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Updated: Mar 11, 2021

Author: Parijaat Puspam, IV Year of BBA.,LL.B(Hons), from The ICFAI University , Dehradun

The Authorship of copyright produced by non- humans is currently one of the most debatable topics emerging not only in the field of Intellectual Property but also in the field of Criminal law, civil law, the law of torts, etc. The invention of Artificial intelligence (AI) is a boon for many industries, and it is expected that in the near future AI technology will be utilized at the individual level.

AI refers to the simulation of human intelligence in machines that are programmed to think like humans and mimic their actions. The term may also be applied to any machine that exhibits traits associated with a human mind such as learning and problem-solving. We all know that AI is capable of creating music, compiling data, painting etc. Now the question arises whether the creation of any artistic, musical, literary work by AI is eligible to be protected under Copyright law?

According to present copyright legislation, we need a natural person to whom the exclusive rights of copyright vested. If we refer to George Wilhelm Friedrich Hegel’s personality theory which is often used to justify IPR, According to this theory, any work or an invention would belong to its author or inventor because it is the manifestation of the creator or inventor’s personality. Personality is the reflection of an individual’s will. But in the case of AI; machines owe no personality, then how can we grant copyright rights to an AI machine. Many research scholars demanded that we need to redefine our present legislation and include AI under the definition of authorship. They argued for the inclusion of AI under the definition of authorship for the following reasons –

1. it is most accurate as the AI is functionally acting as an inventor.

2. it will facilitate appropriate attribution of ownership and chain of title.

3. it will protect the rights of inventors because it will prevent people from receiving an undeserved acknowledgment.

Judicial Interpretation

The question of whether a natural person is the author or not is not new. In the case of Naruto, a monkey snatched the camera from the plaintiff and took his own selfie. The People for Ethical Treatment of Animals (PETA) sued a wildlife photographer and contented that the selfie was taken by a monkey. The series of purposeful voluntary action by a Monkey, unaided by the plaintiff, hence the copyright of that picture belongs to a monkey and not to the plaintiff. The Court of Appeal the 9th circuit affirms the decision of the trial court and held that “the animal had constitutional standing but lacked statutory standing to claim copyright infringement of photographs known as the “Monkey Selfies.” The panel held that the monkey lacked statutory standing because the Copyright Act does not expressly authorize animals to file copyright infringement suits.

In the case of Shenzhen Tencent v. Shanghai Yingxun, Tancent Technology developed a writing assistance name “Dreamwriter”. On August 20, 2018, they published a report and mentioned that the above content was created by a dreamwriter. The defendant in this case, without the permission of tancent republished that article on his own website. The Tancent company sues Shanghai yingxun for infringement of copyright. Now two questions are involved before the Chinese Court - whether the involved article was ‘original’ as per the Chinese law, and second, whether copyright of the article subsisted in the Plaintiff.

In the first issue, the court held that the Article which is in dispute is created by a dreamwriter who possesses a certain degree of originality, therefore that creation is liable for copyright protection, and while deciding the second issue, the Court declared the plaintiff as an author by interpreting Section 13 of the Chinese copyright Act –

“Except where otherwise provided in this Law, the copyright in a work shall belong to its author. The author of a work is the citizen who has created the work. Where a work is created according to the will and under the sponsorship and the responsibility of a legal or entity without legal personality, such a legal person or entity without legal personality shall be deemed to be the author of the work."The citizen, legal person or entity without legal personality whose name is indicated on a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.”

The article in question was a work created by the overall intelligence of multiple teams and multiple divisions of labor presided over by the Plaintiff, which reflects the needs and intentions of the Plaintiff as a whole, and the Plaintiff bears responsibility externally. Therefore, the article in question is considered to be a legal person work created by the Plaintiff.

It is clear from the above-mentioned that natural person is prima – facie requirement for authorship, but there is a conflict that arises in the case where a Programmer created AI software.

Example – any device which is capable of creating music and that device sold by the programmer to a user. A user by using AI created a new sound track, that soundtrack went famous on the market. Now the question arises to whom the Authorship Right of Copyright vest?

Possible Solutions

The solution to these issues can be divided into the following parts –

1. A Case where AI requires human assistance for creation –

If AI is dependent on the human for creation, that human is considered the Author of that creation, example – games like Clash of Clan, Mine craft, in which the User needs his own intellect to create an imaginary city/wall/palace then that user has copyright over what he was created .

2. A Case where AI does not require Human assistance –

In case were AI independently able to create any artistic, musical, literary work, then the copyright of that work must be vested upon the author, not to the user of that AI.

For example, snake mobile game, PUBG, where the user can only enjoy and cannot create anything per-se.In such a case the programmer is entitled to get authorship right over that creation. A programmer is the one who applies his intellect, effort, money to create that AI, and he shall be given copyright protection over such work which is created by AI.


AI is boon technology that need proper regulation because there are chances that in the future when AI technologies will be enhanced and capable of do things like humans. It will become a threat to the existence of humans. Redefining the definition of copyright and include AI as an author under the Copyright Act is not an appropriate solution because at present it is impossible for any AI to create any copyright-protected work without human interference, direct or indirect. If in the case where AI created any copyright-protected work, in that case there is always a programmer or user behind such creation who is entitled to the incentive created by AI.


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