THE DILEMMA OF COPYRIGHT LAW AND ARTIFICIAL INTELLIGENCE IN

INDIA

Authored by- Chintan Bhardwaj, JGLS, O.P Jindal Global University

Saakshi Agarwal, JGLS, O.P Jindal Global University

Assigning copyright ownership to the AI technology under the Indian Copyright Act primarily
calls for the determination of their status as an author, for the ownership as per the law lies in the
author who produced the worki. The novelty and the envisioned heightened potential that this
technology poses makes this a rather tricky arena to deliberate upon. In the event of a human
author, it is fairly simple to determine their authorship but it becomes far more complicated when
the subject is a computer based, mechanical work. The technology of Artificial Intelligence has
been growing in leaps and bounds and is pervasive through almost all the facets of human
existence. The essential idea behind this technology is to augment human capabilities. The
prominent attribute of an AI technology functions through machine learning, that is, syntactic
analysis of patterns and data that is then reproduced by these machinesii. They have been built to
think, act and perform like humans but undoubtedly far from natural humans. The contention of
authorship with respect to their intellectual property right laws extends throughout various
jurisdictions. The non-human entities when they create Artistic works are not recognized as
authors for the purpose of copyright by the United States Copyright Office, showing their
reservations against the assigning authorship to such computer- based technologiesiii. The US
copyright laws strongly affirm the author to be a human for the purpose of owning copyrights and
has been in practice ever since. Though section 101 of the Copyright Act of 1976 does not
explicitly define the term “author”iv, the courts have maintained a similar line of interpretation. Say
for instance in cases like the Community for Creative Non-Violence v. Reid, it was held by the Supreme
Court that the “person who translates an idea into a fixed, tangible expression” would be the
author of the work created.v Similarly in another case, the Ninth Circuit explained that an author
would be the human being that “compiled, selected, coordinated, and arranged” the creative
work.vi It seems as though the US courts look for the element of human creativity and human
inspiration in the works created and that becomes their distinguishing factor. In several cases the
US courts have clarified that they the unique personality of the author and their response to the
natural existence around them is the essence of a work that can be copyrightedvii or that the
existence of a “creative spark” is the crux of a copyrightable workviii. The CONTU have also firmly
taken the stance as the courts and deny authorship to these computer technologies for they lack

Electronic copy available at: https://ssrn.com/abstract=3850528

the creative element that humans possess and the cannot be deemed to be the original creators of
the workix.

However, the UK has tried to make a place in their Copyright laws for the works generated by the
AI and have taken the initiative to indulge in a discussion. Unlike the above jurisdiction, the UK
law explicitly accepts computer-generated works as copyrightable work vide section 178 of the
CDPA, stating that in the event a work is created by a computer “in circumstances that there is no
human author” such works would be acceptable as creative work for the purpose of copyrightingx.
In spite of this non-conventional move by them, there still exists a debate regarding the authorship
and subsequently the ownership of such a work. Section 9(3) of the CDPA states that the author
of such a computer-generated work would be a “person by whom the arrangements necessary for
the creation of the work are undertaken”xi. This provision causes to make a choice between the
creator of the AI and the user who enables the AI to produce the artistic work as the person
befitting the ownership of the copyright. However, with the rising technological advancements of
AI systems, which are becoming increasingly capable of producing the artistic works independently
and autonomously without any human interference, it becomes rather murky to determine
authorship.
Indian copyright laws in alignment with the UK law also defines the “author” in a similar vein xii,
assigning the ownership to the person who caused the work to be created in the capacity of an
authorxiii but this definition is not limited to natural persons and also encompasses juristic persons
like companies and organizations. Though there exist no legal precedents regarding Artificial
Intelligence generated work, the above inclusivity in the provision does show potential for the
expanded interpretation of authorship for AI. The purpose behind such copyright laws have been
to incentivize the creators for their expressions and their labour put into the creation of artistic
works. Henceforth, it becomes extra tricky to give the position of the first author to the AI itself.
The challenges around assigning authorship to the AI is that even the Indian jurisprudence
envisages a natural person. For instance, in Section 22 of the copyright Act, the timeline of the
existence of the copyright is stated and it mentions words like the “lifetime” until “sixty years”
after, meaning the legislators only accounted for the natural persons who would eventually pass
away and the exhaustion of the timeline would occur accordingly. Section 51 of the Copyright Act
also expresses that a copyright can be infringed by a person. There seems to be limited possibility
of fitting in the non-human criterion for an AI algorithmic creation within this legislation.
However, with jurisdictions deliberating upon the inclusion, it would be necessary to contemplate
the ways through which a change could be possible. Keeping in mind the principles of copyright

