“The Ultimate Answer to Life, The Universe and Everything is…42!”
-Douglas Adams (The Hitchhiker’s Guide to the Galaxy)
In the 1978–79 classic book series, “The Hitchhiker’s Guide to the Galaxy”, the super computer “Deep Thought” is asked the ultimate answer to life, the Universe and everything[1] and it takes the computer around 7.5 million years to share that the answer is “42”, a response which even baffles the characters in the book, only for them to realize that they were not aware what the “ultimate question” was, to begin with. In the present times, this seems like a case of an ambiguous textual input or “prompt” and therefore, the response of the computer (now a Chat GPT-esque AI) is also unclear.
Whilst in 1978–79 a super computer answering to complex life questions was a work of fiction, in the present era it has become a reality. Since November 2022, Chat Generative Pre-Trained Transformer (“Chat GPT”) integrated artificial intelligence (“AI”) into the everyday lives of a wide diaspora of people. With the widespread use of AI, anticipating and addressing potential legal issues that may arise, is essential.
AI, simply put, refers to an advanced form of technology that enables machines to act in a manner similar to intelligent human beings, for instance, there are various computer programs and applications for checking grammar, proofreading et., a task traditionally performed by humans requiring creativity and good language skills[2]. In fact, certain AI programs such as Quillbot, Jasper provide assistance in paraphrasing and copywriting as well.
At this juncture, it is important to note that similar to humans learning new concepts, skills by learning/training and observations, developers of AI programs/bots also train the AI to process the data and provide a response as per the data/information fed to them. Everyday software applications such as Google Maps use AI technology to preview the routes to be taken[3], the estimated time of arrival, expected traffic on the route[4] , these applications are examples of machine learning, i.e. where the machine by itself keeps learning, studying patterns and practices. This is also quite similar how humans learn through experience. Traditionally, AI operated systems are designed to answer a query as per a set algorithm/pattern however, this has since evolved into AI systems generating novel responses from the data fed to them, similar to how humans can on the basis of certain inputs create an original work. This new and improved for of AI programs are referred to as “Generative AI”
(“GAI”). GAI programs simply require users to submit a question along with relevant factual information. Based on this input, the GAI generates and shares its response which may be text, images, or other media.
The rise of GAI has been heralded by content creators, copywriters and various other professionals as a revolutionary development that will help them boost their creativity and productivity however, as the usual suspects for buzzkill, we lawyers stride right in, to assess the legal issues that may have to be addressed or resolved before things go south with the use of GAI. Therefore, right on cue, the scope of this article is to focus on the intellectual property rights related issues that may arise as a result of use AI, including GAI.
As discussed earlier, a GAI program “generates” work, which may be original and unique. Under the Copyrights Act, 1957 (“Act”), works which are original[5], fixed in a tangible form[6] and have certain modicum of creativity[7], are protected under the Act. Furthermore, as per the Act, copyright in a work subsists immediately upon its creation and typically, the author of the work is the first owner of copyright in the work, subject to certain exceptions envisaged under the Act[8]. The Act defines the term “author” in respect of various types of works including works that are “computer generated”[9]. In case of works that are computer generated, the Act stipulates that the person “who causes the work to be created” will be the author of the work. This applies to scenarios like a website developed from a programmer’s codes or images edited using software, resulting in a computer-generated outcome. The computer generated outcome is essentially the visible result of the mental conception of the individual providing the input. However, this becomes more complex when works are developed by GAI. This is due to the fact that in case of GAI, the resulting work is an original work developed by the AI upon the prompts shared by the user, the user also may not be aware of the resulting outcome. Therefore, in this case the user that has given the prompt cannot be considered as the “author” of the work developed by the GAI. This limitation in the definition of author/inventor to be human, under the Act and the Indian Patents Act, 1972 was acknowledged by the Indian government in its report in 2021[10].
