Computer software, including its more complex variant, the artificial intelligence (“AI“) system, was first developed and discussed in the industry as early as the 1950s. The earliest AI software programs included the Samuel Checkers playing program by Arthur Samuels (“IBM“) and the Logic Theorist written by Allen Newell, J.C. Shaw and Herbert A. Simon (Carnegie Mellon University), capable of simulating human problem solving. AI is a computer system that is “able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages”[1]. Legal systems, however, rarely keep pace with technology. So, it is only recently that, after many decades of the use of AI, legal questions and disputes over the authorship (and consequently, ownership) of intellectual property rights over computer output are gradually emerging.

Intellectual property (“IP“) rights have complex basis of ownership, depending on the type of IP, the level and the nature of contribution made by one or more creators of the IP and any agreement governing the ownership of such IP. Currently, in respect of software, the industry operates on an authorship / ownership model where the developer of software is typically recognized as the author / owner of the software (unless there is a contract to the contrary) and the end user is merely a licensee. However, as AI becomes capable of autonomously generating complex content, including songs, artwork, algorithms etc., the question of ownership over works created by a machine becomes a complex one.

Under Indian copyright law, typically the first owner of a copyright in a work is the ‘author’ of such work, subject to certain statutory exceptions[2]. Further, such ‘author’ in relation to any literary, dramatic, musical or artistic work which is computer-generated is “the person who causes the work to be created”[3]. This provision was introduced in 1995, when the understanding of computer generated works was limited to those requiring human input. It is also pertinent to note that the term ‘computer generated work’ is not defined under the Copyright Act 1957 (“Copyright Act”) and may be understood in terms of its literal meaning[4].

In order to specify the nature of such an ‘author’, jurisdictions such as Spain and Germany have indicated that the term ‘person’ when used in the context of authorship or origin of a work (in which copyrights subsist) is limited to a natural person[5]. However, under the Copyright Act in India, the meaning of “author” may not be restricted to a living person but may also include a juristic person in certain cases. Having said this, when the term ‘author’ is used in the context of a computer-generated literary, dramatic, musical or artistic works, it is arguable that such an ‘author’ may only be a ‘natural’ person. This is because unlike sound recordings and cinematographic films, the term of copyright for computer-generated literary, artistic, dramatic, and musical works, is calculated using the age of a natural person. There is also no legal precedent in India to suggest that the term “author” or a “person” can be broadly interpreted to include machines, devices or computers, as is being suggested by legislators in Estonia[6].

In view of the above, in the case of an artwork created by AI enabled software, where the final visual image is the original intellectual creation of the AI software, not only is it arguable that the software developer who enabled it’s creation through his algorithms is the natural person who causes the work to be created, it could also be argued that the person who chose the parameters for processing by the AI software (resulting in the original artwork) is the ‘author’ of the said original artwork. There may also be situations where such input parameters are commands that are pre-programmed by the developer and the contributions of such a person who enters these parameters are relatively elementary and minor in comparison to those of the software developer. In essence, these contributions may make the computer-generated artwork, a ‘work of joint authorship’[7], making the ownership conundrum more puzzling.

The question over the authorship / ownership of ‘computer-generated output’ was briefly considered (though not decided) by the United States Court of Appeals for the Ninth Circuit (on appeal from the District Court) in the case of Design Data Corporation v. Unigate Enterprise, Inc.[8]. In this case, the Ninth Circuit (citing precedent)[9] observed that the ‘copyright protection afforded to a computer program may extend to the program’s output if the program “does the lion’s share of the work” in creating the output and the user’s role is so “marginal” that the output reflects the program’s contents’ (paraphrased).

Indian copyright law has not had the opportunity to deal with these complexities, in the absence of any dispute in this regard. Furthermore, given the development of the ‘internet of things’ infrastructure (“IOT“) and inter-connectivity between devices, inputs to an AI enabled software may well come from other devices, computers or AI software that are connected over a network (including the internet), making the issue of contribution and authorship more challenging. As India increasingly adopts and relies on technologies such as ‘machine learning’ AI and IoT, how we tackle the questions of authorship and ownership will have significant commercial implications.

Authors:
Nandan Pendsey, Partner
Kirti Balasubramanian, Associate

Footnotes:

[1] Artificial Intelligence, OXFORD DICTIONARY, https://en.oxforddictionaries.com/definition/artificial_intelligence.
[2] See Section 17 of the Copyright Act, 1957 which states that the “author of a work shall be the first owner of the copyright therein” (subject to the provisions of the said Act) (paraphrased).
[3] See definition of “author”, Section 2(d)(vi) of the Copyright Act, 1957.
[4]  The Copyright, Designs and Patents Act 1988 of the UK, however, defines ‘computer generated work’ as one that “is generated by computer in circumstances such that there is no human author of the work”.
[5] The Spanish Copyright Act (Real Decreto Legislativo 1/1996, de 12 de Abril, Ley de Propiedad Intelectua) refers to the ‘right holder’ of a work as the ‘individual who creates any literary, artistic or scientific work’ and that such ‘author’ may be a legal person, in cases specifically provided. Further, the German Act on Copyright and Related Rights, under Section 2, also states that only the ‘author’s own intellectual creations’ constitute as works under the Act. See also ICLG: Copyright Laws and Regulations, Germany – Copyright 2019 (at: https://iclg.com/practice-areas/copyright-laws-and-regulations/germany – Query 1.6) wherein the author has indicated that under German law only natural persons are entitled to copyright protection.
[6] Estonia’s digital adviser has “proposed the adoption of a special AI law aimed at granting a legal personality to AI” (at: http://www.loc.gov/law/foreign-news/article/estonia-government-issues-artificial-intelligence-report/).
[7] See definition of “work of joint authorship” under Section 2(z) of the Copyright Act, 1957. A “work of joint authorship” is defined as a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.
[8] 847 F.3d 1169.
[9] Torah Soft Ltd. v. Drosnin, 136 F. Supp. 2d 276, 283 (S.D.N.Y. 2001).