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laws, the theory commonly used in copyright laws even in India is the sweat and brow theoryxiv. It
basically means that the individual who put in their efforts and labour and produced the artistic
and creative work would be the rightful author and be given the right to protect their work. The
algorithms and the AI machine would have no need or purpose of saving the work. Several artists
speak against giving the ownership of the IP right to the algorithm as they expect to receive the
incentives for the work created by them and not recognizing them as the rightful author would
discourage innovationxv. Nonetheless, scholars who speak in favour claim that declaring the
programmer as the author of the work created by algorithm or the AI technology has its own
disadvantages. Going by the abovementioned theory, in the event the programmer had nothing to
do with the final output, its nature and others, and the results are discovered only after the
operation of the AI, then it wouldn’t be sufficient to hold the programmer as the author of the
eventual resultxvi. With AI technologies that are quickly adopting human-like behaviour and are
able to autonomously produce works like Google’s Deep Mind AI or the Endel, which is a self-
learning algorithm which produces music. The developers of the software had no music creating
abilities whereas it was the AI application that taught itself and autonomously produced music and
sound frequencies, in that situation it must carefully be analyzed as to whose labour and skill
created the work and whose interests must be safeguarded.
Another plausible method through which the AI technologies could receive copyrights for their
work is through assigning joint authorship to the human programmer and to the AI technology
that created the work. Section 10 of the CDPA Actxvii of the UK defines joint authorship as the
work created by the collaboration of multiple authors wherein the contribution of each is
indistinguishable. The UK legislators and scholars are gradually acknowledging the complexities
around the AI technology and have explored this method of assigning authorship. Sophisticated
AI technologies like the robotic and electronic personhood function through considerably
independent agency have been considered to be assigned joint authorship, along with their human
creators, if a larger and the major part of the work was done by the AI program with minimum to
least contribution by the human programmerxviii. Thereby, giving due recognition to both the
entities for their work. The Indian Copyright Law also defines joint authorshipxix in a similar vein
and Indian legislators could also deliberate upon this method as the introductory steps towards
establishing a discourse around these rights. With the introduction of AI technologies of multiple
kinds and cognitive abilities, and the rather high success rate of them passing the ‘Turing test’, the
authorship criterion gets more blurred. The possibility of including juristic persons within the
meaning of authors under the Indian copyright legislation gives a hope for a positive development

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should the scholars and the legislators agree with the evolving AI having the status of a juristic
person for this purpose.

Originality with respect to copyright in India is stated under section 13 of the Copyright Act, 1957.
“As copyright law protects only the expression of an idea, and not the idea itself, the “work” must
originate from the author and the idea need not necessarily be new. Views diverge with respect to
two important doctrines pertaining to how originality accrues in any copyrighted work: the “sweat
of the brow” doctrine and the “modicum of creativity” doctrinexx the further clarification on the
same has been left on the part of judiciary to interpret. In the case of Eastern Book Company v. D.B.
Modakxxi the supreme court gave significance to the ‘Modicum of creativity’ with respect to
originality under section 13 of the Copyright Act, 1957. It was observed in the court that
reproduction of literary work cannot be copyrightable and further cannot be considered as an
‘original’ work, if copied.

