Dilemma of copyright over work created by Artificial Intelligence

Introduction

The first thing that comes to mind when someone uses the term Artificial Intelligence is High Tech Robots as is presented in big budget movies and online series. Most of the times, the Artificially Intelligent robots that are shown in the movies are represented as inherently dangerous technologies that could take over the world and successfully wipe out the entire human race. However, the truth is far from the things shown on Television and closer to a misconception. The term Artificial Intelligence was formally coined in 1956 by John McCarthy, at a conference in Dartmouth College in Hanover in New Hampshire, who described Artificial Intelligence or AI as the science and engineering behind creating intelligent machines. Earlier, the science of AI focussed essentially on problem solving and symbolic methods to describe human thinking, but it has gained tremendous popularity and widened its reach in today‘s world[1].The contemporary accepted definition of artificial intelligence is “the study and design of intelligent agents” where an intelligent agent is a system that perceives its environment and takes actions which maximizes its chances of success.[2] Artificial Intelligence is a replica of Human Intelligence. It is the reproduction of human genius into the machines in order to make the machines carry out variety of human tasks. In very simple terms, it means to pass on the human intelligence into the machines, to make those machines carry out tasks, ranging from a common domestic work to a complicated operation, which may either be equivalent, more or less transparent to the comprehensive limits of a human being. “AI is the science and engineering of making intelligent machines, especially intelligent computer programs.”[3]It also refers to those machines that exhibit a few cognitive traits similar to a human being for instance, developing thinking capabilities, learning process, problem solving mind, etc. The goal for creating artificially intelligent machines are to make these machines instil the capability of perception and reasoning[4].It basically provides human-like interactions with software and offers an output result for specifically requested tasks[5]. A few applications where the artificially intelligent machines can be found to have accomplished the performance levels of human experts and professionals is as diverse as in the field of medical diagnosis, voice or face recognition, banking and finance, etc. [6]In very simple terms, it means to pass on the human intelligence into the machines, to make those machines carry out the tasks, ranging from a common domestic work to a complicated operation, which may either be equivalent or less transparent to the comprehensive limits of human being. And therefore, now the Artificial Intelligence is a much wider arena of technology that is shown to the general public through movies.

[Image Sources : Shutterstock]

The working process of Artificial intelligence starts by consolidating a lot of information with quick, frequentative handling and shrewd calculations or algorithms, permitting the artificially intelligent software to gain consequently with the help of various different and similar patterns and features present in information or the data provided to it. [7]Deciphering and analysing through the mountains of information produced and provided by the people, the frameworks of Artificial Intelligence perform shrewd searches, decoding both content and pictures to find patterns or designs in complex information, and afterward follow up on those decoded patterns[8].

Depending upon how artificially intelligent machines inculcates in its system the capacity of performance at par with that of human intelligence, it is divided into three categories. The first category of AI is the Weak AI or the Narrow AI. This is the only type of AI that is commonly available around the globe in the present time for instance, Apple‘s Siri, speech recognition, self-automated cars, etc. This type of AI is designed to perform specific tasks and cannot exceed beyond its set limits, i.e., it operates only within the restrictions provided to it through commands by the programmer. Second category of Artificial Intelligence is known as the AGI, i.e., Artificial General Intelligence. This type of intelligence is able to perform tasks with the same level of efficiency as that of a human being. It allows the machine to be autonomous and apply its own knowledge and skill to mirror human intelligence[9]. At the present, no such machine having General AI has been developed to carry out tasks with as perfection as a human being but the presence of R2-D2 in  Star wars‘ and Jarvis in  Iron Man‘ has been observed and labelled as the future of General AI by the researchers[10]. The third category of AI is named as Super AI as this type of intelligence is beyond the comprehensive and functional limits of human beings. This type of AI is still a hypothetical intelligence. This type of intelligence would probably be the pinnacle of Artificial Intelligence.

Research Methodology

This paper is of descriptive nature and the research is based on secondary sources for deep analysis of copyright work over artificial intelligence. Secondary sources of Information like journals and websites are used for the research.

