INTRODUCTION:
In today’s era, people are highly dependent on Artificial Intelligence (AI), whether it involves drafting an email or the use of AI at the workstation. AI has become part of our daily routine due to its convenience. However, AI dates back to the 1950s, and the term “Artificial Intelligence” was first coined by computer scientist John McCarthy in 1956 at the Dartmouth Conference. McCarthy defined AI as “the science and engineering of making intelligent machines.”
Generative Artificial Intelligence is a type of AI that generates text, images, conversations, or other content based on the data they were trained on. ChatGPT and Midjourney are some examples of Generative AI. These AI tools create images or texts based on the prompt provided by the user. However, the most important question that remains unaddressed is who holds the copyright when an image or content is generated through these AI platforms like ChatGPT. Can AI be a copyright holder? Or the Company of generative AI technology? Or the prompt giver?
WHAT DOES THE COPYRIGHT LAW SAY? & HOW HAVE THE COURTS ADDRESSED IT SO FAR?
INDIAN PERSPECTIVE:
In India, the Copyright Law is governed by the Copyright Act of 1957, and Section 2 (d) (vi) states that “any literary, dramatic, musical, or artistic work that is computer-generated in such a case, ‘Author’ is the person who causes the work to be created.” However, this section does not expressly state whether the term ‘person’ is a natural person or a juristic person. Hence, AI cannot be the copyright holder since it’s neither a natural person nor a juristic person. Still, the Indian Copyright law lacks clarity on whether the company that are the holders of generative AI technology holds copyright or the prompt giver. Section 22 of the Copyright Act of 1957 discusses the term of copyright in literary, dramatic, or artistic works, which subsists until the lifetime of the author plus 60 years. Additionally, the filing requirements, i.e., Form XIV, the application for registration of copyright, require name, phone number, email, address, and nationality of the applicant. Through this, we can interpret that the Indian Copyright law is human-centric.
In Eastern Book Company v. D.B. Modak (2008) 1 SCC 1, the appellants were involved in publishing copies of edited versions of Supreme Court judgements, where they collected the copies of the judgement and further made additions to it through formatting, headnotes, footnotes, etc. Eastern Book Company filed a copyright violation against the respondents, to which the respondents argued that judicial decision were government documents and, they were not copyrightable by Eastern Book Company. In this case, the Hon’ble Supreme Court determined the ‘Originality threshold’. The court held that the work in question must be a product of the author’s skill and judgement, and the exercise of skill and judgement must not be of such a nature that it is purely exercised as a mechanical exercise. The court in this case eventually held that for a work to be copyrighted, it must be an exercise of ‘skill and judgement’ of the author and not just creativity. Thus, the Supreme Court held that copyright protection is necessary because editing was not just a mere mechanical effort; instead, it involved skill and judgment.
In Navigators Logistics Ltd v Kashif Qureshi & Ors 254 (2018) DLT 307, the Plaintiff was involved in the business of logistics, where he alleged that there was copyright infringement of confidential data by former employees, which were inclusive of customer database, accounts information, reports, airway drawings, etc. The Delhi High Court ruled that there was a lack of human intervention for copyright to be claimed over a list compiled by a computer. Copyright does not subsist until and unless a natural person has applied skill and judgement in its creation.
This judgment necessitates human authorship for copyright protection. The central argument here is that if a list that is compiled by a computer is not protected, then similarly, AI-generated works that lack human authorship cannot be protected
IS THERE A SCOPE OF JOINT AUTHORSHIP?
The Indian Copyright Law is sufficient to determine that AI alone cannot claim authorship. But, is there a scope to claim a joint authorship of content that is AI-generated by the Prompt giver and the company that owns the AI-generated content?
The Copyright Law in India at present does not address this concern. However, this could be better understood by an example. Just as a camera company cannot claim the copyright over the photos that are taken by a person who uses that camera, similarly, the person who is the owner of the generative AI cannot claim rights over AI creations. The AI company only supplies pre-trained data for deep learning models, but eventually, it is the AI that creates the actual work.
In the case of the SURYAST – RAGHAV AI PAINTING case, Ankit Sahani created an artwork (an image which was a stylized adaptation of “The Starry Night” by Vincent Van) using the Raghav AI painting app, and he filed two copyright applications concerning the same. The first copyright application was filed in the name of Raghav AI painting App, which was denied by the copyright office as AI is not a natural person. The second application was filed by Ankit Sahani, and he made the Raghav AI painting app as the co-author. The copyright office denied registration because the new aspect of the work was generated by AI itself. Ankit Sahani’s contribution in this case was considered to be de minimis.
US PERSPECTIVE:
In the US, the Copyright Law is governed by the Copyright Act of 1976, and Section 302 of the act states that the duration of the copyright subsists until the author’s lifetime plus 70 years. This section assumes the author to be a human being.
In Naruto v. Slater, often known as the Monkey selfie case in the year 2011, a British photographer named David Slater left his camera unattended, and a monkey named Naruto took selfies, which were published by Slater. The International Animal Rights group filed a lawsuit claiming that it violated Naruto’s (monkey’s) copyright. The court in this case held that animals cannot have copyright. Through this case, it was clear that the term ‘Author’ only included human beings and not animals.
In “Zarya of the Dawn,” the author wanted to copyright the novel. However, the United States Copyright Office (USCO) held that the cover page of the novel was created by Midjourney AI, which generates images based on the prompt provided, and the court held that since a human being didn’t create it, the copyright was refused for the cover page. “The court further held that the author holds only writing-related copyright and not the image-related copyright.”
Additionally, on March 16, 2023, the U.S. Copyright Office released guidance on copyright registration for “works containing material generated by AI,” which explicitly states that only works involving human creativity are copyrightable. It also emphasizes that the Constitution and the Copyright Act exclude non-humans as authors. The US Copyright Office further clarified that no matter how refined or detailed the prompts are, they do not qualify as human authorship.
Yet again, on 29th January 2025, the U.S Copyright Office released a report on copyrightability titled “Copyright and Artificial Intelligence: Copyrightability.” The report reasserts that simple prompts make a person incapable of claiming authorship. The report gives an example mentioning a person interested in buying a painting in an art gallery has a specific painting in mind, which is to be bought, and you may find the painting that you might want to buy, but buying that painting would simply not make the person the author of it. Therefore, it can be understood that the USA does not recognize prompt givers as authors because it is not a creative act, but rather a strategy of “re-rolling the dice.”
CONCLUDING REMARKS:
Both the Indian and the US perspectives validate that the authorship remains with a natural person and not a juristic person or the AI itself. However, most countries do not recognize AI as an author. For a work to be qualified as a copyright, it must be a human creation and not something that is merely generated through AI.
Awarding legal protection to content generated through AI ultimately discourages human authorship. The rise of new technological developments that are taking place around the world is an important issue that needs to be addressed, and it is only possible through introducing new legislation that addresses the dynamic complexity that exists in the intersection of AI and copyright. To conclude, a new law is an urgent need not only to address the issue of AI and authorship but also to address issues such as ownership as to who has the right to possess and control a creation, attribution, for acknowledging a creator for their work, liability, as to who will be legally responsible in case of an infringement, and ethical standards.
Authored by: Ms. Disha Ghorpade
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