In US jurisdiction, originality had been defined in the case of Feist v. Rural telephone service,xxii wherein
the court has established that in order for a work to be considered as an original work it should
have a modicum of creativity. The minimum level of creativity should be present in the work to
be considered it as an original and subsequently copyrightable. The court also observed the value
of way of expressions and held it to be considered to be copyrightable. In UK jurisdiction, the
case of University of London Press v. University Tutorial Pressxxiii had established the test of originality,
the court observed the work does not need to be original to be considered as an original work
within the definition of copyright right law as long as it is not copied from other work. The court
promoted the doctrine of “sweat of the brow”.

As per the understanding of the jurisprudence of ‘original’ work in the light of copyright laws in
different jurisdiction. It has become important to delve into the question of whether work
generated by Artificial Intelligence can be considered as ‘original’ as per the laws of copyright. In
the US jurisdiction, “only works created by a human can be copyrighted under United States law,
which excludes photographs and artwork created by animals or by machines without human
intervention”xxiv which means that the office of IP controller could reject the claim if the work has
been produced by the AI on the grounds of absence human intelligence” xxv. Whereas in UK
copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), which states “In
the case of a literary, dramatic, musical or artistic work which is computer-generated, the author
shall be taken to be the person by whom the arrangements necessary for the creation of the work

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are undertaken.”xxvi The contrast in US and UK jurisprudence on AI and originality of the work
with respect of copyright has been in debate among the legal agents all around the world. In India,
the legislature has been silent on in it and so is the judiciary.

It is important to come to realization that AI is not just a machine anymore which functions as
per the set parameters. It is true that it is being programmed to adapt the data and adept its pattern
formation, but the analysis of it is same as the functionality of a human brain. AI analyses the data
and produces output according to its findings and patterns. The argument against the absence of
originality with respect to the AI work can be nullified by the famous debate with the AI website
“The Next Rembrandt” which analyses the work of Rembrandt Harmenszoon Van Rijn the Dutch
painter and produces new paintings. The arguments in against delve into the concept of originality,
the final painting produced by the Next Rembrandt is nothing more than reproduction of the work
of Rembrandt the painter. Although, one needs be cognizant on few of the facts, which are:
• The website of the AI gives a detailed description of the functionality of the AI along with
the testimonies of the programmers that the end results where unpredicted for any
reasonable and knowledgeable person.xxvii
• This work cannot be construed as compilation like mentioned in the case of Eastern Book
Company v. D.B. Modakxxviii, herein, the end results is novel on the basis of analysis.

The reservation against granting the right of copyright originates from the standpoint of the
concept of originality in copyright law. Nevertheless, if the functionality of the AI can draw a
parallel with a human brain then one can understand that even a human like AI creates work based
on emotions, memories, and cognitive analysis. Humans whose work are considered original with
respect to the copyright laws, are also a subject of consuming data which had been pursued by
various forms of transactions. A human brain also consumes knowledge (or data) by the medium
of newspapers, books, journals, paintings, visuals representations (movies), music, and through
procurement of educational course.

More often than not the legal systems have had to push themselves to incorporate the
technological advancements that have occurred across the decades, even after the industrial
revolution brought with the introduction of steam engine, among others, the policy makers had to
think about these changes. However, it would be appropriate to say that the discussion around the
same have begun across the various legal frameworks of the world. For instance, the legislators
of Estonia have been strongly leaning towards having the society adjust to the generous and

