Impediments To Copyright Law Evolved By A.I

Author: LawSphereX

Category: Intellectual Property

Published: 2026-08-23T20:17:50.553566+00:00

Updated: 2026-08-26T17:11:12.326+00:00

IMPEDIMENTS TO COPYRIGHT LAW EVOLVED BY A.I.

Mansi Maheshwari, CHRIST (DEEMED TO BE UNIVERSITY) Dr. PKVS. Rama Rao, CHRIST (DEEMED TO BE UNIVERSITY)

ABSTRACT

The modern use of artificial intelligence is such that one's life is never free from the influence that machines of modernity exert upon it. Indeed, it has transformed the industries of health care, finance and entertainment as well as the creative arts using its potential for processing large amounts of data to make futuristic gains that improve on efficiency or create innovation. These advancements have, however, invoked pressing legal and ethical issues with the development of such technology, especially in copyright law. AI content is presenting new opportunities and challenges. It enhances and automates the creativity that makes content production more widely accessible and more dynamic. Still, it disrupts the legal frameworks set in place for governing intellectual property rights.

Issues of authorship, ownership, and infringement have become muddled in light of the independent works generated by AI systems that closely resemble creations made by humans. Copyright law is often built upon established theories including Lockean labour theory that ties ownership to effort and labour, personhood theory connecting creative works to identity of an individual, and utilitarian theory that advances incentives for creativity and innovation. The legal principles serve as a foundation for recognizing and protecting authorship. But works created by AI challenge these theories, for they cannot easily fit into existing definitions of authorship and ownership by the law. Thus, the increasingly ambiguous legal scenario calls for fresh understanding of copyright laws in consideration of the idiosyncratic concerns associated with AI-generated creativity.

I.

LEGAL PERSONALITY

One of the most essential and disputed points in AI law is whether AI in its various kinds should be granted legal personality. Legal personality becomes extremely important, since it entails enforcing rights or imposing liabilities that who could be held accountable before the law— who is or what entity is in question? Given the brisk advancement in AI technology and its rapid embedment in everyday human life, the need to recognize AI as a new sort of legal personality is growing with every passing day. 1 Ordinarily, legal persons are classified under two headings: a. natural and; b. juristic persons. Natural persons are those individuals upon whom legal rights vest merely by virtue of being human, while juristic persons acquire a legal personality with a legal recognition such as that of corporations, religious entities, rivers, or ecosystems.

2 This recognition is usually accorded to entities formed in the interests of human beings or which are controlled by natural persons. When this logic is stretched to artificial intelligence, however, it becomes unwieldy. 3 Of the various theories of legal personality, fiction theory seems the one that might most aptly apply in the context of the legal status of AI. Under this theory, legal personality is accorded to certain corporations and entities merely because the law provides it, irrespective of whether these entities exist physically4. On the other side, the realist theory counter proposes that corporations are not mere legal constructs but rather exist as entities independently of other actors, with their own functions and moral obligations.

5This group of supporter’s advocates postulating legal personality for corporations on grounds of policy considerations and that they inherently deserve legal personality. An argument for the same extension could be made for AI

1 S Chesterman, Artificial Intelligence and the Problem of Autonomy, 1 NOTRE DAME JOURNAL OF

EMERGING TECHNOLOGIES, 210, (2020) ; S Chesterman, Through a Glass, Darkly: Artificial Intelligence and the Problem of Opacity, AJCL (2021)

2 S Chesterman, Artificial Intelligence and the Limits of Legal Personality, 69(4) INTERNATIONAL AND

COMPARATIVE LAW QUARTERLY, 819-844 (2020).

3 N.Naffine, Who Are Law's Persons? From Cheshire Cats to Responsible Subjects, 66 MLR 346 (2003)

4 Trustees of Dartmouth Coll. v Woodward, 17 US 518, 636

5 French, P, The Corporation as a Moral Person, 16(3) Am Phil Q 207 (1979)

because advanced AI systems operate independently and may arguably be treated as independent entities deserving legal personality. 6 The idea of legal personality is elastic and has a myriad of configurations attached to rights and obligations. The legal rights and responsibilities of natural persons differ among themselves, say, by a factor of being taken into account-a race, caste, gender, age, economic status, representation, etc. With respect to juristic persons, some may be having rights and liabilities in their names, e. g. corporations, while others may be having only rights and no legal obligations, as per treaty and tort law principles; the obvious examples are rivers and ecosystems. Such a converse situation is standing against the Hohfeldian classification of legal relationships.

7 One such approach would therefore be to place the legal obligations exclusively on the AI, without granting it rights. If any criminal violation were to arise, AI could be made liable via technical measures such as reprogramming and deactivation, if such operations were possible and warranted. However, severe uncertainties remain stretching the boundaries of civil liability, especially when it involves pecuniary damages. Another obstacle to AI being granted legal personality is the black box problem. This situation is created by complex algorithmic machinery within AI systems whereby, at times, it becomes impossible for human intuition to arrive at an adequate explanation of the decision-making processes8. As a result, there are concerns that AI should not be granted legal personality if its actions cannot be fully explained and predicted.

In India, the legal position of AI is yet to be clearly defined because of the absence of any guiding legislation or judicial pronouncements that could engage with whether AI can be treated as a legal person. This lack of clarity is all the more pressing and requires sustained discussions on legal and policy issues to locate AI within existing frameworks of legal personality. II. What do the legal theories say when it is attributed with AI?

