As a human-made and trained technology that enables computer systems and machines to simulate human-intelligence or problem-solving capabilities, artificial intelligence (AI) raises challenging legal issues for intellectual property practitioners particularly over the ownership of rights in AI-generated content.

The laws in place pertaining to intellectual property rights in India with respect to copyright include the Copyrights Act, 1957, which lays down a heavy focus on the existence of a “human element”. Further, a primary requirement for being eligible for the ownership of copyright is the existence of a legal person with the capacity to enter into a contract.

The primary basis of granting a copyright to an individual or a person is to ensure that the works created as a result of their creative intellect are protected and preserved in a manner that they are not infringed upon, for example, by copying.

The original works of human creators expressed through a tangible medium such as art, murals, books, or songs are protected and give rise to certain rights to the copyright holder such as the right to reproduce the work, and the right to sell, publish, and display the work.

Presently, copyright laws worldwide are not well suited to support the grant of copyright protection for AI-generated content. There isn’t a single jurisdiction in the world that recognizes AI as a legal person and global laws focus on the importance of human intervention, originality and creativity when granting a copyright to an individual.

But with the increasing use of generative AI, there have been a lot of recent developments and debates in relation to granting copyright ownership for the works generated by AI. One example is the co-authorship granted in 2020 to Ankit Sahni and Robust Artificially Intelligent Graphics and Art Visualizer (RAGHAV), created by Raghav Gupta, which is an artificially-intelligent painting app. Though the Registry claims to have mistakenly granted the registration to the artwork “Suryast” (heavily influenced by Vincent van Gogh’s Starry Night), it is still under contention and it can still be seen as registered on the website.

In the United States, the issue was also highlighted in the case of Stephen Thaler v. Shira Perlmutter, Registrar of Copyrights and Director of the United States Copyright Office where it was held that works that have been autonomously generated and created by AI would not be granted any copyright ownership.

In the field of patents on the other hand, a patent was granted to the Device for the Autonomous Bootstrapping of Unified Sentience (DABUS), which became the first AI system to be given the status of an inventor with patent rights and ownership.

If AI is given the status of a legal person, it would raise the stakes of creativity and ensure that more innovation is brought into the world. This is because human creators would not only ensure through AI that the maximum is drawn out of their creative intellect, but also there would be an increase in competition from newly AI-generated works.

In the long run, it is not far-fetched for AI models trained on a self-learning model to acquire the status of a legal person with the capacity to own a copyright in AI-generated content. However, this position will only come into being when the distinction between human and non-human authors is settled.