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pervasive use of AI technologies and suggest assigning a legal personality to AI for this purpose xxix.
The Indian jurisprudence must make an assessment with regards to the magnitude of the
challenges that AI systems pose to the IP laws. Though it would be safe to claim that the present
Indian laws could itself encompass such granting of ownership by simply broadening their
interpretation and making it more flexible. A word of caution is requisite at this moment as the
lack of singularity, the ramifications of such altered laws would have to be evaluated with far-
sightedness. The nascence of this subject beckons to the study of the moral and economic
connotations attached to the novel technology and its rights. A future where robots like Sophia
are given citizenshipxxx and the Indian Constitution envisaging the availability of fundamental
rights to “persons” not limited to just the humans, it is imperative that the Indian legal framework
see the nuances of IP rights beyond the criterion of human creativity. Moreover, in the given rise
in usage of IP as assets in business models it has become imperative to cover Artificial Intelligence
within the scope of Intellectual Property Rights. In the Indian context, the authorship and
originality of the work is interpreted by the doctrine of ‘sweat brow theory’ similar to UK
jurisdiction, in furtherance, UK jurisdiction has started advancements towards accepting the work
of AI under copyright laws under the co-authorship, the same discourse shall be followed by India.
This will further protect the rights of such copyright against infringement as AI is a self-developing
intelligence and could detect its copyrighted content on the internet.

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i Copyright Act 1957, s 17
ii Emily M. Bender and Alexander Koller, ‘Climbing towards NLU: On Meaning, Form, and Understanding in the
Age of Data’, (2020) https://openreview.net/pdf?id=GKTvAcb12b
iii Jonathan Siderits, ‘The Case for Copyrighting Monkey Selfies’, (2016) 84 U. Cin. L. Rev. 327, 331, 336–37
iv17 U.S. Code, s 101
v Cmty. for Creative Non-Violence v. Reid [1989] 490 U.S. 730, 737
vi Urantia Foundation v. Maaherra [1997]114 F.3d 955 (9th Cir.), 958
vii See Bleistein v. Donaldson Lithographing Co. [1903] 188 U.S. 239, 250
viii Feist Publications, Inc. v. Rural Telephone Service Co., Inc. [1991] 499 U.S. 340, 345
ix Nat’l Comm’n on New Technological Uses of Copyrighted Works, Final Report 46 (1979)
x Copyright, Designs and Patents Act 1988, s 178
xi Copyright, Designs and Patents Act 1988, s 9(3)
xii Copyright Act 1957, s 2(d)(vi)
xiii Copyright Act 1957, s 17
xiv Feist Publications, Inc. v. Rural telephone Service Co. [1991] 499 U.S. 340
xvBrigitte Vézina & Brent Moran, ‘Artificial Intelligence and Creativity: Why We’re Against Copyright Protection for

AI-Generated Output’ (Creative Commons, 10 August 2020) <https://creativecommons.org/2020/08/10/no-

copyright-protection-for-ai-generated-output/>
xvi Annemarie Bridy, ‘The Evolution of Authorship: Works Made by Code’, (2016) 39 Colum. J.L. & Arts 395,

<https://www.princeton.edu/<diff>ota/disk2/1986/8610/8610.PDF [https://perma.cc/XUV3-E979]>
xvii Copyright, Designs and Patents Act 1988, s 10
xviii Design Data Corporation v Unigate Enterprise Inc. 847 F.3d1169
xix Copyright Act 1957, s 2(z)
xx Ameet Datta and Suvarna Mandal, “‘Originality’ concept under India’s copyright regime”, Indian Business Law

Journal, < ‘Originality’ concept under India’s copyright regime | Law.asia. >
xxi (2008) 1 SCC 1.
xxii 499 U.S. 940 (1991).
xxiii [1900] AC 539.
xxiv Supra citation 4.
xxvTodd A Carpenter, “If My AI Wrote this Post, Could I Own the Copyright?”, The Scholarly Kitchen, < If My AI

Wrote this Post, Could I Own the Copyright? - The Scholarly Kitchen (sspnet.org). >
xxvi Supra citation 11.
xxvii< https://www.nextrembrandt.com/ >
xxviii Supra citation 2.
xxix < https://www.loc.gov/law/foreign-news/article/estonia-government-issues-artificial-intelligence-report/ >
xxx Zara Stone, ‘Everything You Need To Know About Sophia, The World's First Robot Citizen’ (Forbes, 7 Nov

2017) < https://www.forbes.com/sites/zarastone/2017/11/07/everything-you-need-to-know-about-sophia-the-

worlds-first-robot-citizen/?sh=23b59546fa14 >

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