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AI And Copyright Navigating Legal Challenges And Ownership In The Digital Era

ABSTRACT

This article explores the AI framework in different jurisdictions in the context of AI-generated work. It delves into the realm of challenges faced by authorship, ownership, and fair use. In the context of US legislation, authorship is currently granted to the work done by humans and it lacks the protection of AI generated work. On the other hand, the EU has adopted several reforms for the incorporation of AI-generated work in the domain of IPR. In the current scenario, it grants the authorship to the AI generated work in which the human touch is present in a significant amount. Each jurisdiction faces the problem of balancing the problem possessed by the AI-generated work and continuously working towards fixing it.

INTRODUCTION

In 1956, the idea of AI was initiated at the Dartmouth Conference by John Macarthy. This conference coined the term Artificial Intelligence[1].  At present, there is no established legal definition for the word AI. The main aim of creating AI was to stimulate machines like humans. In other words, AI can be defined as machines that can act in a certain way that people would say requires intelligence. In this era, the term AI describes a variety of technologies that we use today to power many services and goods. AI is the power of computers capable of doing work like humans like solving complex tasks such as reasoning, making decisions, or solving problems. AI is an umbrella that holds a variety of technologies like machine learning, natural language processing (NLP), and deep learning.

In the 1950s, computers majorly worked as large-scale calculators. Also, when organizations like NASA needed calculations like the path of a rocket, then they relied on a team of women tasked with solving the equations.  Before the machines became the computing device, a mathematician and a computer scientist predicted the possibility of AI. At that time AI originally began[2]. In the era when computing powers relied on the human brain, the English Mathematician Alan Turning visualized a machine can advance far past its real program. According to Turning the computing machine would initially be coded to work according to the provided program but it could also be expanded beyond its real function. Unfortunately Turning lacked the technology to prove his theory, but he is credited for the idea of the creation of AI. He also developed the ‘imitation game’ which measures whether the machines are capable of thinking on par with the humans. It is more popularly called the Turning Test.

PURPOSE OF COPYRIGHT

Copyright is defined as the legal rights of the intellectual property right holder. The right to copy is also described as the copyright. It gives the idea that real creators of the products and those permitted to use them have the exclusive right to use or reproduce the work.  Everyone is the copyright owner unless they create their original work[3].  Besides works, other agencies can also be copyright holders like companies, organizations, and other people. Copyright law allows the ownership of ‘work made for hire’ which means that the work created by the employee is part of his/her job and is owned by the employer.  When someone creates the original work that requires mental activity to create that work is called intellectual property. Copyright is granted to avoid the unauthorized use of work without the creator’s consent. There are various examples of uniquely created work i.e. novels, poetry, art, computer software, film, graphics designing, etc. Copyright is the tool that is used to safeguard the created work. Anyone who has the copyright of a work directly becomes the owner of that work.[4] The protection of copyright work directly originates from the US Constitution[5] Article 1, section 8.  The framers of the copyright believed that securing the rights of the creator would promote the science and arts. The main aim of the copyright is to reward the creators, through the laws of property rights, for making unique work and to make them available for the use of the public for good. It is said that the main aim of this copyright is to protect the creator’s interest from theft and give the exclusive rights to the owner of the intellectual property to do any business with their innovation.

From this concept, the creator receives the economic benefits, and in return, the public will receive the benefit of their creative work.   Copyright law is meant for the benefit of the public but it does not force the creator to share their work with the people for the public work. Therefore, it is said that the unpublished work that never came to the use of the public will receive the same protection that the published work that came to the use of the public receives. The existence of copyright exists far beyond the protection of the interest of authors/creators. It exists as a means to promote the development of science and useful arts.[6] It allows for the exchange of how the work can come into use. For a limited time, the creator gains the monopoly of exclusive rights. After the completion of the limited time the work is available for the use of public domain. It aims to balance between the creator and the public. The federal government registered the copyrighted work through the copyright office and thus the laws of copyright are regulated. Copyright infringement is the most commonly litigated issue in the copyright laws. disputes that are registered regarding the violation of exclusive rights granted under copyright law, such as replicating the works of the creator are filed in the Federal Preemption. The two major requirements required to meet the standard of copyright law are originality and fixation.[7]