1) PERSONALITY THEORY

Immensely almost in the beginning, one major supporter of personality theory was G.W. 6 Bryson, JJ, Diamantis, ME and Grant, TD, Of, for, and by the People: The Legal Lacuna of Synthetic Persons

25 ARTIFICIAL INTELLIGENCE AND LAW 280 (2017).

7 Stone, CD, Should Trees Have Standing? Towards Legal Rights for Natural Objects, 45 S CAL L REV 456 (1972), Constitution of the Republic of Ecuador, arts 71-74. 8 Preethi Padma, Can we offset the Black-Box Problem of Neural Network?, ANALYTICS INSIGHT, (Sep. 27, 2021, 9: 40 PM), https://www.analyticsinsight.net/can-we-offset-the-black-box-problem-of-neural-network/

Friedrich Hegel,9 maintaining that intellectual property extends an individual's personality, freedom, and will. Under this theory, the work of an individual is a manifestation of their active inner self, accomplished by their character, emotion, or experiences.10 Hence, the human being ought to control both, sites of control-works and ideas, on the basis of this theory. Moral rights of copyright law reflect this theory with vigor, protecting an author's reputation from the distortion, mutilation, or unauthorized modifications of their work. This includes the right to integrity (ensuring the work is not misrepresented) and the right to paternity (ensuring proper attribution). 11 A major challenge personality theory faces is AI does not possess the inherent human qualities

that will invoke copyright protection under this theory. An AI has no personal experiences since it lacks emotion and free will. These elements are crucial to the theory. Added to that, under the black box problem, it becomes next to impossible to decipher how AI perceives and processes information, making it challenging to substantiate the argument that AI operation embodies personal expression in a manner akin to human creation.

2) LABOUR THEORY

In contrast, the labor theory, which originated with John Locke12, offers another viewpoint. According to this theory, one owns the products of their labor—namely, if a person puts their labor into natural resources, then whatever products are made rightfully belong to that person. Thus, according to this theory, ideas exist in the state of nature as a common resource, so that when a person engages his labor to develop and express an idea, he should be awarded ownership over anything that results. 13 Many scholars have argued that Lockean labor theory provides the strongest basis upon which to draw copyright protection for works produced or generated by artificial intelligence. Whatever comes out of the AI, as it is trained on data inputs and previous knowledge, may be seen as products of labor—even if such labor does not invoke human intervention.

This indeed opens up some pertinent legal questions—should copyright protect AI, its creators, or perhaps users who direct or provoke the AI to create said content?

9 William Fisher, Theories of Intellectual Property, HARVARD LAW, (Sep. 27, 2021, 9: 40 PM),

https://cyber.harvard.edu/people/tfisher/iptheory.pdf

10 J.A. LEE, K.C. Liu, R. M. HILTY, ARTIFICIAL INTELLIGENCE & INTELLECTUAL PROPERTY, 12

(Oxford University Press, 2020)

11 Justin Hughes, The Philosophy of Intellectual Property, 77 GEORGETOWN LAW JOURNAL 287-366 (1988)

12 JOHN LOCKE, Two TREATISES OF GOVERNMENT, chapter V, para. 26 (J.M. Dent & Sons Ltd. 1962)

13 Justin Hughes, The Philosophy of Intellectual Property, 77 GEORGETOWN LAW JOURNAL 287-366 (1988)

As AI continues to bring about changes within the creative industries, such basic theories themselves would require some scrutiny to ascertain whether existing copyright frameworks can provide for AI-generated works or whether entirely new legal principles need to be forged. Proponents of this view argue that copyright protection should be extended to AI-generated works because AI exerts effort in creating them. 14 Under this reasoning, the fruits of labor should belong to the AI system that generates the work. This perspective aligns with jurisdictions like the United Kingdom, where copyright protection is based primarily on labor and skill, following the "sweat of the brow" doctrine established in University of London Press v. University Tutorial Press.

15 However, this approach is not universally applicable, especially in jurisdictions like India, which require a higher threshold of creativity for copyright protection.

3) UTILITARIAN THEORY

Among all the existing intellectual property rights justifications, utilitarian theory is the most well accepted. 16 It is on the basis of the principle of incentives and economic utility which ensures that an economic return can be made for the "cost of expression," independent from other forms of unfair market competition from copyists. Simply put, making a work accessible to the public is infinitely cheaper than the original creation effort17. This is because the copying can be done instead at minimal cost by any other person. But there are challenges to this theory when it is applied to the works produced by AI agents due to the black box problem18.

Time spent by a human working on intellectual product creation would take, as a matter of necessity, either economic incentive or legal protection as a requirement to continue producing new intellectual content; however, whether such considerations would be germane in regard to AIgenerated works is not unequivocally clear. Would AI-generated works cease to exist if no copyright protection were granted? 19 Perhaps AI needs incentives in the same way human creators do. There remain several unanswered queries on this in the intellectual property 14 Carys Craig, Locke, Labour and Limiting the Author's Right: A Warning against a Lockean Approach to Copyright Law, 28 QUEEN'S L. J. 1 (2002-2003)

15 University of London Press v. University Tutorial Press, [1916] 2 Ch 601

16 Mark Lemley, Faith-Based Intellectual Property, 63 UCLA LAW REVIEW, 1328, 1343 (2015).

17 Landes, William M., and Richard A. Posner, An Economic Analysis of Copyright Law, 18 (2) THE JOURNAL

OF LEGAL STUDIES 325, 333 (1989).

