Aumirah

 Can Art Created by AI Be Protected?

Background

This question was raised to register an ‘art piece’ called ‘SURYAST.’ (1)The creation of Art through Artificial Intelligence is gaining popularity all over the internet. More and more people from diverse backgrounds are dipping their toes into the emerging wave of AI.

Earlier, technology was a medium to enhance art, but now it has gained the capability to create art from scratch based on mere descriptive instructions. Another question arises in the ever-evolving world of technology: Is this art created through AI software protected by Copyright? Does it fulfill the ‘sweat of brow’ principle or the ‘modicum of creativity principle’? Creative works qualify for copyright protection if original works require a human author. Most jurisdictions only protect the Work created by humans.

Facts

Sahini, a lawyer and an artist made an application to register a claim for his artwork. He mentioned himself and “RAGHAV Artificial Intelligence Painting App” (RAGHAV) as the author 2-D artwork. Sahni explained in the application, he used an original photograph that he had clicked and added Van Goh’s The Starry Night as the style to be replicated or applied to the picture; further, he chose a variable value for the amount of style to be transferred from ‘starry night’. He further claimed that he named RAGHAV app as the co-author since its “contribution is distinct, disparate and independent”.

Arguments presented

Mr. Sahini presented three arguments. First, he argued that RAGHAV acted merely as an assistive software, and it was affected by the creative decisions taken by Sahni, in the form of choosing a picture and inputting a variable number for style transfer. Further, he asserted that he provided traditional elements of authorship for both the original photograph and the Work. 

Lastly, he argued that the given Work should not be considered a derivative work since it is ‘not substantially similar’ to the original photograph. Mr. Sahni drew an analogy and compared his effort of clicking a photo and using that akin to a painter making a rough sketch before painting.
In conclusion, he contended that the ‘human author’s total input work and the said art piece should be compared. The ‘art piece’ should be judged on the traditional elements of authorship.

Previous cases cited

After thorough contemplation, the board contended that the Work is not a product of human authorship. Sahni did provide the base image and the variable of impersonation, but he had no control over how the style would be reflected in the painting. He had no control over the specific elements of the painting, the color, or the placement of objects in the painting.

The board added that this is a case of ‘de minimis’ authorship not protected by Copyright. Sahni’s selection of numerical value for the “strength” of style to be replicated is insufficient to protect the said piece. They relied on the case of Feist Publ’ns Inc. v. Rural Tel. Serv. Co., wherein it was stated that Copyright does not protect Work that utterly lacks creative spark or is so trivial as to be virtually lacking the same.

A similar question was raised in Stephen Thaler vs. Shira Perlmutter; Thaler owned an AI system, ‘Creativity Machine’; in his application for copyright registration before the U.S. Copyright Office, ‘Creativity Machine’ was mentioned as the Work’s author. Mr. Thaler also added that the Copyright of the Work would be transferred to him as the owner of ‘Creativity Machine.’ 1 The leading question before the court was if a work autonomously created by an AI system could be copyrightable. The court declined the application for registration of Copyright and reiterated that human creativity is essential to copyright protection.

 Judgment

 Sahni states that his inputs result in one choice from nearly infinite permutations and possibilities of specific inputs. The board declined this claim and commented that these choices only constitute an unprotected idea for Work. However, as it has been said time and again, “protection is only given to the expression of an idea and not the idea itself.”

Ultimately, the board declared that Sahni could register his photograph. However, he cannot write the AI-modified version.

Position in India

Interestingly, the Indian Copyright Office probably overlooked ‘RAGHAV’ as the co-author, who registered ‘SURYAST’ in 2020.  Even though the application was previously rejected when the sole author was mentioned as the AI system. As the controversy around the issue rose, the Indian Copyright Office consequently issued a withdrawal notice, asking for further information regarding the legal status of the AI tool RAGHAV. It emphasized in Section 2(d)(iii) and 2(d)(vi) of the Copyright Act, 1957, the notice highlighted that an ‘author’ must be an artist or any person who causes the artistic Work to be created. Sahini contended that the Copyright Office could not review its own decision. However, the encountered Work is still mentioned in the copyright registry.

Background

The 161st report of the Department-Related Parliamentary Standing Committee on Commerce entitled ‘Review of Intellectual Property Rights Regime in India‘ (July 2021). The report suggested “incorporating the emerging technologies of AI and AI-related inventions in their ambit.”

Arul George Scaria observed that even though the report suggested relaxing the standards for securing Copyright and patents, they did not take into account the alarming implications of this approach on the start-up ecosystem in India. (2)

Conclusion

Are we ready to recognize and accept a non-human entity as an author of a ‘creative’ work? ‘What shall be considered an appropriate degree of participation to qualify something as a creative contribution? These questions are awaiting to be answered by the Indian Legal System.

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Shivangi Singh
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