There are a few exceptions to the copyright and one is common creative. It is a set of licenses that allow the author to decide how the public can use their intellectual property and for which purposes. This led to the decision of what use their innovation could be made. In total, six available licenses are made up of Attribution.[8] The credit should be given to the author for their work, and those guidelines include whether the work can be modified, whether it can be used for gain, and whether fresh works created from it must have an identical Creative Common license.

HISTORICAL DEVELOPMENT OF COPYRIGHT RULE IN THE UK

The past of copyright laws dates back to the invention of the printing press where it was possible to duplicate the created work mechanically and fastly. The printing press was invented by John Gutenberg in 1440 in Germany. In the year 1443, the idea of the printing press reached England, and King Richard III removed the ban on the trade of manuscripts and books. This resulted in the authors transporting their books for printing in England. They started the royal license propagation of books, sooner the England converted into the center of printing across Europe. In the year 1529, King Henry established the system of privilege, which resulted in making the printing business the monopoly of that time of the crown. This was the time when the individuals who were tangled in writing the manuscript and creating the copies came together to build the Stationer’s Guild. It was constituted into a company in the year 1516. The associate of the company had the sole right to reprint works in continuity in the name of other members of the business who have exclusive rights to share the work.

LICENSING ACT

Act of 1662

This act enabled the stationary company to proper action for the breach of their rights. Certain designated members were appointed to maintain the register of licensed books. The members had the right to seize or to proceed with the search of unlicensed books. This was the first act to monitor the plagiarism. This move did not survive the test of time. With time the system deteriorated and the ban on unauthorized material was removed. This resulted in the entry of self-governing printers in the market. The Licensing Act failed to differentiate between intellectual and mechanical work. It was finally removed in the year 1681[9].

STATUTE OF ANNE

On 10th April 1710, the statute of Anne was introduced. In the copyright world, this act caused a drastic shift. This statute recognized the rights of authors of intellectual work. It eventually came to be known as the ‘world’s first copyright law’. There was a two-fold purpose of this act-

  • To encourage learning
  • Grant the authors protection from plagiarism of intellectual property.

Important laws of this Act

  1. The author whose book is not yet printed will have the right to print for 14 years, and if the author is still alive then it will be extended for again additional 14 years.
  2. The violator would surrender the infringing material found in their possession and will be liable to pay the half amount as a fine to the king and the other half to the person to whom the rights had been infringed.
  3. No book can be bought for violating the laws unless its heading has been catalogued in the ‘Register Book’ of the Stationer’s Company before it was printed.

THE COPYRIGHT ACT OF 1911

Before the advent of this act, books and literary works were protected under the Statute of Anne where as other art such as paintings and photographs were protected under the Legislation of Engraving Copyright Act 1734.[10] The act of 1911 combined all the acts into a single act and this called as Berne Convention.

The main features of this act were

  • It increases the period of copyright till lifetime.
  • Need not for pre-registry in the ‘Register of Stationers’ to get defense under the act.
  • Protection extends to unpublished works.
  • Instantaneous remedies in suits of violation of rights.
  • This act included all forms of art including literature, paintings, and photographs.

DEVELOPMENT OF COPYRIGHT LAWS IN THE INDIAN CONTEXT

In the era of pre-Independence India, the Copyright Act was legislated by the British government, and like other act acts it was limited to English laws. In the year 1847, in India the first copyright laws were enacted. The period of the copyright extends to full life of the author including seven years or 42 years. The administration had the privilege to grant the licenser if the author died if the owner of the copyright refused permission. The highest civil court has the jurisdiction regarding the infringement of the suit. It was replaced by the Copyright Act of 1914.