18 Zednik, C., Solving the Black Box Problem: A Normative Framework for Explainable Artificial Intelligence,

PHILOS. TECHNOL. (2019)

19 Vertinsky, Liza and Todd M. Rice, Thinking About Thinking Machines: Implications of Machine Inventors for Patent Law, 8 BOSTON UNIVERSITY JOURNAL OF SCIENCE AND TECHNOLOGY LAW 574-613 (2002).

framework in place today, which was originally conceived before concern about works made by AI came into being. For instance, recognition of such uncertainties in law has prompted a slew of regulatory interrogations across countries on possible gaps in IP laws vis-a-vis AI-created content. In general terms, three basic approaches can be identified from academic and judicial debates on AI and Intellectual Property:

1. Equal Treatment Approach – AI-generated works should be granted copyright

protection on the same terms as human-created works.20

2. Differentiated Approach – A separate legal framework should be developed to regulate

AI-generated works distinct from human-created works.21

3. Exclusion Approach – AI-generated works should not receive intellectual property

protection, as they fall outside the scope of current IP laws.22 III. How Originality and Authorship is the Barometer in AI-Generated Work?

1) ORIGINALITY

Creativity—the intangible spark that fuels innovation and originality—has long been considered a human trait.23 But what about machines? Can they genuinely be creative, or are they merely imitators of human ingenuity? This question is far from new. Ada Lovelace, regarded as the world’s first computer programmer, once questioned whether machines could

20 Jehan, Robert, Should an Al system be credited as an inventor, THE ARTIFICIAL INVENTOR PROJECT,

(Sep. 27, 2020, 9: 45 PM) http://artificialinventor.com/should-an-ai-system-becredited-as-an-inventor-robertjehan/; Ryan Abbott, I Think, Therefore I Invent: Creative Computers and the Future of Patent Law, 57(4)

BOSTON COLLEGE LAW REVIEW 1079, 1082 (2016)

21 Schonberger, D. 2018. 'Deep Copyright: Up -And Downstream Questions Related to Artificial Intelligence (AI) and Machine Learning (MVL)', in De Werra Jacques (ed.): Droit d'auteur 4.0/Copyright 4.0. Schulthess Editions Romandes, pp. 145-173; Lauber-Ronsberg, A., Sven Hetmank, The concept of authorship and inventorship under pressure: Does artificial intelligence shift paradigms?, 14(7) JIPLP 65, Nurton James, EPO and UKIPO Refuse AI-Invented Patent Applications,

IPWATCHDOG,

(Sep. 27, 2021, 9:

PM)

https://www.ipwatchdog.com/2020/01/07/epo-ukipo-refuse-aiinvented-patent-applications/id=117648/; Rebecca Tapscott, USPTO Shoots Down DABUS' Bid for Inventorship, IPWATCHDOG, (Sep. 27, 2021, 9: 40 PM) (https://www.ipwatchdog.com/2020/05/04/uspto-shootsdabus-bid-inventorship/id=121284/). 22 Ravid, Shlomit Y. and Xiaoqiong (Jackie) Liu, When Artificial Intelligence Systems Produce Inventions: An Alternative Model for Patent Law at the 3A Era, Cardozo Law Review (2018) 23 Gregory Sporton, Digital C'reativity: Something fromn \Nothing, Chapter 5, Can Machines Create? (Pa grave Macmillan, London. 2015), Available at: https://doi.org/10.1057/9-8113-486417_6 (last visited on 1' January 2024)

ever possess true creativity. If a machine simply follows pre-set instructions, can its output be considered creative? 24 Consider photography. A camera captures moments in time, but is it creative in itself? The artistry of photography lies not in the camera but in the photographer's vision—their choice of angle, lighting, and composition transforms an ordinary scene into art. The camera is merely a tool, recording what it sees, while the true creative force is the person behind the lens. 25 This debate is reminiscent of the invention of photography in 1839, which sparked significant anxiety about authorship. If capturing an image requires only the press of a button, who is the true author of a photograph? This question eventually reached the U. S. Supreme Court in Burrow-Giles Lithographic Co. v. Sarony (1884)26.

The Court ruled that originality in photography lies in the creative choices made before taking the picture, such as selecting the angle, timing, subject placement, and composition. This decision affirmed that photography, despite its mechanical nature, still requires human artistic input—a precedent that has shaped copyright law ever since. When we extend this discussion to artificial intelligence, the question of machine creativity becomes even more complex. AI systems can compose music, generate intricate designs, and even write poetry, but their creativity is inherently derivative. Unlike humans, AI does not create from personal experience, intuition, or emotion. Instead, it operates within predefined rules and existing patterns, drawing from human-programmed data.

While AI can produce novel outputs, these works remain tethered to human input, raising the question: can AI ever transcend its programming to achieve true creative autonomy? As AI continues to evolve, the boundaries between human and machine creativity are becoming increasingly blurred. However, legal and philosophical debates persist—should AI-generated works receive the same recognition as those created by human minds? Copyright law doesn't protect ideas indeed, it protects the expression of ideas. For a work to be under protection, it must be fixed in tangible form and must have a standard amount of 24 3 Natale, Simone, and Leah Henrickson. "The Lovelace effect: Perceptions of creativity in machines. " New Media & Society (2022): 14614448221077278. 25 McWilliams, Spencer A. "Taking pictures vs. making art: A personal construal of creative photography.

" Personal Construct Theory Practice 6 (2009): 21-34.

26 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)

originality for which it can qualify as being different from the already established creations. 27 The term originality has mainly been linked to human creativity. Reason being that earlier human beings were considered as the only soulful beings having the intellect of innovative thought. This was the very foundation upon which the creative efforts earned rights under intellectual property. But today, the emergence of advanced artificial intelligence (AI) brings new light to this age-old view. 28 Intellectual property laws were never crafted with an expectation of coming upon creativity that was not human. One major opposition to the bestowal of copyright protection on such creation is that the very AI is a product of human ingenuity. Hence, every kind of so-called "artificial creativity" must have its roots traced back to its very human developers.