Review of Literature

Since the beginning of the age of computers, it has been universally acknowledged that the computers are well equipped for performing numerical, logical and scientific errands, and the ability of creation has for quite some time been viewed as an extraordinary and exclusive human trait. Innovation was not associated with computers and machines earlier, now the computers are making a wide range of unique works including, creative and artistic works, in addition to its already established mathematical and scientific functions. Generally, the guarantee of protection under copyright law has been accessible in occasions where innovation has been utilized as an instrument to help an individual to make a work, for instance, utilizing a camera to snap a picture or using a pen or a pencil to write. In these conditions, the individual gets awarded with the copyright protection in order to credit that individual as the innovative brain that recognized or set everything up bringing about its original creation[11]. Then came the concept of AI, taking the world of technology and computer sciences by storm. AI is an interdisciplinary science with multiple approaches, but advancements in machine learning and deep learning are creating a paradigm shift in virtually every sector of the tech industry. The expansive goal of artificial intelligence has given rise to many questions and debates.  One such risen area of debate in recent times with respect to Artificial Intelligence is in the field of intellectual property. The artificial intelligence is successfully and gradually gaining prominence in all applications and important aspects of life around us like education, health sectors, marketing, traffic control, etc. As discussed above, since machines with artificial intelligence have three categories and their functions range from the most basic technology like the face recognition, voice assistants to [12]performing the most complex functions and algorithms as similar as a human brain, the question of copyright is raised. All these tasks, if developed and performed manually by a person would qualify for an ownership right to the creator. Bringing diversified and unique categories of works into existence utilizing artificially intelligent machines could have significant ramifications for copyright laws. Earlier, there was no dispute with respect to the question of ownership over works produced by computers in light of the fact that the program was just an apparatus that upheld the innovative cycle of the creator, especially like a pen and paper, and the creations were limited as well. For instance, in case of a photograph taken from a camera, the individual clicking the photo shall be the owner of the photo and not the camera or its developer and in case of a handwritten document with a pen or pencil, the author who wrote the document shall be owner of it and not the pen or pencil. Creative works meet all requirements for copyright security on the off chance that they are unique, with most meanings of inventiveness requiring a human creator, owner or author[13]. However, with the advent of the second and third category of Artificial Intelligence as discussed above, it has now become pertinent to take into account and answer the question that whether the works generated by Artificially Intelligent machines without any human interference qualifies for ownership rights.

There are two sets of works created by Artificial Intelligence, one that has been created with human interference and the other created without the help of human interference. That is to say, the work created by first category requires some commands to be given to it in order to successfully produce the result and work created by other category of intelligence is generated by its own without any input provided by humans. The question of whether ownership should be provided to the machines creating unique works is centred around the second set of intelligence, that is, over works created by the machines without any human intervention[14].

Legality of Copyright to Artificially Intelligent Machines

Sub-clause (vi) of Section 2(d) of the Copyright Act 1957 defines an Author of a computer-generated work. It provides that in relation to any literary, dramatic, musical or artistic work which is computer- generated, the person who causes the work to be created shall be the author[15]. Although, the law does not explicitly mention the word Artificial Intelligence, but until the law is amended or a new legislation specifically for the works created by Artificial Intelligence comes into existence, it can be safely derived from the present act of 1957 that the person who causes a computer generated work to be formed or created, using the computer as a tool, he shall own the copyright over such work. It can also be derived from the above-mentioned sub-clause that where the work has been created by an artificially intelligent machine without any human intervention, that is, by accessing and analysing the data on its own to produce the result, the author or the owner in such cases will be the person that has developed a program that led to the creation of intelligent machine. Further, it puts the machine in a position of dire as Artificial Intelligence is not a legal person as is required by the definition of  author provided under Section 2(d). We can take the case of a simple google form. A user creates two google forms for receiving details of the participants of a seminar. One form allows the participant to enter only two areas of interests in the field of Law and the other provides the participants to enter as much areas or subjects of legal interest they want. Here, the first google form has been restricted by the user itself to not to receive more than two subjects of interests and the other form has no restrictions. Now, although the google form is an online survey application, it functions and accept answers in accordance with the inputs provided by the user of the form to the extent of limits programmed in it by the developer of the google form and therefore, the google form cannot be provided the copyright for the survey conducted. It shall vest with the user and creator of the survey. An online computer program cannot be created without the programmer’s or creator’s initial input. The programmer potentially employs a degree of originality while compiling and selecting fundamental work, information, and data that form the basis of the work generated by the intelligent machine. [16]A perspective can made out from the Personality Theory propounded by Georg Wilhelm Friedrich Hegel in his research work ―Philosophy of Right as ―

A person has as his substantive end the right of putting his will into any and everything and thereby making it his because it has no such end in itself and derives its destiny and soul from his will. This is the absolute right of appropriation which man has over all things.[17]

An interpretation that can be drawn from the Personality theory provided by Hegel is that in case where an individual has developed a thing by converting his ideas into expressions and placing it into that development then he has exercised a direct right and ownership over that property developed. Hence, the works made by the smart machines are not created from and because of its own will as the machines are not capable of having emotions. In this way, the works made by the wise machines can’t be considered as works qualified to be secured under copyright law.[18]

On the other hand, it is an undisputable fact that the artificially intelligent machines have grown rapidly and are adopting to human level of creativity and intelligence at a tremendous speed. However, if we were to provide ownership rights to an artificially intelligent machine, what use can the machine make of the rights granted to it?

