.
v 1.3 | 15 APRIL
2025
This working draft considers
the interaction of Indian 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
1. Authorial Dependences
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.[1]
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’ [2] while the latter is defined as ‘a piece of equipment with several moving parts
that uses power to do a particular type of work’.[3] 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.[4]
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.
2. Privilege and Discrimination
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 [5] 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.[6] 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.[7] 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.
3. Anticipating AI
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.[8] 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.[9] 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,[10] indicate that the authors of artistic works must always be human,[11] and assert that only human beings can be authors of literary works.[12]
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 [13] while the practice manuals allow ‘producing companies’ to be named as their authors.[14]
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.
It is important to determine who the authors of potentially copyrightable works are 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.[15]
4. Acknowledged Authorship
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, [16] 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.[17]
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, [18] 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. [19] 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.” [20] 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.
One possibility may be to consider authorship not in positive terms attempting to recognise it with reference to the use of technology but in negative terms describing when authorship would not be acknowledged by law with reference to the context in which content is created; as Elena Cooper has pointed out: “…the challenges to authorship may stem from the objectives of particular practices, informed by their context (e.g. online community resource as opposed to art gallery display), rather that the use of digital technology per se.”[21]
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, [22] 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.
5. Creative Processes
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, [23] 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, [24] while literary, dramatic, musical, and artistic works must be original to be protected by copyright, [25] 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, [26] and in a compulsory licence which allows for-profit operations. [27] 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.
6. Tools and Tasks
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 data, 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 serviceably addressed by drawing on not just
various extant statutes which deal with the issues at play but also by drawing
on tort and, where criminal offences have not been alleged to have been
committed: contract law to examine if there were any way to justify what would
otherwise be unjustifiable rights violations.
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.[28]
Further, the mere harmonisation of a melody, it could be argued, does
not merit copyright protection by itself given that it must, in order to sound
sonorous to the human ear, abide by the rules of music theory. This leads to
the development of a situation where it is not obvious who the author of the
content should be considered to be or, for that matter, whether the content
brought into being is copyrightable at all.
Other
forms of computational creativity also raise similar concerns. Consider AI used
to develop recipes either autonomously or semi-autonomously upon having been
fed a range of recipes developed by humans along with rules drawn from hedonic
psychophysics, a field which explores what appeals to human beings: although
the AI could be used to autonomously create recipes, it is almost certain to
function much better than in collaboration with human beings who know how to
cook. Alexandra Kleeman described how she ‘cooked some eggplant
fritters that made convenient use of every sad, wrinkling root’ in her refrigerator
using AI named Chef Watson to help combine an unlikely assortment into
the ingredients of a recipe.[29]
Making the best use of leftovers and assorted remnants of vegetables is, of
course, not a new task: women have been doing so for centuries, if not longer.
Not once in history does there appear to have been a concerted push to
recognise the practice as worthy of consideration as labour which should be
renumerated, much less as a practice which results in the creation of recipes
which should, arguably, be worthy of intellectual protection. However, the
insertion of computational creativity into what would once have been primarily
a domestic chore, and the commercial opportunities AI presents by urging humans
to think along new lines to develop recipes not just with leftovers but with
unusual combinations of ingredients, has changed the equation. Although no-one
may be entirely certain of what the intellectual property rights position of
content – in this case: recipes – generated either by or with the help of AI
should be, it is certain that AI has breached the domestic arena, bringing such
issues, likely inadvertently but nonetheless firmly, into the realm of academic
discussion, [30]
by raising questions about the authorship, ownership, and commercialisation of
so-called women’s work.
The
ambiguities associated with computational creativity and copyright law are not
new. They tend to echo old uncertainties relating to the difference between
‘tools’ and ‘machines’, and the reluctance to treat ‘women’s work’ with any
degree of respect, 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] Pope, Alexander, trans. The Iliad of Homer. W. Suttaby, 1806. https://archive.org/download/homeriliad00home/homeriliad00home.pdf.
[2] “Tool.” https://dictionary.cambridge.org/dictionary/english/tool.
[3] “Machine.” https://dictionary.cambridge.org/dictionary/english/machine.