This essentially goes to say that because AI operates unpredictably it does not function on the condition of complete autonomy from human development and influence. 29 However, a counterpoint worth considering is that AI has this creativity at the moment of its creation-a point that should not be lost altogether30. The practical issue in this case is whether or not the original creatorship raises the originality degree required for copyright protection. This kind of standard differs from one jurisdiction to another, and India's approach has quite changed over the ages. Traditionally, India has followed the doctrine of "sweat of the brow," where it has considered originality as labour, skill, and judgment rather than creative ability. This was evident in cases such as Burlington Home Shopping v. Rajnish Chibber,31 Kartar Singh Giani v. Ladha Singh32, and Mishra Bandhu v. Shivratan33.

However, the Eastern Book Company v. D. B. Modak34 case marked a shift towards a minimum creativity standard, similar to the U. S. approach. In this case, the dispute revolved around edited Supreme Court 27 Basu, A. (2021). Artificial Intelligence and Copyright Law in India: Challenges and the Road Ahead. Journal of Intellectual Property Rights, 26(3), 189-202. 28 Sinha, A. (2022). AI-Generated Works and Indian Copyright Law: An Emerging Dilemma. Indian Journal of Law and Technology, 18(1), 45-67. 29 Ryan, M. (2021). Artificial Intelligence and Copyright: Ownership and Originality in the Age of AI. Oxford University Press. 30 Gervais, D. (2021). AI and Copyright: How Creativity Tests Apply to AI-Generated Works. Journal of the Copyright Society of the U. S. A. , 68(1), 1-32.

31 1995 IVAD(DELHI)732

32 AIR 1934 Lah. 777

33 AIR1970MP261

34 AIR 2008 SUPREME COURT 809

judgments published in the Supreme Court Cases (SCC) Reporter. The respondents reproduced SCC’s cross-references, headnotes, formatted text, and other editorial content verbatim in their CDs. The court ruled that while judicial opinions themselves are public domain works, the editorial efforts involved in summarizing, formatting, and annotating them required skill, labour, judgment, and creativity—qualifying them for copyright protection. Thus, the court found an infringement in this instance. This case raises an important question: If human effort in structuring and refining information is recognized as creative input, should AI-generated works be treated similarly? Just as AI improves with practice and experience, the human-like ingenuity displayed in AI-generated content creates a legal conundrum—whose efforts should be acknowledged: the programmer’s or the AI’s?

A balanced approach would be to recognize AI-generated works as original when they meet

the established creativity threshold, just as human-created works are assessed. However, determining this must be done on a case-by-case basis, especially in the Indian legal landscape, where AI’s role in authorship remains unclear and evolving.

2) AUTHORSHIP

“When one thinks of the creative, one thinks of Beethoven, Joyce, and Monet-not machines. ” 35This statement echoes a common view among academics and lawyers who oppose giving AI authorship rights. The reasoning stems from a romantic notion of authorship-that creativity and intellectual effort are attributes purely human36. The basic challenge in assessing the authorship rights of AI is the absence of any legal definition for "author," with respect to both Indian and international copyright law. Traditionally, authorship has been thought of in a humanistic way. For decades, policy considerations have been influenced. The group that believes in a revolutionary approach proposes to accept any entity that is capable of producing original works as an author in copyright laws. AI would be considered a legal entity and thus grant copyright ownership to 35 Clifford, R. D.

, Intellectual property in the era of the creative computer program: Will the true creator please stand up, 71 Tul. L. Rev. 1675 (1996). 36 Avishek Chakraborty, Authorship of Al Generated Works under the Copyright Act, 1957: An Analytical Study, 8(2) NIRMA UNIVERSITY LAW JOURNAL 1 (2019).

these nonhuman creators. This group believes that present copyright laws provide enough scope to accommodate works produced by AI without much intervention. On the contrary, the romantic viewpoint asserts that only natural persons-humans-can have authorship rights. By this understanding, works of intellectual property ought to be ready for intellectual and creative output by the human mind-the ones that were believed to be essentially and uniquely human. The very attribution of authorship to AI puts a philosophical and legal problem called the black box problem-it is not clear whether such artificial intelligences require any incentive for creations and whether or not it serves any purpose to recognize such authorship at all. However, even these theorists do not completely deny some form of protection for works created by such artificial intelligence.

37 Modernism believes a stricter approach, reserving all intellectual property rights for natural persons, while also leaving out AI from inclusion in an authorship. The rationale argues that even when a work is produced solely by AI, the copyright of that work belongs to the human developer who designed and trained the AI system. This should be understood as referring to authorship rights of the romantic approach that should solely attach to natural persons-humans. Thus, intellectual property laws were designed to reward human intellect and creativity, which were seen as exceptional characteristics of humans. The very attribution of authorship to AI creates a philosophical and legal problem, which is called the black box problem-it is unclear as to whether AI really need incentives for its creations and whether recognizing AI authorship serves any practical purpose.

Yet, even these theorists do not completely deny some form of protection for works produced by AI. The present modernist strain is stricter. It holds that intellectual property rights should be reserved exclusively for natural persons, thereby leaving out AI from authorship. This implies that even when an AI independently creates a work, the copyright for that work must lie with the human developer who designed and trained the AI system. In India, Section 2(d) of the Copyright Act of 195738 defines an "author" but only in the context of natural persons, leaving ambiguity regarding AI-generated works. 39Additionally, Indian

37 Supra note 8

38 §2(d), The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

39 Basheer, S, Artificial intelligence and intellectual property, SPICYIP (Sep. 15, 2021, 11: 12 AM)

https://spicyip.com/2016/ 12/artificial-intelligence-and-intellectual-property-mind-the-machine.html

copyright law states that in cases of computer-generated literary, dramatic, musical, or artistic works, the "person who causes the work to be created" is considered the author. This effectively limits authorship to legal persons (humans or corporations), excluding AI as an independent author. 40 The Amarnath Sehgal v. Union of India41 case further reinforces the human-centric view of authorship. While discussing moral rights under Section 57 of the Copyright Act, of 195742, the court emphasized that creativity stems from "original genius" and is inherently human. This case suggests that Indian courts recognize authorship as an extension of human ingenuity. The debate over AI’s authorship rights reveals fundamental philosophical and legal challenges. While India's copyright framework currently excludes AI as an author, evolving technological realities may necessitate reconsideration.