Ownership Rights

Once a creation of a person has passed the test of originality and is qualified for copyright protection, the person of that work enjoys economic rights under the act of 1957. According to Section 14 of the Copyright Act of 1957, once a person has been granted a copyright for outcome of its own labour, it exercises the following rights over it:

• It can reproduce the work in either documentary or electronic forms.
• It can publish the work.
• It can either sell its work or rent in commercially.
• It can make adaptation and translation of its work and sell the work
• It can form copies of its work and distribute it in the public.
• It can perform and communicate about its work with the public, and
• It can make a movie or a sound recording with respect to its work.

Considering all the above rights provided to the person who has been granted copyright for its work under the act of 1957, we come back to the question of how are these rights going to be exercised by the Artificially Intelligent Machines, if and when they are to be taken as an author? We are all aware that a non-human entity is not capable of exercising any kind of rights that are provided to a human by the law of the land. Artificial Intelligence being a non-human entity also faces the same problem as it is unable to enforce the above rights on its own. An intelligent machine is not capable of suing another person or even another intelligent machine for any infringement of works generated by it by going to the court of law.

From the above legally recognized rights of selling and commercially renting one‘s work, publishing the work and making a movie or recording based on its work amongst others, it can be drawn that the author vested with copyright exercises economic rights over its work. The author has freedom to earn financial benefits and rewards by selling, distributing, renting, etc, its work. The author can reap economic benefits in accordance with the nature of the work created by it. It can earn some type of remuneration or royalty over its work. However, it is not very often that the authors themselves exploit their copyright work for monetary benefit and when they do, it is not possible for them to exploit all of the rights provided above. Therefore, it is advisable to the author to transfer some or all of his rights, whatever may deem necessary, by way of assignment or license to those who are in the business of exploiting the above rights. This will result into dual benefits, the work will enjoy market coverage and the copyright holder will be able to secure its share of profits for his labour, idea, investment and time.

Section 57 of the Copyright Act, 1957 provides for special rights to the authors of copyrights works that is known as moral rights that the statute considers to be an inalienable right of the authors. It protects author‘s right of paternity and right to integrity over its work. Right of paternity refers to the right of an author with the help of which it can prevent others from passing on the author‘s original work as theirs. It bars the mala fide intentions of others claiming authorship over the original author‘s work. Right of Integrity simply enables the author to protect its reputation and honour built around its copyright work. It prevents others from causing any distortion, mutilation or other alteration of the work to take place.

Artificial Intelligence, being a non-human entity will not be able to commercially exploit its works as similar to as a human being, nor is it able to comprehend the meanings of integrity and paternity. Does the machine understand the concept of being an author? How will machine figure out if its work has been copied, distorted, mutilated or altered? How will the machine come to know whether its original creation has been copied by another similar machine or a human being? How will the machine be able to claim compensation if some other person or machine infringes its copyright? And even if the claimed amount is paid to the machine as a remedy, where will the machine store its compensation and what will it use it for? As mentioned above, even for a human it isn‘t possible to exploit of all its rights then how will a machine be able to do it? Further, the issue of transferring the rights is also raised. All such questions fall within a grey area over which there are equivocal opinions and there is a dire need of deliberation between researchers and legislators in order to reach to a definite conclusion in terms vesting ownership rights in the smart machines. Even from the perspective of Public Policy, the motive behind granting ownership rights to the creator is to promote more artistic works by ensuring that those cannot not be stolen, making it less risky to develop original creations, [19]and thereby upholding the author‘s rights of paternity and integrity.

