A few weeks ago I had blogged about the Delhi High Court’s decision in Gurukul v. Evergreen. Here, the defendants challenged the copyrightability of ICSE Board Examination question papers (the Papers) and also perused the fair dealing defense of review under the Copyright Act (the Act). I covered these two aspects of the case in detail in my post. This dispute also raised the issue of whether copyright authorship can vest in artificial persons, which I aim to deal with in this post.
Individuality and Moral Rights
Section 2(d) of the Copyright Act, 1957 (“the Act”) defines the term “author” in the context of several copyrightable works but does not make any reference to the legal personality of the author. On the other hand, Section 17 provides distinct instances of copyright ownership when a work has been made under a contract of service or employment for artificial persons such as the government and international organizations. The absence of any artificial person from Section 2(d) is the first indicator that only natural persons can be protected as authors under the Act.
In Amarnath Sehgal v Union of India, Nandrajog J. recognized the moral rights of an author for the first time and observed that the author has a right to preserve, protect and nurture his creations through his moral right. He further noted that the rights of paternity, preservation of integrity, and that of retraction came to the author from the fact that “a creative individual is uniquely invested with the power and mystique of original genius, creating a privileged relationship between a creative author and his work.” Here, the Court’s emphasis on the individual while discussing an author’s moral rights suggests that artificial persons were meant to be excluded from the realm of authorship.
Interestingly, the Estonian Supreme Court held in a 2012 case that a legal person may acquire ownership in a copyrighted work but only a natural person can author it. The Court also drew a nexus between the concept of authorship and moral rights and hinted that only natural persons can enjoy moral rights. This dispute has been covered on the Kluwer Copyright Blog here; and for those who read Estonian, siin on otsuse.
Remember TARS from “Interstellar”? He’s the fictional advanced robot programmed with artificial intelligence; including the traits of humor and attitude. He also has the ability to think and speak autonomously. If TARS were to put on his thinking cap and pen a romantic lyric for his robotic girlfriend, say ‘TENUS’, would Indian copyright law protect his work?
Aurélie Costa (of international IP law firm ‘Heffels Spiegeler Advocaten’) provides an insightful take on protection of artistic works of created by robots. In 2015, some French media houses used robots which autonomously used an algorithm which enabled them to write short articles about and during the French Elections. Aurélie argues that the copyright in such short articles should vest in the creator/inventor of the algorithm since robots are not capable of original thought and expression.
In Amarnath Sehgal, Nandrajog J. emphasized upon the ‘original genius’ of the ‘creative individual’ of an author. Now, there should be no problem applying these requirements to a robot if it is in fact artificially intelligent enough to create copyrightable content without human interference after its creation. This capability, albeit of an artificial being, shows that such robots possess characteristics of individuality; wherefore their work can be termed original. It shouldn’t matter that this was made possible by man algorithms and machine parts devised by humans. Therefore, the law should recognize the authorship of such robots in the copyrightable works they create. This simply entails that works created by AI should not be mutilated, misused or incorrectly credited. Will it serve any concrete purpose? Well, it will boost the creation of free-access content for all of humanity; we can definitely give these AI some credit for that.
What of copyright ownership?
Some may argue that the creators of such robots should own the copyright in these works since very source of an AI robot is the intellectual labor expended by its creator. Creators of such robot may argue that every work created by such robot is a derivative work of their work, viz. the algorithm which enables a robot to create copyrightable works. This would be an incorrect proposition because not all possible derivations and incidental works are subject to copyright protection. For instance, copyright law will ideally not protect stock characters from a fictional story despite the originality and the intellectual effort expended by its creator in creating them. In any case, this would be undesirable since this would broaden the IP rights of an AI creator at the cost of the public’s opportunity to benefit from information created by such AI.
Is it desirable, that robots become copyright owners?
Well, if TARS and his other AI friends were protected under copyright; we humans may be left with an unreasonably narrow space to think and express our own thoughts. This is of course apart from the fact that (at present) robots are incapable of enforcing their rights in courts of law. Therefore I would suggest that such works, i.e. those created by artificially intelligent non-human entities, should be available for non-commercial exploitation by the public whilst recognizing the robots’ authorship in the work.