Introduction
Artificial Intelligence (AI) is revolutionizing numerous industries, from healthcare to finance, and content creation is no exception. AI-generated content, which ranges from music and art to software code and literature, raises critical questions about intellectual property (IP) rights. As AI becomes increasingly sophisticated, the question of who owns AI-generated content— the creator of the AI, the user of the AI, or the AI itself—has become a contentious issue worldwide. In India, the legal framework surrounding this issue is still evolving, leading to debates and uncertainties.
These debates arise a significant question- If developers doubt whether creations generated through machine learning qualify for copyright protection, what is the incentive to invest in such systems?
There are two kinds of legal effects of such ambiguity- Is it the denial of protection (trademark, copyright, design or patent) for works that have been generated by a computer or is it the denial of attributing authorship of such works to the creator of the program.
Current Legal Framework in India
The rapid advancement of generative AI technologies, capable of creating content ranging from art and music to literature and software code, has raised significant questions about the applicability of existing copyright laws. India, with its rich tradition of intellectual property (IP) law, faces the challenge of determining whether its current copyright framework is “well-equipped” to handle the complexities introduced by AI-generated content. While some argue that India’s copyright laws are sufficient, others contend that the evolving nature of AI necessitates a re-examination of the legal landscape.
I. Copyright Law: Under the Indian Copyright Act, 1957, copyright protection is granted to original works of authorship, including literary, dramatic, musical, and artistic works. The Act defines an “author” as the person who creates the work. However, in the case of AI-generated content, there is no clear “author” in the traditional sense.
Section 2 (d) (vi) of the Indian Copyright Act, 1957 defines author to include, “in relation to any literary, dramatic, musical or artistic work that is computer-generated, the person who causes the work to be created”.
The question arises: should the copyright belong to the programmer who created the AI, the user who provided input to the AI, or should it be considered public domain? However, going by the wordings of Section 2 (d) (vi) of the Copyright Act, 1957, it can be interpreted that the copyright revolves around the the user who provided input to the AI but the rights of programmer who created the AI are not clear yet, therefore, the Indian law currently does not have a definite interpretation or landmark judgement in this regard, leaving AI-generated content in a legal grey area.
II. Patent Law: The Patents Act, 1970, grants patents for inventions that are novel, non-obvious, and useful. As per Patents Act, 1970, AI systems have been excluded from the ambit of applicability of the Act, thereby restricting the rights of the ‘person’. As evident in Section 2 (1) (p), Section 2 (1) (t), where the patentee is referred to as a person, and Section 6 (1) (a), which states that an application for a patent can be filed by ‘any person’, and also in Section 2 (1) (ja), which defines ‘inventive step’, an essential requirement for an invention to be patentable, that such invention must not be ‘obvious to a person skilled in the art’.
AI can generate inventions or solutions that may qualify for patent protection. However, the AI-generated inventions cannot currently be patented unless attributed to a ‘person’ as per Indian law. ‘AI’ has not yet been recognised legal or juristic person, though the company (legal person) or a natural person owning the AI can apply for patent over any invention by such AI, though the road to comprehend the registrability of such AI made invention is yet to be determined by the Indian Judiciary. This limitation can stifle innovation, as companies and individuals may hesitate to invest in AI-driven research if they cannot secure patent protection for their AI’s outputs.
III. Trademark Law: The Trademarks Act, 1999, allows individuals and companies to register marks that distinguish their goods or services from others. While AI can generate unique marks or brand names, the registration of such marks would still require human attribution under current law including distinctiveness, indicating a connection in the course of trade between the goods or services, goodwill, continuous usage, elements of being well-known in relation to some goods or services in mind of general public or prior use etc.
As per section 2(1)(zb) of the Trademarks Act, 1999, “trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours; and—
(i) in relation to Chapter XII (other than section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and
(ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark;
Therefore, as per aforesaid definition any computer or AI generated trademark can be registered if it has certain attributes of being in human use, distinctive, indicating a connection in the course of trade between the goods or services & good or service providing entity, goodwill, continuous usage, elements of being well-known in relation to some goods or services in mind of general public or prior use etc. Thus, even a computer or AI generated trademark, if fulfils all other requisites of Trademark Act for being protected, then an application for registration of the said trademark can be filed by ‘any person’, though not AI since AI in India is still a long way from fulfilling the requisites of ‘legal person’ and being recognised as a ‘legal person’ under the law.
International Perspectives and Their Influence
Countries like the United States, the United Kingdom, and the European Union are also grappling with the issue of AI-generated content. For instance, the U.S. Copyright Office has consistently rejected the notion of granting copyright to non-human creators. The U.S. Copyright Office has declared that it will “register an original work of authorship, provided that the work was created by a human being.”
This stance can be read from the case law Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991) which specifies that copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.”
In Europe, the Court of Justice of the European Union (CJEU) has also declared on various occasions, particularly in its landmark Infopaq decision (C-5/08 Infopaq International A/S v Danske Dagbaldes Forening), that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.” This is usually understood as meaning that an original work must reflect the author’s personality, which clearly means that a human author is necessary for a copyright work to exist.
In contrast, the UK Copyright, Designs, and Patents Act recognizes the creator of the AI or the individual who made the necessary arrangements as the author, but only if there is no human author. This can be referred from UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), which states:
“In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”
Similar approach is considered by Hong Kong (SAR), Ireland and New Zealand. India is also somehow in terms with this approach though India often looks to international legal frameworks for guidance in shaping its own laws. As global discussions on AI and IP rights progress, India may adopt similar principles or develop its own unique approach.
Potential Reforms and Future Directions
To address the challenges posed by AI-generated content, Indian lawmakers may consider several potential reforms:
1. Amendment of IP Laws: IP laws could be amended to explicitly address AI-generated content. For instance, the Copyright Act could be revised to recognize AI as a tool in the creation process, with ownership assigned to the human entity that controls or directs the AI’s function.
2. New Category of IP Rights: A new category of intellectual property rights could be established for AI-generated content. This category could account for the unique nature of AI creation, balancing the interests of AI developers, users, and the public.
3. Setting up New Precedents: Since judiciary can also be maker of laws in certain part of world (Common law countries), clearing of ambiguities and interpreting of existing laws with an inclusion of AI by way of passing landmark judgements and making precedents will clear the path for such issues.
4. Licensing and Compensation Models: Another approach could involve licensing models where the AI’s developers or users are granted licenses to use and commercialize AI-generated content, with compensation schemes that reflect the contribution of AI in the creation process.
5. Public Domain Considerations: Policymakers could also consider whether certain types of AI-generated content should be placed in the public domain, especially when human authorship is minimal or absent. This approach would encourage innovation and access to knowledge.
Conclusion
As AI continues to advance, the legal landscape surrounding intellectual property rights in the globe will need to evolve. The current framework, rooted in human authorship, does not adequately address the complexities introduced by AI-generated content. To foster innovation and protect the rights of creators—both human and machine—the Indian Judiciary or legislature must consider reforming or interpreting its IP laws to include AI that reflect the realities of the digital age. By doing so, India can position itself at the forefront of AI-driven innovation while ensuring fair and equitable treatment of all stakeholders involved.
Note- The views are personal.
Authored By:
Megha Chaturvedi
Senior Associate, H.K. Law Offices
H.K. LAW OFFICES 