Absence of a Natural Person as Author

 Justice Thurgood Marshall’s statement in Community for Creative Non-Violence v. Reid provides for the definition of an author. He held that, “As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” [20]The statement made above by Hon‘ble Justice provides a clear explanation for defining an author for the purpose of copyright laws and protection. An author of a creative work is a person who initially had an idea about that work and has converted his or her idea into a solid visible material, as a form of tangible expression. Same definition can be extended to determine the author in cases of works created by Artificial Intelligence. To kickstart any smart machine a human intervention is necessary. We can take an example of a smart home appliance like a smart refrigerator. A smart refrigerator is able to adjust the temperature inside the fridge in order to optimise it with the outside temperature to keep the products fresh. It provides for a voice recognition feature. It notifies the user about all the contents of the refrigerator including the expiry dates of those products with the help of RFID (radio frequency identification) scanning. It is capable of maintaining a grocery list of the products which is also notified to the users[21]. However, all these features are displayed by the refrigerator only when the developer has programmed the refrigerator to do so and all these functions are carried out by the smart refrigerator only when it receives commands from its owner to do the same. An ordinary refrigerator or even a smart refrigerator as mentioned above is not capable of reading the mind of its user and show results without the user using some commands or without simply asking for it. It is not capable of exercising its own perception to provide the user with the best quality of products. The smart appliance cannot qualify for an authorship as it cannot exhibit similar traits as a natural person. They should be able to understand themselves of what, how and when the work has to be done by developing self-awareness.

“Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [22]Taking the same example of a smart refrigerator above, suppose one of the employees of Samsung from the engineering or programming department develops a smart refrigerator by adding a feature for opening the doors of the refrigerator with the help of a gesture, the gesture being a wave of hand. Now, if another home appliances company develops and introduces a smart refrigerator by adding the same feature with same gesture then Samsung can successfully sue that company and claim compensation for copyright infringement as the hand wave gesture for opening doors was the original notion or idea of the employee that it initially developed during the course of its employment under Samsung and therefore, Samsung exercises ownership over it. Here, the smart refrigerator cannot be considered as an owner because it did not instil the feature of hand gesture on its own, it was already present in the fridge with the help of the programmer or engineer and therefore owned by Samsung. The programmer must have conceived an idea and ascertained an algorithm based on the said idea that functions itself into the gesture of the smart refrigerator. Neither did the smart refrigerator had an idea of developing a feature for opening doors with gestures, nor did it generate any algorithms for the same.

 Suggestions & Conclusion

 In view of all the discussions made in the paper above, a reasonable and cautious approach to resolve the issue of copyright over works created by AI seems to simply vest the right of ownership or copyright in the hands of the person who created the artificially intelligent machine and who made the operation of that machine a success. Another reason to not to let the application of Artificial Intelligence enter the domain of copyright is that this technology is yet to achieve its full form and adopt to the digital world. Most importantly, the world has unclarity in defining the limits of Artificial Intelligence. The technology of Artificial Intelligence poses both foreseeable, in cases of Narrow AI that is available to us and unforeseeable or future challenges, in case of General and Super Artificial Intelligence in matters of copyright protection. Provided the pace at which the advancements are taking place in Artificial Intelligence and their growth of reasoning and calculative powers, it is likely that the line of distinction between technology-assisted works and AI-created works may soon disappear. At the same time, if the works created by Artificial Intelligence are considered as original and the machines, not the programmer, developer or user, are provided the ownership then all categories of AI will have copyright over the results produced by them. That is to say, the weak or narrow AI like Siri, Alexa of Amazon, etc, and the super AI, like the Creativity Machine that consists of its own artificial neural network and is used for designing weapons by the U.S. military, will exercise copyright over their outcomes and inventions and since machines cannot be held liable and sued in court of law, they would have no accountability and will not be under any duty to be answerable to anyone. Basically, the liability will vanish because no person or organisation has been granted copyright over the works generated by these machines and the people wronged because of the operations conducted by those independent machines would have no discourse for remedy. Before we move forward in the direction of granting complete ownership to the smart machines instead of their developers or programmers, we need to carefully scrutinize the degree of uniqueness these machines can exercise instead of readily declaring every work made by every category of artificially intelligent machines as original, whether there was any interference of human and if any then till what extent, and the limits upto which these machines can be made or held liable for any of their creations resulting into negative consequences on the entire mankind.

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

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[7] SAS Institute, supra. https://www.sas.com/en_us/insights/analytics/what-is-artificial-

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[15] Indian Copyright Act 1957, sec. 2(d)(vi).

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[20]  Russ VerSteeg, Defining ―Author for Purposes of Copyright, American University Law Review 1323, 1326 (1996).

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[22] VerSteeg, supra, 1327.