the concerns which has come to repeatedly presented itself in relation to the output generated by AI is that of the legitimacy of works created in the style of contemporary authors. It may be possible to argue that where those authors have, in any case, commercialised ‘their’ style such they employ studios filled with artists to replicate it in a variety of ways, they have also lost the right to protect their style being imitated by end-user creators using AI. Such an argument could, by analogy, conceivably apply to the works of any author has made their style formulaic and commercialised.
Further, the use agentic AI alone would likely not
result in the creation of a copyrightable work. However, the use of agentic AI
or AI which accomplished specific and limited tasks in a broader creative
process, which allowed the argument to be made that AI had merely supported the
creative endeavours of its human users, could well result in the creation of
works which were copyrightable and whose creators could be considered to be
legal authors. The use of generative AI would, however, be far less likely to
result in either the creation of copyrightable works or in having human users
who prompted the creation of works be recognised as legal authors.
The line between the two, however, is
extremely thin and blurred. For example, AI which harmonised a melody could,
depending on one’s point of view be considered to be either agentic or
generative AI. This ambiguity is not new: it echoes old uncertainties relating
to the difference between ‘tools’ and ‘machines’ with much the same effect:
there being a distinct lack of clarity about who could be considered a legal
author and which works might be eligible for copyright protection.
While it may appear that AI has caused
tectonic shifts in copyright landscapes, it may be more accurate to say that it
has merely caused old fault-lines to appear in stark relief. In doing so, it
creates the opportunity to address lacunae in the law and to recast it in an
equitable mould. Whether that opportunity is availed of or squandered remains
to be seen.
[1] Copyright Act (India) 1957, s 15.
[2] Francis, James A. “Metal Maidens, Achilles’ Shield, and Pandora: The Beginnings of ‘Ekphrasis.’” The American Journal of Philology 130, no. 1 (2009): 1–23.
[3] Copyright Act (India) 1957, s 2(d)(vi).
[4] Copyright Act (India) 1957, s 17.
[5] Copyright Act (India) 1957, s 2(d)(i).
[6] Copyright Act (India) 1957, s 2(d)(v).
[7] Microfibers Inc. v. Girdhar & Co., High Court of Delhi, RFA (OS) NO.25/2006, 28 May 2009.
[8] Copyright Act (India) 1957, s 14.
[9] Copyright Act (India) 1957, s 13(3).
[10] Copyright Act (India) 1957, s 13(1)(a).
[11] Copyright Act (India) 1957, s 52(1)(zb).
[12] Copyright Act (India) 1957, s 31B.
Note: This piece by Nandita Saikia was first published at lawmatters.in. References to statutes and other laws are references to Indian laws unless otherwise stated.