By, Vivan Jhaveri and Nayanikaa Shukla
Mark Mallia would never have comprehended that of the minds that would try to recreate his work one among them would be artificial. Recently, a robot named Universal Machine Artist (“UMA”) has made an interpretation of the artwork of the Maltese artist. UMA’s work has been inspired by that of Mallia, but the interpretation and its crystallisation in the form of a painting is done by UMA unaided. But, this is no longer shocking, in the tech world this is quickly becoming a common sight.
However, the situation continues to challenge the traditional Intellectual Property Right (IPR) principles, presenting a pertinent question: who owns the IPR over such work? In certain cases, AI machines can be specifically trained to create works that resemble the creations of a particular artist. For example, a robot may be trained to the distinct style of the famous artist Ed Sheeran, and later, the AI creates music similar to his. This throws up several matters for consideration: Do the creators then owe anything to Ed Sheeran, or does it amount to infringement of his copyright? And, does this make the machine an artist?
CURRENT POSITION OF LAW
Presently, the artist cannot demand any royalty or credits for the work generated by the robot, unless it’s a direct duplication of the artist’s work, i.e., the infringement of copyright must be ostensible. This is aggravated due to the lack of clarity in present laws, combined with the ambiguity of the situation.
Ordinarily, the work generated by any machine is deemed to be the work of the creator of that machine (classified as “computer-generated works”). But since certain AI machines, as illustrated above, create work without human intrusion, some argue the work they create may not automatically be the property of the individual who created the machine. However, the general attitude of courts so far towards IP rights of machines have been uncongenial.
The US copyright law in this regard is rather vague, as it does not expressly use the word ‘human’. But in order to elucidate the position of law, the US Copyright Office has expressly declared that it will grant copyright for only those works that are created by humans. In Europe too, the law has not fully evolved, but the Court of Justice of the European Union has observed that an original work reflects the personality of the author; therefore, a work generated by a machine cannot be called an original work and thus cannot be protected by copyright. The courts of other jurisdictions have also stressed on the point that the material sought to be copyrighted must bear the mark of human intellect, and the works created by machines lack such mark, and thus cannot be declared original works under copyright laws. AI is only a tool, a facilitator, not a creator. Hitherto, India has been following the model of protection of “computer-generated works” by giving the IP rights to the creator of the technology. But with the fast advent of AI in the Indian markets, India will have to take a clearer stance on the subject.
IMPACT OF GRANTING IP RIGHTS TO ARTIFICIAL INTELLIGENCE
Granting IP rights to non-human entities will have numerous implications. If a machine is granted copyright over a work generated by it, it would also get the associated rights, like the right to determine who can further reproduce the copyrighted work, but since AI does not have the power make such decisions, or the power to sue for infringement of copyright, granting IP rights to machines is not feasible at this point in time. Further, where would the law stand in the face of continuous developments in the AI technology itself, which render it completely different from the technology that initially generated the work is a question that must be answered in deciding on the owner of rights.
Patent claims by AIs pose more problems, as patent rights demand more positive actions from the creator than other IP rights. The responsibilities of patent holders include granting license to a third party to use the patented product and not act in an anti-competitive manner.
They are also expected to take action against patent infringers. These responsibilities require prudence, and so far, no AI machine is capable of such prudence sans human interference, and ultimately, the creator of the AI machine itself would be accountable for its actions.
Therefore, the IP rights must be granted to the creator of the machine and not to the machine itself, as the algorithm created by him is the main source of any new work done or new art created by the robot. No machine can match human intelligence at this point in time, and the insights of the two are incomparable. Another challenge posed is that we do not have the infrastructure to hold them accountable in case of breach of any right. Granting rights to the creator instead of the machine itself will solve this problem, as well.
The most sensible approach, for the time being, would be to give IP rights to the creators of the AI entity. This would encourage developers to enhance their work, and at the same time would ensure that companies keep investing in their endeavours, with the guarantee of sizable profits.
The courts may even include the work of an AI machine in the public domain, thus denying any single person a right over that work. But this approach seems prima facie unfair to the original creators. The only fair and plausible approach in the matter would be to grant the creator his rightful claim over the work.
AI machines and robots may be considered agents of their creators, and the IP rights over the works generated by them must, nonetheless, lie with such creators. In such cases, the creator will then have the associated right to pass the ownership of both the machine as well as the work is generated to any other person, thus making the system much more realistically implementable.
 ET Bureau, Meet UMA the AI robot that creates art with help of a human muse, ECONOMIC TIMES (10 January,2020),
 Andres Guadamaz, Artificial Intelligence and copyright, WIPO MAGAZINE (January 10, 2020), https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html.
 EU Copyright protection of works created by artificial intelligence systems, Faculty of Law University of Bergen, 15, 1 (2017), http://bora.uib.no/bitstream/handle/1956/16479/JUS399_V17_183.pdf?sequence=1.
Image source: Image by Gerd Altmann from Pixabay. Available at https://pixabay.com/illustrations/robot-artificial-intelligence-woman-507811/