LEGAL CRITERIA FOR COPYRIGHT LAWS

Top of Form

Bottom of Form

AI is defined as the development of a computer system that can perform the work that requires human-like intelligence by Turning. In the past few years, there has been a hassle for the recognition of the legal rights of works generated by AI, especially in the field of copyright. The fast development and advancement of AI-generated work have put forward the question regarding the legal status and the protection of computer-generated work. AI has become the backbone of numerous companies that transformed various aspects of human life. [11] Certainly, humans have evolved the copyright laws that protect them from unwanted intrusion in their intellectual works. Thus, the author must be identified for granting of copyright. Granting copyright to the author depends on two major criteria i.e. the first criterion enables the benefits to the author for the financial gain from his creation and the second includes moral rights which include the right of paternity ultimately it allows the author to be known by his name.

AI And CopyrightIf the AI completely does the work and lacks the human touch or authorship, so there is no copyright protection granted, and thus no people can own the copyright of AI-generated work as it falls in the public domain. The work created by AI; the US copyright office will not register any work. It states that this work belongs to the public and is not made by individuals. If the work is created by both human authorship and AI-generated for example AI is creating the parts and humans arrange them in order, the parts that the human did that only parts the human owns. In the landmark judgment, the U.S. district court held that AI-generated work falls outside the purview of copyright laws. The rationale of Lordship Howel is that copyright is based on the innovation done by humans and not by AI. The sole purpose of the creation of copyright laws is for the protection of human work not for computer-generated work. [12] Current Legal Stance on AI-generated work

APPROACH OF EU ON COPYRIGHT WORK

The EU is at the lead at evolving laws relating to the problems posed by AI in numerous sectors. Copyright Directive is the chief legal outline for copyright in the EU, which was newly modernized in the year 2019[13]. This instruction to create harmony and modernize the copyright laws across the associate states of the EU. Under this directive the copyright is granted only to created work, including those created by artificial intelligence system, providing it should match up with the standards of uniqueness and imagination. But, this directive do not clarify the owner of the copyright created by Artificial Intelligence. In the absence of legal provision under this directive, the ownership is governed by the existing legal provision, which generally characterizes ownership to the human who created the work. To solve this matter, the EU government has planned a new legal outline for IP rights of Artificial Intelligence generated work that includes the copyright. The new outline will provide copyright defense to AI-generated work. Still, it will put it in the group of ‘Artificial Intelligence authorship’ that could be obtaineds by the designer or the operator of the ai system, rather than the natural individual who shaped the work. This pitch is yet to be accepted and is under the process of review.

EXAMINATION OF EU COURT’S DECISION ABOUT AI COPYRIGHT.

The European Union copyright rules are not articulated with Artificial Intelligence generated works. One popular case in which a painting was produced by an ai was decided by the High Court of Whales and England, in which a bunch of artists used the artificial intelligence algorithm to make the painting and exhibit it for sale. The court apprehended that it was the Author’s copyright on the painting, who created the AI system because the creative ideas according to which the AI algorithms were made were their idea. [14]

Another related case was the ‘Next Rembrandt’ in which a bunch of artists used the Artificial Intelligence process to generate a painting in the style of Rembrandt[15]. It was showed and traded. The question ascended as to who possesses the copyright of this work. In this circumstance, the court had not to decide who possesses the copyright as the painting was made as a advertising crusade and was not planned to be vended as the original piece of work. In a nutshell, these cases highpoint the need for the explanation of the laws related to the possession and safety of ai generated work under current copyright rules.

EXAMINATION OF EU’S APPROACH TO COPYRIGHT OWNERSHIP AND EXCEPTIONS

The makers of laws in EU have been vigorously involved in finding the ways to approach copyright ownership and exceptions that falls within domain of AI-generated work. The present scheme of copyright regulations generally gives guard to the natural inventor of the work, not the machine-based work. It becomes more multifaceted when they have to decide the copyright of Artificial Intelligence generated work.

