The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Change in the existing legal framework of intellectual property does not match the pace with which technological advancements are being made. The time taken by Google or Tesla to create an updated version of its software and unleash it in the market would be a fraction of the time taken by the legislation of any country to introduce changes in the law that are well updated with the technological developments. India is no exception to this trend. While other jurisdictions like the United States and the United Kingdom have faced the issue of affording IP protection to AI-generated-content. The situation in India resembles a clean slate. It is imperative to look into the scenario in India and make a conclusion as to the efficiency of the existing legislation to deal with IP protection to AI-generated-content if the need arises.
The fact that Google’s DeepDream might be able to produce art on the basis of its own understanding of the patterns fed into it demonstrates that everything that is a subject-matter of Indian copyright law currently, can be created by Artificial Intelligence. Therefore, the repercussions of the same on the Indian copyright law need to be studied.
The two major areas that require attention are:
The rights attributed to an author for his work play the role of an incentive to create more. This is the reason why authors are granted moral rights so as to create a bond that unites them to the object of their creation. While the above considerations might not hold ground in the case of artificial intelligence (since it is not an artificial person). The question of authorship of work created by the same assumes importance for other practical considerations.
Under the Indian copyright regime, S. 2 (d) of the Copyright Act, 1957 defines an author for the purposes of the Act. An author would mean “in relation to any literary, dramatic, musical or artistic work which is computer-generated. The person who causes the work to be created.”
The said definition necessitates determining the proximity of the legal/natural person to the creation of the work, as his/her involvement will decide whether he/she caused the work to be done. While the act defines a computer program, it does not define a computer-generated work. In that context, since the UK was one of the first countries to enact provisions on computer-generate work, and the state section in the Indian act is influenced by the same, an insight into the Copyright, Design and Patents Act, 1998 in the UK would helpful. S. 178 of the CDPA defines computer-generated work as those “generated by a computer in circumstances such that there is no human author of the work[s].”
Assuming that the Indian legislation also intended to purport a similar meaning to “computer-generate works”, it cannot be said that the said definition is problematic.
While the Act contemplates that in computer-generate works, the human mind which causing the work to given authorship, the very nature of artificial intelligence introduces complications in the scenario. The conferring of authorship on the human mind is not a mere legal fiction. The reason behind conferring authorship on the human mind behind a computer-generated work is that the computer is perceive as a tool to effectuate what the human mind has already thought of. It is akin to the reasoning that a pen cannot be given authorship rights of poetry.
Moreover, there is a degree of certainty and consistency underlying a work generated by the computer. That when a particular command is given, a definite output shall receive. It is work like these that have contemplated by the statute. However, in a situation where the AI involves processes like machine learning and deep learning. The human mind controlling or operating it cannot said to have control over its output. The operator has no role behind the specific “expression” that it generates. Therefore, if in accordance with the statute, authorship is confer on the person who merely kick-starts the process of expression by the machine. It would be technically incorrect since the expression is the result of the application of the mind of the machine. It has used its own intelligence to create the work. The require proximity link will broken.
Therefore in such light, the provisions in the Indian Copyright Act are not competent enough to deal with the question of authorship. Of works created by artificial intelligence.
While the inclusion of computer-generated work in the Indian Copyright Act that led to updating it with the various developments. In the UK law is commendable, it is suggest that the Act might need further changes to cope with the complications. Introduce by technological advancements.
While at times the solution to the above lacunae is to not give any kind of authorship to such works. It is suggest that the solution would not practically viable.
Keeping aside the theoretical possibility of the same. Not giving copyright to such works because of lack of human authorship can have far-reaching commercial implications. In the absence of copyright, the work would be in the public domain and would be free for use to anybody. The corporations engaged with such machines and works would be suffering a business hardship as a result of the same. It is expect that the legislature shall come up with a timely solution to the problem. As and when the problem ripens in India.
The requirement of originality is also an aspect requiring attention in the matter of artificial intelligence. While recognizing the moral rights of an author, the Court in Amarnath Sehgal v. Union of India emphasized the requirement of “original genius”. Originality in a work refers to an author’s own intellectual creation which assumes great importance. Since creative work is view as an extension of the self of the author.
However, such a requirement may also lead to the conclusion that not only is the author require to a human. But the copyright must also reflect upon his personality.
In the case of advanced artificial intelligence, such a requirement of law could be problematic. As even the operator of an AI will not be able to predict its output or decisions. Therefore, even if they are consider to the authors of the work. The element of originality will be difficult to satisfied. Similarly, as far as creativity is concerned the standard require to met under the current law is the “modicum of creativity”. The meeting of the standard would depend on the fact.
Whether the process of learning by the AI from the repeated requested patterns. Can consider as a variation substantive enough to constitute creativity.
The Indian copyright law in its current stage is not sufficient to tackle the issues. That might arise from the increased use of artificial intelligence.
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