Art is human: Are works devoid of human involvement eligible for copyright protection?

Artifical Intelligence (AI) is the new buzzword in town. In the cat and mouse chase between law and technology, the former always seems to be catching up with the latter, often due to legislative lethargy or the procedural challenges.

Due to its claimed ingenuity and creative output ability, AI often has an interface with intellectual property law, which is the bedrock of protecting human ingenuity and creativity.  

One such instance of the interface between AI and intellectual property is the case of Stephen Thaler v. Shira Perlmutter, Register of Copyrights and Director of the United States Copyright Office, recently decided by the United States District Court of Columbia. In this case the, Court was hearing an appeal against an order by the United States Copyright Office whereby the applicant claimed copyright in an original work of visual art titled A Recent Entrance to Paradise, which he claimed was generated by an AI-enabled computer program called the Creativity Machine.

The applicant sought to claim the copyright in the work for himself as the computer-generated work was a “work made for hire” to the owner of the machine. Thus, the claim of the applicant was that the work of visual art was autonomously generated by AI and was devoid of any human authorship. The Copyright Office rejected the registration application on the ground that copyright protection does not extend to non-human entities, and thus a work generated by AI could not be registered.

The question of law was the copyrightability of works autonomously generated by AI as per the extant copyright law. The settled position of law is that copyright subsists in a work the moment it is created, and the registration of copyright only recognizes the copyrightability of such a work. The rejection of copyright registration shall mean that the work for which protection was sought was never covered by subject matter of copyright.

The applicant contested the case primarily on the ground that copyright law has evolved with the times and has encompassed within its scope all kinds of original works of authorship fixed in any tangible form, known at the time, or later developed. Copyright protection is even afforded to works which are produced from a mechanical device like a camera. However, the rationale behind extending copyright protection to such works is that it involves human ingenuity, conception and expression. The criteria to qualify for copyright protection as per the US copyright law, which is also the case across several jurisdictions, is that the work should be original, it should be fixed in a tangible medium of expression, and the fixing of the work should be done by or the under the authority of an “author”.

Here, the Court reasoned that the settled position and precedent makes it clear that authorship attributed to a work is necessarily “human”, even though “author” is not defined in the US Copyright law and it relied on an interesting observation by Professor Justin Hughes that the question of conferment of personhood on non-human sentient beings is only “fun conjecture for academics.”

The Court then discussed at length the history and jurisprudence of copyright law and its emergence in the US. It undertook the exercise of purposive interpretation and opined that the raison d’etre for copyright legislation is to promote human creativity, arts and science. Artistic labour is incentivized for humans and not for non-humans. The Court also relied upon the interesting case Naruto v. Slater, where a macaque was denied the authorship of a photograph clicked by it and thus had no standing to initiate copyright infringement proceedings.

However, it is interesting to note that the Court has not given a final word on the copyrightability of AI works generated under human direction or with some human involvement, as the issue of law was restricted to copyrightability of works “autonomously” generated by a non-human/AI. Since no property right in the form of copyright existed in the work of visual art, the issue of ownership in the work being transferred to the applicant did not arise. Thus, the issue of transfer of ownership in a property right which is not existent was not addressed.

The key takeaway from this case, keeping aside the numerous legal precedents cited and the procedural nuances, is that human creativity, intervention and involvement are sine qua non for copyright protection. The reason is that the exclusive rights afforded by copyright law are to incentivize and remunerate the artists and creative people by recognizing their ingenuity and labour. Exclusive rights negate and restrict the freedom of people other than artists who created the work to copy or reproduce it. As such, any limitation or restriction on human activity and freedom should have a sound juristic reasoning. Promoting creativity and ensuring livelihood of artists is one such reasoning, which may not necessarily apply to non-human creators of works.

Art is an essential form of human expression across all civilizations which is evident by majestic monuments, sculptures, cave paintings and phenomenal literary works. As such, works are not just limited to the artist or creator, but form a cultural marker of a society. Copyright law protects such creators for a limited time to promote and protect such works which are beneficial to the society in the long run and fall into public domain once the copyright protection expires. To best capture the rationale for copyright protection afforded only to humans and not to non-humans a quote from the movie Dead Poets Society may be cited.

“We don't read and write poetry because it's cute. We read and write poetry because we are members of the human race. And the human race is filled with passion. And medicine, law, business, engineering, these are noble pursuits and necessary to sustain life. But poetry, beauty, romance, love, these are what we stay alive for.”  

Amar Patil is a lawyer based in Mumbai.