Recently, this issue was effectively addressed by the United States Copyright office (“Office”) in the grant of copyright in a comic book titled “Zarya of the Dawn” (“Comic”) authored by Kristina Kashtanova[11] . The Comic was granted copyright registration in or around 2022–23 however, pursuant to the grant of registration, on the basis of the interviews of the author of the Comic, it came to the knowledge of the Office that the graphical representations in the Comic were created by the operation of the Midjourney’s artificial intelligence technology (“Midjourney”). This material fact was not disclosed in the copyright application. The Office requested clarity from the author’s representatives, who admitted that the graphical representations were AI-generated but argued that the author had considerable involvement in finalizing and editing the images. The Office concluded that despite the author’s prompts, the output generated by Midjourney was unpredictable and therefore, the author could not be owner of copyrights in the graphical representations of the Comic. The author was concluded to be the owner of copyrights in the text and compilation of the Comic, but the registration of copyright in the graphical representation in the Comic, was cancelled.
Interestingly, in November 2020, the Indian copyright office granted registration to an artistic work titled “SURYAST”[12] . The authors of this work, were Mr Ankit Sahni and RAGHAV an Artificial Intelligence Painting Application. However, one year later, the Copyright office issued a notice withdrawing the registration and seeking the legal status of RAGHAV. It is pertinent to note that as on the date of writing, the status of copyright of the work “SURYAST” is reflected as registered and on the copyright e-register, as is accessible online, there is only one author identified i.e. Mr Ankit Sahni[13], therefore, it appears that even though in the application RAGHAV may have been identified as an author, the Copyright office, only acknowledged as the author. The Canadian IP office also has granted registration to this artistic work titled “SURYAST” in or around 2021 with RAGHAV as the co-author.[14]
The above cases, illustrate that the recognition of an AI as an author/co-author in copyrightable works remains a subject of contention and different countries have different approaches. In the absence of uniformity, on the issue of authorship and ownership of copyrights in works created by AI, the application of “national treatment” provisions of the Berne Convention for the protection of literary and artistic works[15] (“Berne Convention”) also becomes ambiguous for GAI developed works. The “national treatment” principle of the Berne Convention requires the member countries to afford the same level of copyright protection to the author of a work (of a member country), that it would provide to its nationals. However, the application of this principle can be uncertain and complex when it comes to works created by AI, where different countries may have differing views on AI’s status as an author.
Made it this far? so now, you can move over to the 2nd part of this article..whenever you’re ready, ok?
Endnotes:
[1] Adams, D. and Riddell, C. (2021) The hitchhiker’s guide to the galaxy. London: Macmillan Children’s Books.
[2] Hartshorne, D. (2023) The best AI grammar checkers and rewording tools in 2023, Zapier. Available at: https://zapier.com/blog/best-ai-grammar-checker-rewording-tool/ (Accessed: 01 August 2023).
[3]Daniel, M. (2023) New ways ai is making maps more immersive, Google. Available at: https://blog.google/products/maps/google-maps-updates-io-2023/ (Accessed: 02 August 2023).
[4] Vincent, J. (2020) How google maps uses DeepMind’s AI tools to predict your arrival time, The Verge. Available at: https://www.theverge.com/2020/9/3/21419632/how-google-maps-predicts-traffic-eta-ai-machine-learning-deepmind (Accessed: 02 August 2023).
[5] Section 13 of the Act.
[6] Copyright manual on registration of Artistic Works and incidental issues (2018) Copyright Office. Available at: https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf (Accessed: 02 August 2023).
[7] Eastern Book Cooperation vs. D.B. Modak, 2008 1 SCC 1.
[8] Section 17 of the Act.
[9] Section 2(1)(d) of the Act.
[10](2021) Review of the Intellectual Property Rights Regime in India. Available at:https://drive.google.com/file/d/1L-9ugGmHIwFZTskpeillFE2yzYeippYu/view (Accessed: 02 August 2023).
[11] (2023) United States Copyright Office. Available at: https://www.copyright.gov/docs/zarya-of-the-dawn.pdf (Accessed: 02 August 2023).
[12] Diary no -13646/20202-CO/A, RoC No -A-135120/2020.
[13]Copyright E-Register November 2020 (2020) Copyright Office. Available at: https://copyright.gov.in/Documents/ERegister/E-Register_November_2020.pdf (Accessed: 02 August 2023).
[14] Kucukali, T. (2022) ‘RAGHAV: First (Registered) AI Author’, The University of British Columbia [Preprint]. Available at: https://iplaw.allard.ubc.ca/2022/05/03/raghav-first-registered-ai-author/ (Accessed: 02 August 2023).
[15] Article 5.