Whether through new legislation or judicial interpretation, India must address how AI fits into the existing legal landscape while balancing human intellectual property rights and technological advancements. IV.

CHALLENGES OF AUTHORSHIP AND OWNERSHIP IN AI

It is important to determine the copyrightability of AI-generated works prior to engaging with questions of authorship and ownership. The degree of originality required by the copyright law continues to be uncertain as exemplified by China's Copyright Law. Scholars agree with copyright protection for some works but disagree as to whether works produced by an AI would, in fact, meet the requisite threshold for originality. Internationally, treaties such as the World Intellectual Property Organization Copyright Treaty (WCT) or the Berne Convention do not provide clear guidance about determining originality for AI-produced works. Certain features must be identifiable if an AI work is to stand a chance of qualifying for copyright protection.

There are landmark cases-including the Dreamwriter Case43 in China-suggesting that AI works can be original, albeit opinions will differ, as demonstrated by the judgment in

40 Nishith Desai Associates, The Future is here: Artificial Intelligence and Robotics, NISHITH DESAI

ASSOCIATES

41 Amarnath Sehgal v. Union of India, 2005 (30) PTC 253 Del.

42 §57, The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

43 The Chinese Court denied the opinion that "Dreamwriter" should be deemed the creator of the generated article. It affirmed that the creation process was not just the result of running established rules, algorithms and templates of "Dreamwriter", but involved work from the creative team members. The expression of the article was the result of a specialised arrangement and selection by members from the Plaintiff's creative team. This concluded that the works were created by the Tencent creative team and "generated" by the "Dreamwriter"

the case of Beijing Feilin Law Firm v. Beijing Baidu Technology Co. Ltd44. Meanwhile, we still ponder on whether copyright rights should be granted to AIs the same way they would be to human authors. Similar approaches are observed in some European countries falling under civil law, such as Germany and France, where the idea of authorship derives heavily from the creator's own personality. Nevertheless, these basic principles remain in a state of distress as the regular pace of technological development further aggravates them.

V. ARTIFICIAL INTELLIGENCE AND COPYRIGHT

The copyrighted works created by computer programs have been prominent since the 1970s. They were seen largely as tools to carry out creative activities, as they required human intervention to produce the final output. They were like stationery tools in that they too needed a human to input before any work could be done. This has completely changed with the advent of AI. Such engines are no longer merely tools created by humans; they can produce works entirely on their own, without human intervention. AI produces content in bulk and at reduced costs in a very short period. The works made by an AI can attract copyright in various jurisdictions based on the originality aspect of its creation. The criterion of "skill and judgment" in defining originality might be considered satisfied since its capability to program and define parameters enables the AI to compile and create works45.

However, a fundamental question arises: AI-generated works have no clear author for their creation. In such cases, AI can be assigned the credit of co-authorship, where human intervention is present since it allows the person who directs the AI to claim authorship for a piece of work he had undertaken along with the machine. Implicitly, when AI generates a work by itself, without any intervention from a human mind, the question of authorship remains unresolved. The authorship issue in AI-generated works has led to global debate, with three broad possibilities emerging: (i) The copyright system should recognize AI as an author

44 Beijing Internet Court Jing 0491 Min Chu No. 239.

45 Lucy Rana and Meril Mathew Joy, “India: Artificial Intelligence And Copyright – The Authorship”, Mondaq, December 18, 2019, available at: https://www.mondaq.com/india/copyright/876800/artificial-intelligenceandcopyright-the-authorship

(ii) AI-generated works should have no author and automatically fall into the public domain; (iii) A sui generis legal framework, separate from traditional copyright law, should be established to protect AI-generated works. The doctrine of copyrights is a motivation for authors to create original works through a recognition of skill, labour, and judgment. If AI were granted the status of authorship and its outputs were protected by copyright, this would equate human creativity with machine creativity. However, the other extreme stipulating that copyright will not protect works produced from AI systems would mean preference towards human creativity. Such a preference for machine-generated works would potentially lead to an inhibition of human creativity in the long term, as an attribution of equal status would deprive, or at least undermine this creativity.

The complication that will arise if AI becomes an author is serious. Works by any AI essentially are not free from any imperfection; they may contain bias, use harsh and objectionable language, or endorse violence upon the basis of caste, creed or religion. Tackling civil and criminal liability for perpetrators such as AI becomes really hard since the AI cannot be recognized by law as a man. In such cases, rectifying the problem may be through removing the objectionable content or restricting the AI software, but substantial damage could already occur and it could be irreversible by then. Another challenge emerges: what if such AIprompted work is termed “substantially similar” to an existing copyrighted piece? In such case, how to make any concerns against AI for infringement? Other than that, it cannot transfer its ownership of such works, being not a legal person per se.