[4] Copyright Act (India) 1957, s 15.
[5] Copyright Act (India) 1847, https://web.archive.org/web/20160304212712/http://lawmatters.in/wp-content/uploads/2014/04/Indian-Copyright-Act-1847.pdf
[6] Evelyn-White, Hugh G, trans. Hesiod: The Homeric Hymns and Homerica. 1914. Reprint, William Heinemann, 1929. https://archive.org/download/hesiodhomerichym0000unse/hesiodhomerichym0000unse.pdf.
[7] Francis, James A. “Metal Maidens, Achilles’ Shield, and Pandora: The Beginnings of ‘Ekphrasis.’” The American Journal of Philology 130, no. 1 (2009): 1–23.
[8] “Timeline of the 3D Printing History - ASME,” https://www.asme.org/topics-resources/content/infographic-the-history-of-3d-printing.
[9] Copyright Act (India) 1957, s 2(d)(vi).
[10] “Practice and Procedure Manual 2018: Musical Works.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/MUSICAL_MANUAL.pdf.
[11] “Practice and Procedure Manual 2018: Artistic Works.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/Artistic_Manual.pdf. In explaining how to fill the application for copyright registration, the manual states: “Correct and appropriate details of the Author (the person who has actually authored or was involved in the authoring of work. There can by more than one persons who can jointly and severally be the author of a work. A firm/organization cannot be an author of work by no means; this column shall always be filled with the name & details of a person.”
[12] “Practice and Procedure Manual 2018: Literary Works.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/LITERARY_MANUAL.pdf.
[13] Copyright Act (India) 1957, s 2(d)(v).
[14] “Practice and Procedure Manual 2018: Sound Recordings.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/SOUND_RECORDING_MANUAL.pdf; “Practice and Procedure Manual 2018: Cinematograph Works.” Copyright Office, Government of India, 2018. https://copyright.gov.in/Documents/Manuals/CINEMATOGRAPH_MANUAL.pdf.
[15] Copyright Act (India) 1957, s 17.
[16] Copyright Act (India) 1957, s 2(d)(i).
[17] Copyright Act (India) 1957, s 2(d)(v).
[18] Saikia, Nandita. “The Bollywood Amendments: Film, Music and Indian Copyright Law (2010 to 2012).” SSRN Electronic Journal, January 1, 2010. https://doi.org/10.2139/ssrn.1566350.
[19] Buccafusco, Christopher. “A Theory of Copyright Authorship.” Virginia Law Review 102, no. 5 (2016): 1229–95.
[20] Microfibers Inc. v. Girdhar & Co., High Court of Delhi, RFA (OS) NO.25/2006, 28 May 2009.
[21] Cooper, Elena. “Reassessing the Challenge of the Digital: An Empirical Perspective on Authorship and Copyright.” In The Work of Authorship, edited by Mireille van Eechoud, 175–214. Amsterdam University Press, 2014.
[22] Saikia, Nandita. “Viewing Copyright Policy Through Music and Injury” April 1, 2022. https://copyright.lawmatters.in/2022/04/viewing-copyright-policy-through-music.html.
[23] Copyright Act (India) 1957, s 14.
[24] Copyright Act (India) 1957, s 13(3).
[25] Copyright Act (India) 1957, s 13(1)(a).
[26] Copyright Act (India) 1957, s 52(1)(zb).
[27] Copyright Act (India) 1957, s 31B.
[28] Saikia, Nandita. “Priorities and Power: An AI Governance Proposal” January 13, 2025. https://copyright.lawmatters.in/2025/01/priorities-and-power-ai-governance.html.
[29] Kleeman, Alexandra. "Cooking with Chef Watson, I.B.M.’S Artificial-Intelligence App." The New Yorker. November 20, 2016. https://www.newyorker.com/magazine/2016/11/28/cooking-with-chef-watson-ibms-artificial-intelligence-app.
[30] Somaya, Deepak, and Lav R. Varshney. “Ownership Dilemmas in an Age of CREATIVE MACHINES.” Issues in Science and Technology 36, no. 2 (2020): 79–85.
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.