In 2019, the EU released the report on ‘IPR for enhancement of AI Technology,’ which comprised the reference for the EU approach to copyright ownership and exceptions[16]. Among many other recommendations, a new legal status has to be created for AI generated work. This would permit for the acknowledgment of copyright to non-natural objects. This technique will make sure the clearness of the proprietorship of the Artificial Intelligence generated work and commercialization of this work. This report also acclaims for the introduction of the TDM i.e. text and data mining in the background of AI. TDM is the procedure used to excerpt the large quantity of data and to find patterns and extract the understandings. This exception would permit for the usage of copyrighted work deprived of the permission of the copyright holder for TDM. In October 2020, a resolution was accepted by the European Parliament on IPR for the advancement of AI technology, which was based on the recommendation adopted in the report of European Commission 2019[17]. The resolution states the necessity for a legal outline that talks the problem posed by artificial intelligence, which includes ownership of copyright, liability, and accountability. The final aim for this determination was to demand a new legal outline that recognizes the specific characteristics of AI-generated work and delivers strong rules of ownership and liability. This resolution suggests that copyright defense of AI-made work should be attributed to an organization or person that has made a notable participation in the building of work, rather than AI system itself. This resolution also stresses the impression of a compulsory labeling system for AI-generated works, to safeguard transparency and enable the user to categorize the source of the work. This labelling system also offers insights into human participation in the formation of the job. Furthermore, while ensuring the copyright matter, the EU has planned the Artificial Intelligence Act (AIA), which was ushered in 2021. This act aims to advance and deploy AI technology in the European Union, that safeguards the citizen’s work. AIA recommends the provision on transparency, liability, and human error of AI systems, as well as compulsory danger calculation for certain risky AI application[18] [19].

APPROACH OF US IN COPYRIGHT LAWS

The protection under copyright in US legal framework provided to real work of authorship secure in any touchable medium of expression. These included the literary, musical and artistic work, among others. In US legal outline also, there is no clear laws which address the copyright of AI-generated work. Copyright Act of 1976 is the new laws in the US, that has been edited numerous times since its enactment. In this copyright law, the ownership of the work is granted to the natural person or the work is created by the natural person. A work done during employment is labelled as the work done by the employee and that is the during the tenure of his/her course of service. Section 201 (b)[20] of this copyright act states that  work made by the employee in the course of his or her employment is considered as the work of employer. So, this means that the work created by the AI in the course of the employment by the employee for the employer that work will be considered as the work of the author.

EXAMINATION OF THE DECISION OF US COURT ABOUT AI COPYRIGHT.

With the time the US court have also grappled with the question for determining the author of AI generated work. In the case of Naruto vs Slayer, where a monkey had clicked the selfie of its have claimed the copyright of that picture, then the Ninth Circuit of Appeals decided that the animals does not hold the copyright of particular things and that photograph lies in the public area. In the south district of New York, it was questioned that the whether the AI system could become the owner of the AI generated work, the facts of the case is that DABUS[21], the AI system has created the two inventions and he was claiming the sole ownership of those two inventions, the USPTO overrule the application and stated that under the current US law only natural person could be granted as the copyright benefits. The USPTO’s decision was upheld by the court which reasoned that by reading the language of the current act, the copyright can only be granted to the natural person.

In another case of Sarah Anderson, Kelly McKernan, and Karla Ortiz v. Stability AI Ltd., Midjourney, Inc., and DeviantArt, Inc., a class action was filed by the plaintiff where they alleged for vicarious breach of copyright, breach of Digital Millennium Copyright Act (DMCA), infringement of statutory and common law rights of publicity, breach of unfair competition law, and declaratory relief. This case revolves around the defendant’s AI product image called it as Stable Diffusion, this downloads the new image based on the millions of copyright image available on the source. It was argued that the use of others IP and plaintiff’s too degraded their artistic profession and value[22].

