ABSTRACT
The rapidly growth of Artificial Intelligence in the area of medical science, transportation, aviation, space, education, entertainment and other many sectors has been changing our day to day lives. The intellectual property rights also been impacted by the emergence of Artificial intelligence. The role done by AI in the area of creation and innovation is been getting recognition worldwide. AI has significant role to play particularly in the field of copyright, patent, designs and trade secrets among various types of IPRs. AI can now compose music, write blogs, novels. Poetry, generate paintings and drawings.
AI has created a major concern on and created a significant challenge in the area of intellectual property rights more particularly in copyright law. The present article deals with how AI is an important in producing creative works which included arts, music, poem, novels among other things. This article focuses on the legal view in several countries and deals with several models.
Key words: Copyright, Artificial Intelligence, Global Perspective, ownership.
INTRODUCTION
ARTIFICIAL INTELLIGENCE (AI) has taken on crucial significance in the modern era since its application has become unavoidable in the majority of the technological sectors. AI has revolutionized our lives by penetrating into different industries like heath, transport, aviation, space, education, entertainment industry (music, art, games, films) and others. Prof Stephen Hawking once prophesied that “the development of full artificial intelligence could spell the end of the human race”. He also added that “it would take off on its own, and re-design itself at an ever-increasing rate” and “humans, who are limited by slow biological evolution, couldn’t compete, and would be superseded”.
Interestingly enough, the Google AI system is now advanced that it has birthed a child of its own. The child AI is trained by the parent AI, the parent AI, functioning as a controller, tests the performance of child AI. This received information is utilized to enhance the performance of the child AI. This activity is repeated thousands of times in order to enhance the effectiveness and advancement of the child AI. In the recent past, the OpenAI, a US-based artificial intelligence laboratory launched a new AI called GPT-3 which learned “the ins and outs of natural language” through the analysis of thousands of online books, the breadth and length of Wikipedia, and close to a trillion words published on blogs, social media and the rest of the web”.
ARTIFICIAL INTELLIGENCE
The name “Artificial Intelligence” was first used by John McCarthy in 1956. There is no legal definition of “artificial intelligence.”. Ray Kurzweil in 1990 defined AI as “the science of making computers do things that require intelligence when done by humans”. AI generally describes the “ability of machines to perform cognitive tasks like thinking, perceiving, learning, problem-solving, and decision-making”. As per Russ Pearlman, “the central goals of AI include reasoning, knowledge, planning, learning, natural language processing (e.g., understanding and speaking languages), perception, and the ability to move and manipulate objects”.
WIPO CATEGORIZATION
The WIPO specified three categories of AI systems are – (i) “expert (or knowledge-base) systems”; (ii) “perception systems”; and (iii) “natural language systems”. The base of AI is “artificial neural networks” that are “brain-inspired systems that are designed to imitate the way the human mind learns”. “Machine learning” and “deep learning” are thus, two subcategories of AI. For machine learning purposes, there exists an inherent algorithm in the computer program which “enables it to learn from input data, and to develop and make future decisions” either independently or on direction. That is, the machine learning algorithms pick up from the programmer’s given inputs to create something new by forming its own independent judgments.
Two types of creative works can be created by the use of AI – (i) “AI-generated” work; and (ii) “AI-assisted” work. The works generated by AI which are also termed as “generated autonomously by AI” speak of the generation of a work by AI on its own.
ARTIFICIAL INTELLIGENCE AND COPYRIGHT
There has been a widespread application of computer programs in the creation of copyrighted works since the 1970s. The works generated by computers did not pose much issue regarding copyright. The reason was that computer programs were regarded as mere tools to assist the activities. The products of AI will be eligible for copyright protection in all the jurisdictions on account of being original. The condition of application of “skill and judgement” to be original may be considered to have been fulfilled by reason of the “programming and parameter on which such AI actually compiles and creates the work”. There will be no author, however, in case of AI work. If it is a work aided by AI, then there is human intervention. Thus, if it is a case of latter, the individual who made the work get generated by utilizing artificial intelligence can declare himself to be the author, but the same is not applicable when the work has been generated by AI itself without any human intervention. The question of authorship in such works has been perplexing all nations of the world.
There can be three general possibilities in regard to the issue of authorship – (i) authorship must be recognized for AI under the copyright regime; (ii) there must be no authorship for AI-generated work and the work must go into the “public domain”; and (iii) there must be sui generis law instead of copyright law to give protection to such work.
The protection of copyright is a motivation to the author to create more original work through his skill, labor and judgment. If the AI is considered as an author and the AI-created work is copyrighted under the law, then it would imply that “human creativity” and “machine creativity” stand at par. On the contrary, if works created through AI are not given protection under copyright law, then it would only mean that machine creativity will be given priority over human creativity.