Such legal frameworks in countries with civil laws, like Germany, France, and Spain, make creative works bear the "print of the author's personality46. " Since an AI does not have a personality, this requirement does not exist. Even identifying AI as an entity in law, their ability to enter contracts or owe legal duties or sue and be sued would be something most of the nations would have no inclination to consider doing. Another tricky question is copyright duration for works generated by AI. Humans die: they tire. Artificial intelligence never did and never will be. One way to determine the time of copyright 46 Brigitte Vézina and Brent Moran, “Artificial Intelligence and Creativity: Why We’re against Copyright Protection for AI-Generated Output”, Creative Commons, August 10, 2020, available at: https://creativecommons.

org/2020/08/10/no-copyright-protection-for-ai-generated-output/ (last visited on January 23, 2021).

might be from the publication date: 50 or 60 years depending on national law. However, they further claim that what copyright actually grants here is that production for AI-composed work should be mere bad faith. It is untenable because, compared to a human author who hardly creates a fraction of a work, or even sometimes does so, during the whole span of his life, copyright protects people for that very reason. AI, however, then generates an output, unlimited works without tiring; justifications for copyright, even in tradition, do not seem to apply. Experts who are against AI copyright also point that AI produces outputs quite predictable-it generates the same when you have the same model and input making something that would be difficult to use in claiming originality and creativity.

Besides, AI is not designed to negotiate royalties to apply the rights that human authors have under copyright law it. 47 One new line of thinking argues that AI-generated works ought to be free of authorship and occupy the public domain. Some considerations militate in favor of this position. First, the economic costs of AI are negligible in the production of works that should in reality be free for all. Second, AI could generate unlimited versions of the same work for free. Finally, copyright laws seek to stimulate human creators to the extent that they are granted economic and moral rights, but there is no need to stimulate AI to create work. 48 In contrast, if protection were denied to works of any light in AI, the entire AI industry itself would suffer in terms of discouragement to invest.

Companies investing so much in AI systems to generate creative works would otherwise incur losses if those works are exploited and commercialized freely by others without their authorization. This suppression of AI research and development would come about because less likely would be any investments made by companies in endeavours without assuring return. Thus, at least some protection may be warranted for AI-generated works to foster investments in AI and R&D while also maintaining human creativity as the subject of copyright law. The case of Burrow-Giles Lithographic Co. v. Sarony49 focused on whether a photograph 47 Edward Klaris and Alexia Bedat, “Copyright Laws and Artificial Intelligence”, American Bar Association, November 16, 2017, available at: https://www. americanbar.

org/news/abanews/publications/youraba/2017/december-2017/copyright-lawsandartificial-intelligence/ 48 Anthony Cuthbertson, “Robots will have Civil Rights by 2045, Claims Creator of ‘I will Destroy Humans’ Android”, Idependent UK, May 25, 2018, available at: https://www. independent. co. uk/life-style/gadgetsandtech/news/robots-civil-rights-android-artificial-intelligence-2045-destroy-humans-sophia-singularitya8367331. html

49 111 U.S. 53

could be granted copyright protection. This case was significant as it distinguished between mechanical and artistic creation. The court examined whether a machine-generated product should qualify for copyright protection and concluded that purely mechanical work does not inherently possess artistic merit. Following this reasoning, if AI-generated works are assessed with the same rigid approach, they would likely be ineligible for copyright protection. In Bleistein v. Donaldson Lithographing Co50. , the court reinforced the principles established in Burrow-Giles Lithographic Co. v. Sarony. This decision made a clear distinction between human creativity and artificial or abstract creations.

Writing for the majority, Justice Holmes emphasized the uniqueness of human personality in creative works, stating that copyright protection should apply only to works that contain "something irreducible, which is one man's alone. " This reasoning implied that works not originating from human imagination would not be eligible for copyright. However, in Alfred Bell & Co. v. Catalda Fine Arts, Inc. 51, the court adopted a more flexible stance. It lowered the originality threshold, ruling that a work need not be entirely novel but should not be a direct copy of an existing artistic piece. The court also allowed for unintended or incidental variations to be considered original. This decision offered some relief to those advocating for copyright protection of AI-generated works, provided they were not mere replications of pre-existing content.

While these rulings provide some guidance, uncertainty still surrounds the recognition of copyright for AI-generated works, leaving potential right holders in a legal gray area.

VI.MORAL RIGHTS AND AI

On this aspect, Hegel's notion of personhood rests upon self-consciousness, autonomy, and ethical life which form the basis for moral rights.52 In Hegel's words, a person is someone who is capable of being self-aware, rational and engaged in ethical and legal systems, with the possibility of claiming moral rights over the products of such production53. Thus, he can allege moral rights like attribution and integrity; these are derived from the idea that creative things are extensions of the personality and will of the writer. However, the very essence of self-

50 188 U.S. 239

51 191 F.2d 99 (2d Cir. 1951)

52 HegelCourses. (2020). Hegel's Concept of Sittlichkeit (Social Morality).

53 Dean Moyar. (2019). Hegel’s Fact of Reason: Life and Death in the Experience of Freedom. Argumenta, 4(2), 117-142

consciousness and autonomy for Hegelian personhood is missing in AI. The functioning of AI embodies none of those traits: algorithms and data process information without intentionality, self-reflection, or even ethical involvement. The expression of moral rights is considered to be necessary for the personal identity and expression of the author. Being only a tool and not a rational being, AI is, thus, precluded from claiming moral right. In addition, Hegel supports the notion of mutual recognition in society, which individuals recognize as moral agents with rights. AI cannot do this recognition, nor does it owe itself to ethical reasoning. Therefore, an essentially non-self-that-grounded morality cannot be normative. Under Hegel, then, moral rights for AI simply cannot exist.

