AI-Generated Work: Challenges the Traditional Authorship under Copyright Law

This Blog is Written by Amit Kumar, 5th Year, BA LLB, Banaras Hindu University, Varanasi.

Blog 05 | Edition IX

The intellectual property right is a separate discipline, relatively new compared to traditional disciplines, and is continuously undergoing transformation by technological innovation. The foundation of IPR laws, especially copyright, is vested in the recognition and protection of human creativity. However, by the introduction of Artificial Intelligence (hereinafter referred to as AI), which acted as a transformative force, revolutionizing various aspects of human life, including substituting human creativity. Human creativity is the foundation of copyright law, but with the emergence of AI, there has been a paradigm shift toward AI creativity that significantly challenges the fundamental notion of ‘human authorship’ and poses a rival to human creativity under copyright law.

Whether AI Is a Legal Person?

Authorship and ownership are two distinct concepts; ‘Author may be the owner, but owner may not necessarily be the author’. The term ‘author’ has been defined under section 2(d) of the Copyright Act, 1957, and provides lists the authorship for different categories of work. The authorship can only be claimed by a ‘natural’ or ‘legal person’. The mother convention on copyright law, i.e., the Berne convention, did not expressly define Author, but under Article 7(1) the term of protection granted ‘shall be the life of the author and 50 years after his death’ which means that the creator of the work must be a human being. AI should not be considered a separate legal person because it is not fully controlled by a human being, unlike other legal persons such as companies or deities. Although it generates work by human prompt, AI may autonomously determine certain expressive element like background color, scenery, lighting, structure etc. of the result. Some instances where the courts have not recognized AI as legal person such as in case of Amazon.com Services, LLC v. Perplexity AI, Inc., the 9th Circuit court ruled that “Al is a tool, not a person”. The Indian copyright office noted that AI system was not a natural or juristic person recognized in law. Hence, rejected AI as an author under Copyright Act, but protection granted to the work. The office further stated that whether the AI is legal person or not, the question is reserved for the parliament.  AI-users has principal agent relationship which is affirmed by the tribunal and held that the airline company was responsible for the words of its AI chatbot, which provided misleading information to customers and thus rejected the company’s contention that AI chatbot is a separate legal entity. Moreover, the European countries have discarded the legal personality of robot and committee recommended that “AI systems have neither legal personality nor human conscience”. Therefore, we concluded that AI is not legal person and copyright law is confine only to human authorship.

Whether AI can Infringe Copyright?

If the AI developer used copyrighted works for the AI training, without permission from copyright holder, whether it would fall under fair use under Section 52 of copyright Act? This legal issue has been addressed by Delhi High court and the court found that Open AI’s act of storage of the literary works of ANI for the training of its LLMs would fall under Section 52(1)(a) of the Copyright Act and hence, would not amount to infringement. Consequently, AI-generated work used copyrighted materials as it is without acknowledging the source, original author may claim for infringement of plagiarism, not for copyright. While contrasting view was taken by US court that use of the copyrighted material for training an LLM cannot be considered fair use. To address this issue legislative framework made in US and under section 2(1) of the Generative AI Copyright Disclosure Act, 2024 which does not expressly bar on using copyrighted materials for AI training rather requires developer of generative AI training datasets to disclose a detailed summary or public URLs of any copyrighted works used to train or alter their AI system. Under section 2 article 53(1)(d) of European Union AI Act, 2024 which states draw up and make publicly available a sufficiently detailed summary about the content used for training of the general-purpose AI model. If the developers have to take authorization, it would become a barrier in upgradation and development of AI that would adversely affect the public interest.

AI-Generated Work and Authorship: A Legal Analysis

The emergence of AI threatening to human authorial right and creation because AI generates any creative works such as artistic, literary, musical etc. with minimal intervention of human. Traditionally, human beings using their cognitive faculty, employing tools such as pen-paper for making artistic or literary work but now their involvement is confined only in giving prompt that generates results. This shift raised fundamental concern regarding identification of author in technological era. The US copyright office expressed its view that ‘it is well-established that copyright can protect only material that is the product of human creativity. The Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans. For authorship, USA’s laws have confined its periphery to human beings, so on that basis in the monkey selfie copyright case, the court did not grant copyright to monkey, as an author. While AI cannot be considered as author because of the application of algorithmic feature behind it and it generates work on prompt by human, and prompter gives multiples prompts to refine unless AI-generate work as they have intention to create. Besides this Professor Robert Denicola stated that “The user of the computer should be considered the author and copyright owner”. Similarly, the Beijing Internet Court ruled that AI-generated image is copyrightable and prompter is entitled to the right of authorship under Chinese Copyright Law. While contrasting view was taken by the USA, in the case of Thaler v. Perlmutter the Court held that copyright law “protects only works of human creation” and the word “authorship,” like the word “author,” refers to a human being. The court further opined that AI generated work are ineligible for copyright protection and this view has been affirmed by US supreme court in 2026. Although there is no settled law at international level which directly stating that the author of AI generated work is the user, this view has more desirable than the developer view. AI-generated work will not come into existence unless the user gives prompt to activate AI algorithm to create work as per user’s prompt. Hence, the user is closely associated with intelligent work.  Under section 2(d)(vi) in the expression “person who causes the work to be created”, The word ‘causes’ in common parlance refers to the person who is responsible for the coming into existence of the work, which indirectly refer to user as author of computer-generated work. To address that issue and establish certainty in the law, adopted convenient practices which maximum states have recognized as under section 9(3) of the Copyright, Designs and Patents Act 1988, states, for ‘computer-generated work, the authorship lies to the person who undertakes necessary arrangement for its creation’,  hence, AI is simply a tool that facilitate in the enhancement of human creativity similar to camera as a tool but photography is skill or creativity of the human.

Conclusion

The evolution of AI came with the challenge of authorship. But none of the countries’ legal system recognized AI as an author of AI-generated work but some of them like China, India, south Africa etc. have provided copyright protection. The authorship issue on AI-generated work creates confusion at the international level because there is no settled principle of law. The international communities are also facing challenges and uncertainty on recognition of AI authorship. But, for smooth regulation of AI-generated work, the authorship right should be granted to prompter because their creativity is reflected in the prompt, and such person is suitable for authorship. However, AI technology has gradually evolved and shifted towards more advanced level which may in the future challenge prompter’s authorship. When AI itself creates AI and human as prompter vanish like robot movies.

 

(Write to the author at amit841696@gmail.com.)