Another problem is that if the work generated by AI happens to be “substantially similar” to a prior work which could have copyright, then how will the AI be held as an infringer in this situation? Moreover, if AI is equated with an author, it shall not be entitled to assign ownership in the work, in the absence of personhood. The doctrine which emanates from civil law nations like Germany, France and Spain stipulates that the work produced has to have the “imprint of the author’s personality”.
It is interesting to note that the copyright laws of most nations also grant moral rights to the author, although this is not a requirement under the TRIPs Agreement.Two moral rights – (i) right of paternity; and (ii) right of integrity are typically granted to the author. The first guarantees the author the right to be identified with his/her work and credited as its author, while the second allows the author to recover damages for mutilation or distortion of the work should that be detrimental to his/her honour or reputation.
In Amar Nath Sehgal v. Union of India, the Delhi High Court noted that “in the material world, laws are aimed at safeguarding the right to fair remuneration. But life transcends the material. It is temporal too. Most of us believe in the soul. Moral rights of the author are the soul of his creations.”. The creator has a right to maintain, defend and cultivate his works by his moral rights”.
The AI does not perish like a human. It can be argued, however, that the term can be measured from the publication date for 50 or 60 years depending on the countries’ laws. Granting copyright protection to AI in the case of AI-created works is contentious on the basis that a human being is mortal and fatigues while working. Thus, a human writer produces few works in his/her lifetime in which a copyright exists, and the copyright is warranted since his/her labor is to be rewarded. An AI, however, is immortal, does not get tired and can produce any number of works. Granting protection under copyright to works created by AI is thus “equivocal and disputable”.
Yet another perspective that arises from the debate is that there cannot be authorship in AI-generated content and the work thus created cannot be anything but placed in the “public domain”.
There are various reasons why the AI-generated works should be placed in public the domain. One of the grounds is that during the creation of a work using AI, it incurs no expense, thus it is perfectly reasonable to offer the AI-generated work to the public at large without any charges. Secondly, AI can easily create any number of versions of work produced by it at zero additional cost or effort. Lastly, but not the least, one of the purposes of the copyright law is to give incentive to the creator of the work in the sense of granting him economic rights and moral rights in order to encourage him to create more works for the benefit of society. The AI, not being human does not need any such encouragement to generate the work. One must, however, also keep in mind the point that if there is no safeguard to AI-created work and the public is able to utilize such work without obtaining any permission or paying any fee, it can prove to be a death blow to such companies which have a massive investment in the AI system for creating these works.
INTERNATIONAL PERSPECTIVE IN COPYEIGHT LAWS IN THE EMERGENCE OF AI:
United Kingdom: The UK Copyright, Designs and Patents Act, 1988 deals with computer-generated work. “Computer-generated” work is defined in CDPA to mean that “the work is generated by a computer in circumstances such that there is no human author of the work”.The rationale for such a provision is “to make an exception to the requirement of human authorship in order to give proper recognition and protection for the work that goes into producing a program capable of generating works independently”.
Under section 9(3) of the CDPA, the author in the case of a “literary, dramatic, musical or artistic work which is computer-generated” is to be “taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.
Andres Guadamuz mentions that authorship in such a situation belongs to the programmer rather than the user. He substantiates this argument by citing, Microsoft which created the computer program “Word” so that the user could produce their own work. Microsoft cannot own a copyright on a work that has been produced by the user using that program.
In Express Newspapers plc v. Liverpool Daily Post & Echo, computer was held to be a tool like a pen.
United States of America: United States, the owner of a work created with the assistance of AI can enjoy copyright if he/she makes it clear that the AI program was utilized as a tool/medium while creating the work.
In Naruto v. Slater, commonly referred to as “Monkey Selfie” case, the United States court ruled that the monkey could not be considered the author of the selfies it took. Copyright in a work can only be bestowed upon a human author and not on animals and machines in the U.S.
Indians Laws:
Indian Copyright Act does not specifically define “computer-generated work” as CDPA does. It does define “author” with respect to “any literary, dramatic, musical or artistic work which is computer-generated” as “the person who causes the work to be created”.
In Camlin Pvt. Ltd. v. National Pencil Industries, Delhi High Court explicated the term “author”. The Courts ruled that “mechanically reproduced printed carton” was not a copyright subject matter for the reason that one could not establish who the author of such carton was. The Court continued to say that “copyright is conferred only upon authors or those who are natural person from whom the work has originated.”.
In Tech Plus Media Private Ltd v. Jyoti Janda, the Delhi Court held that “the plaintiff is a juristic person and is incapable of being the author of any work in which copyright may exist”. The Court further stated that the plaintiff, however, could become the owner of the copyright in the work under a contract with its author.
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
WRITTEN BY SHIVRANJNI
