It is also pertinent to mention here that the Berne Convention for the Protection of Literary and Artistic Works, established in 1886, which is an international treaty that aims to provide a unified framework for the protection of copyright across participating countries, identifies ‘derivative works’ in its Article 2(3) as a new creative work that is based on or derived from one or more existing works. Securing copyright for derivative works, under the provisions of the Berne convention, necessitates a discernible and non-trivial departure from the original source. While AI tools utilize data derived from existing sources, the resultant output is far from a direct copy; it is shaped by the unique learning abilities of the specific AI model. Therefore, the works created by AI cannot be said to be a copy. This intricacy leads to a compelling argument: AI-generated outputs should be recognized as distinctive, derived works that encapsulate the insights of the AI, rather than mere rearrangement or reproductions of pre-existing material. Thus, works created by generative AI models or software could potentially be protected as derivative works, so long as the works used to train the said AI models or software have been obtained lawfully and with the consent of the original creators of the said works.
While, in the current scenario, the Indian Copyright Office allows applicants of translated or adapted works (derived works) to seek copyright protection by referencing the original works at the time of filing the application. In our opinion, this could serve as a foundation for the requirement of referencing existing copyrighted works that are used to train AI systems to generate new copyrightable works. However, the question of authorship still remains ambiguous as it addresses the idea that creativity is purely a human attribute which lies at the centre of the concept of authorship/ ownership. The question then arises as to whether an AI system is exercising creativity while creating new works or is merely mirroring the style of the creators who formed part of the data sets that it was trained on.
The Indian copyright law has a requirement for strict human authorship. According to Indian copyright law, a work must be authored by a human in order to be eligible to claim copyright protection. While the Copyright Act, 1957 acknowledges creators of computer-generated works, the legal status of AI-generated content per se remains unclear. In addition, the general protection period for original works under Indian copyright law lasts for 60 years from the year following the author’s death. If AI systems are granted authorship over works, the perpetual existence of the AI system challenges the fundamental purpose of this protection period, as it continues to exist in perpetuity.
Another major hurdle that lies before the IP community is enforcement of copyrights. Granting authorship rights to AI systems raises concerns about enforcing copyrights or holding AI systems accountable for potential infringement since AI systems per se lack legal personhood and cannot be held accountable for infringement or any other legal ramification, therefore creating a complex scenario.
The sudden surge in AI-generated content raises intricate questions about authorship, ownership, enforcement, etc. of such works, as the current legal frameworks strive to adapt to the evolving landscape where machines contribute significantly to the creative process. The unavoidable intersection of AI and existing copyright law in India necessitates examination and refinement of the relevant law to address the challenges and opportunities presented by the emergence of AI as a formidable creator of original, copyrightable content.
The Parliamentary Standing Committee report (as referred above) has recommended that a separate category for protection of AI-based inventions as IPRs be introduced. The Committee has recognized the relevance and utility of cutting-edge technologies like AI and machine learning and their role in India’s revenue generation. It has also recommended that the Department for Promotion of Industry and Internal Trade should make efforts in reviewing the existing legislations i.e., the Patent Act, 1970 and the Copyright Act, 1957 to incorporate emerging technologies of AI and AI related creations in their ambit.
Source: Barandbench