EXAMINATION OF APPROACH US ABOUT OWNERSHIP AND EXCEPTIONS

As per US copyright law, the authorship is only granted to the author of the work, one who transfer its right to different people (17 U.S. Code § 101). Several restrictions are imposed on the original work of the author by the US copyright law which regulates the limited use of copyright material for several purposes like criticism, commentary, reporting of news, etc (17 U.S. Code § 107). While identifying the need for leadership on the registration of copyright of works having AI-generated work, the United States court took the important step towards making the rules clear on registration requirement of such work.  The proposed rule states that the AI-generated work may be registered under the specific circumstances like when a human contributed the majority portion of the work or when AI technology requires the specific contribution of work for generating the content that all will depend on the case to case while registering the AI generated work. This proposed rule is not final yet but it depicts the important step to clarify the air for the recognition of the AI-generated work.

COPYRIGHT LAWS: US VS EU

In US copyright laws authorship is only granted to the work that is created by humans. This is discussed in the case of Naruto vs Slater. This court held that animals and AI cannot be granted the copyright license as the copyright act of the US states that the copyright is only granted to natural persons. In the case of DABUS, USPTO stated that the work generated by artificial intelligence which lacks the human touch ultimately lacks the benefits of authorship.

In the case of the European Union, it also emphasized the human touch to claim authorship. EU is more prone towards regulating AI-related laws that are par with the current situation. under its copyright directive, the eu is recognizing the work of ai under the domain of ai authorship. It suggests that it is potentially attributing the authorship to the developer rather than AI itself.

For the concept of work for hire, in US law if the employee did the work, then that work becomes the authorship of the employer. If the work is AI generated and completed during the employment of the employee, then that work is considered as the work for hire and belongs to the employer if the human touch remains the significant portion.

European Union is still figuring out the concept of work for hire in the AI generated work. However, the present legal framework attributes the ownership to the natural person or developer who is involved in shaping the work with the help of AI. It reflects the traditional approach but also it has integrated some of the current legal frameworks related to AI generated work.

The US currently adopted the traditional approach for granting the copyright to the creators i.e. humans. The US Copyright Office has initiated some of the rules that talk about the incorporation of the AI model in the generation of work and till now the AI generated work remains unprotected.

The EU is adopting the separate framework for the ai generated work. EU has proposed some of the rules regarding the AI generated work and it is actively working to amend the current legislation to become the par with the current scenario.

CONCLUSION

The rapid transformation of Artificial Intelligence has put the courts the courts in the question for determining the copyrightability on works created by Artificial Intelligence. The concept of traditional copyright laws that benefits human authorship is strained due to the creation of AI generated work that lacks the human touch wholly or partly. The drastic shift towards using AI and claiming its copyright has shifted the US and EU approach to mitigate the changes and reform the laws. EU is actively participating in the reform on the laws related to copyright and considering it giving the authorship while placing the utmost importance of human authorship. On the other hand US stance towards AI is somewhat rigid while granting authorship to AI, the laws are more human friendly. There arises a need clear guidelines that balanced the interst of all the creators, artist, developer and most important the benefit of the society. The potential of AI in several industries is vast and this rases the concers regarding ownership and how they got exploited. The consistency in framing the legal standards at the International level is essential to ensure the copyright laws and encourage innovation and creativity. With the upgrade in technology, the copyright laws should also have to evolve. Policymakers has to continuously need to collaborate to create legal outlines which focuses on the unique attributes of Artificial Intelligence generated work, which obviously ensures the protection of Intellectual Right and the responsible use Artificial Intelligence.

Author: Sumit Chaudhary, in case of any queries please contact/write back to us via email to [email protected] or at IIPRD.

REFERENCE

WEB SOURCE

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https://www.ipic.ai/blogs/navigating-ai-art-copyright-legal-insights/

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[20] Copyright Act, 1976, § 201 (b), 1976

[21] DABUS v. USPTO, No. 20–1785 (Fed. Cir. 2021).

[22] Andersen, S., McKernan, K., & Ortiz, K. (2023). Class Action Complaint against Stability AI Ltd., Stability AI, Inc., Midjourney, Inc., and DeviantArt, Inc. United States District Court, Northern District of California, San Francisco Division. Case No. 3:23-cv-00201.

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