They lack the essential predicates of personhood, disqualifying the artificial entity from both the legal and philosophical protection afforded to human creators. 54 Moral rights cannot be attributed to AI, as AI lacks the definitions underpinning such attribution of consciousness, intent, emotions, and ethical responsibilities. 55 As far as the moral rights or, in fact, human rights that may be attributed to an individual are concerned, they are the right to attribution and integrity; they deal with the intensely human aspects of creativity, personal expression, and the tie between an author and his or her works. Such rights show that artistic and literary works are not simply commodities but representations of the creator's personality, values, and intellectual labour.

For its part, AI does not get self-awareness or intentionality and has a further incapacity for emotions/weltanschauung such as pride, disappointment, or concern for reputation. Algorithms, data inputs, and statistical patterns operate with AI, not personal creativity or an intrinsic sense of identity. This is in many ways more about the protection of the human creator's reputation from the infringement of immoral alterations to what was supposed to be the message or integrity of the work; hence moral rights. Moral rights should not apply to AI since it has no personal stake involved and no subjective point of view regarding what is to be preserved as its "creations". 56Also, moral rights cannot attach to moral and legal responsibilities, which non-human AI cannot assume. Human authors defend their works before the courts or in the social arena.

Not so AI: it lacks agency, accountability, and moral deliberation. Moral rights would be effectively 54 Hegel, G. W. F. (1821). Elements of the Philosophy of Right (H. B. Nisbet, Trans. ). Cambridge University Press. (Original work published 1821)

55 Lai, K. (2015). Hegel and Respect for Persons. PhilArchive

56 Stefanini. (2021). The Moral and Ethical Implications of Artificial Intelligence.

meaningless if given to AI, since the crux of such rights lies in their recognition of human interests in art and intellect. Moral rights ought to be confined to those human creators who impart personal meaning, cultural significance, and ethical considerations upon their workqualities which AI as an advanced tool and not a sentient being, clearly cannot.57

VII. AUTHORSHIP AND OWNERSHIP DEALT UNDER DIFFERENT

JURISDICTIONS

The UK Copyright, Designs and Patents Act, 1988 (CDPA) addresses computer-generated works explicitly. According to the CDPA, a "computer-generated" work is one produced by a computer "in circumstances such that there is no human author of the work. "58 The rationale behind this provision is to acknowledge the effort involved in developing software capable of autonomously generating creative content. 59 Under Section 9(3) of the CDPA, the author of a "literary, dramatic, musical, or artistic work that is computer-generated" is considered to be "the person by whom the arrangements necessary for the creation of the work are undertaken. " Andres Guadamuz, a legal scholar, explains that this provision really is about authorship being attributed to the programmer rather than the user.

An example of this is in Microsoft Word, where Microsoft does not own copyright to documents written and created by users of this software. In contrast, the user gains copyright since he actively created the content60. Also, in Express Newspapers plc v. Liverpool Daily Post & Echo61, the court took into account that the computers were merely acting as tools, just like a pen, which gave further strength to the argument that copyright belongs to the one who wields the tool rather than the tool itself. The same route is followed in the United States, where an individual may claim copyright for an AI-assisted work when he proves that AI was merely a tool during the creative process. This 57 The Times. (2023). If robots have feelings, do they need rights?. https://www. thetimes. co. uk/article/if-robotshave-feelings-can-we-treat-them-as-slaves-zhprvv53l

58 The Copyright, Designs and Patents Act, 1988, s.178.

59 Nina Fitzgerald and Eoin Martyn, “An In-depth Analysis of Copyright and the Challenges presented by Artificial Intelligence”, Ashurst’s Website, March 11, 2020, available at: https://www.ashurst.com/en/newsandinsights/insights/an-indepth-analysis-of-copyright-and-the-challenges-presented-by-artificial-intelligence/ 60 Andres Guadamuz, “Artificial Intelligence and Copyright”, WIPO Magazine, October 2017, available at: https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#:~:text=Artificial%20intelligence%20is%2 0alr eady%20being,used%20and%20reused%20by%20anyone

61 [1985] FSR 306.

was reemphasized in the Naruto v. Slater62 case-or the "Monkey Selfie" case. In this case, selfies taken by a monkey that had grabbed the photographer’s camera led to a court battle over copyright. The U. S. court held that copyright can only be granted to human creators, thereby expressly barring animals and machines from holding authorship rights. Once we delve into AI algorithms or software capable of independently generating works that qualify as creative, the entire scenario changes. An observable gap between the human input and the final output generated by AI widens in cases wherein, the AI is treated as an "independent actor," and is seen producing content algorithmically, or in other cases, sequentially or non-deterministically. Thus, the thought arises that here the user acts only minimally, i. e. perhaps presses a button allowing an AI to create a work.

63 In this situation, the common-sense conclusion is that the programmer, being the person who designs and programmes the AI, is the one "who makes the necessary arrangements" for the creation of the work. A contrary point of view could claim that the creative input, in fact, rests with the programmer who programmed the AI with the right coding and algorithms based on the understanding that the AI processes the input received to analyse certain patterns and generate outputs all by itself. Sik Cheng Peng offers another interpretation of Section 9(3) of the UK Copyright, Designs and Patents Act (CDPA).

He propounds the idea that where active selection of the data put into an AI system is made by users, the users will be determined to set the process of creativity in motion, thus being regarded as the ones who made the "necessary arrangements" for the work, unlike the AI, the programmer, or the company that owns the AI. With regards to this, "computer-generated works" are not defined, thus distinguishing itself from the CDPA. Yet it does define an "author" of computer-generated literary, dramatic, musical or artistic works as the "person who causes the work to be created. "64 The interpretation of "authorship" was elaborated in Camlin Pvt. Ltd. v. National Pencil Industries. 65 The Delhi High Court ruled that a "mechanically reproduced printed carton" was

62 2016 U.S. Dist. Lexis 11041 (N. D. Cal. Jan. 23, 2016).

63 Nahide Basri, “The Question of Authorship in Computer-Generated Work”, Penn Law, University of

Pennsylvania, January 13, 2020, available at: https://www.law.upenn.edu/live/news/9691-the-questionofauthorship-in-computer-generated 64 Sik Cheng Peng, “Artificial Intelligence and Copyright: The Author’s Conundrum”, WIPO-WTO Colloquium Papers,181 (2018).

65 AIR 1986 Delhi 444.

not eligible for copyright protection because it was impossible to determine its author. The court further emphasized that copyright is granted only to natural persons from whom the work originates. Therefore, a machine cannot be the author of an artistic work or hold copyright over it. Similarly, in Tech Plus Media Private Ltd v. Jyoti Janda66, the Delhi High Court clarified that a juristic entity, such as a company, cannot be the author of a copyrighted work, although it may own the copyright under a contract with the actual author. In Australia, copyright protection applies only to the creator of an AI machine in relation to its source code, but not to the AI-generated work itself, due to the absence of human involvement in its creation. A more nuanced approach would be to assess authorship on a case-by-case basis rather than applying a rigid rule.

The idea of considering AI and human creators as joint authors is also problematic. Human beings do not exercise full control over AI operations, which means the relationship does not fit the legal definition of "joint authorship. " For instance, under the Indian Copyright Act, of 1957, a "work of joint authorship" is defined as one created through the collaboration of two or more authors, where their contributions are not distinct from each other. Since AI functions autonomously, it does not qualify as a joint author. Rich highlights another challenge—machine learning models often become so complex that even their original programmers struggle to understand how or why they produce certain results67. Moreover, designating both AI programmers and users as joint authors of AIgenerated works is equally problematic.

International copyright law, as codified in the Berne Convention of 1886, does not recognise "non-human authorship. "68 This stance is reflected in other global agreements, including the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, which incorporates the Berne Convention’s provisions, as well as the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty of 1996 (WIPO Internet Treaties). However, these treaties set only minimum common standards, allowing national legislations to provide broader protections. 69

66 Delhi High Court, September 29, 2014; available at: https://indiankanoon.org/doc/18739837/

67 Michael Rich, “Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment” 164

University of Philadelphia Law Review 871, 886 (2016). 68 Sam Ricketson, “People or Machines: The Berne Convention and the Changing Concept of Authorship”, 16(1) Columbia VLA Journal of Law and the Arts 1 (1991) 69 Dilan Thampapillai, “The Gatekeeper Doctrines: Originality and Authorship in Australia in the Age of Artificial Intelligence”, WIPO-WTO Colloquium Papers, 2019, p.no. 2.

An alternative approach could be to protect AI-generated works outside the conventional copyright system by adopting a sui generis framework. This system could provide limited protection, with shorter durations compared to traditional copyright laws. One suggestion is to set the protection period between 5 to 10 years. The rationale behind this proposal is that a shorter duration would reduce the risk of AI-generated content overshadowing human creativity in the marketplace, as AI works would soon fall into the public domain70. Sik Cheng Peng proposes that AI-generated works could be safeguarded under a sui generis right similar to the European Union’s Database Directive. This would prevent the unfair exploitation of AIgenerated content. However, a potential issue with this system is the possibility of AI owners failing to disclose the extent of AI involvement in the creation process.

Any new legal framework must ensure transparency regarding AI-generated works and their development process. Another possible avenue for protection could be through unfair competition laws. 71 WIPO is doing active work to examine these issues, especially on the questions of authorship and legal implications. Along with these considerations comes the question of copyright protection of "deep fakes"—AI-generated media that mimic the likeness, voice, and appearance of real individuals. The AI means are not the only difficulty concerning deepfakes, but also privacy violations, defamation possibilities, and serving as a conduit for misinformation. Again, when deepfake content is made with regard to some renowned face-well-known celebrities, leaders, or performers-there can be immense money-making opportunity.

But important legal questions arise in this case: Should there be a copyright in unauthorized deepfake content? If there is, what rights should the depicted person have under copyright law? Would there also be an arrangement for equitable remuneration for both creator and depicted person? However, with the swift development of AI technology, these issues will get worse, and therefore demands continued legal and regulatory efforts in such institutions like WIPO.

VII. CONCLUSION

To summarize, the speedy growth of artificial intelligence presents copyright law with a host of difficulties, such as definitions of authorship, ownership, and originality. Traditional legal 70 Andres Guadamuz, “Artificial Intelligence and Copyright”, WIPO Magazine, October 2017, available at: https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#:~:text=Artificial%20intelligence%20is%2 0alr eady%20being,used%20and%20reused%20by%20anyone 71 Brigitte Vézina and Brent Moran, “Artificial Intelligence and Creativity: Why We’re against Copyright Protection for AI-Generated Output”, Creative Commons, August 10, 2020, available at: https://creativecommons.org/2020/08/10/no-copyright-protection-for-ai-generated-output/

theories rest upon human-centric notions, such as Lockean labor, personality, and utilitarianism, and give way to some of these concepts when confronted with works generated by AI. Some jurisdictions opt for a model whereby authorship can be ascribed to a human programmer or user, while others advocate granting AI a form of legal personality, or propose the establishment of a sui generis protection. The problem of moral right remains another consideration, since AI lacks human sentiments, consciousness, or ethical accountability. As AI-generated content picks up pace, the law will have to adapt itself to maintain a balance between innovation, fair use, and protection for human creativity. A global harmonized response is imperative to take care of the discrepancies and develop clear, horizon-oriented policies that assure the productiveness of technology and protection of intangibles.