Introduction
After the advent of the Internet, the world had to develop new laws and regulations to work around the crimes that could be committed through such a versatile tool. The world stands at such a point yet again, after the advent of Artificial Intelligence [“AI”] and after witnessing its immense potential, the world is yet again trying to come up with laws and regulations to curb the offenses that can be committed through the use of such a powerful tool.
There are various offenses committed through the use of AI, but the scope of this article is limited to the copyright offenses that can be committed through its use. This article delves into how the world determines whether any content generated through the use of AI can be assigned a copyright or not, then compares it with the laws and precedents in India.
The Indian Landscape
In India, the main statute that governs copyright infringement cases is the Copyright Act, 1957 [“The Act”]. Through the bare reading of the Act, it is clear that the settled position of law is that the person who caused the creation of any computer-generated work in relation to any literary, dramatic, musical or artistic work would be deemed the author of that work.[1] Further, it is stated that the first owner of the Copyright shall be the author of the work.[2]
Moreover, in the case of Eastern Book Company v. D.B. Modak, it was held by the Hon’ble Court that “Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, coordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author.”[3]
While back in 2020, the Copyright Office of India accepted the application of an IP lawyer and an AI-based app owned by him and granted them Copyright protection. The lawyer Ankit Sahni and his AI-based app RAGHAV were denied Copyright protection in their first application, where they claimed RAGHAV to be the sole owner of the painting Suryast. They were given Copyright protection in their second application when they claimed it as co-authors of the artistic work.[4]
International Approach
- United States of America
The United States Copyright Office has previously issued a notice of registration guidance stating that an AI-generated work may be eligible for protection if AI was used as an assistive tool and the creative part of the work was done by a human. Further, the United States Copyright Office refused the Copyright to Suryast, which is registered in India, it was refused on the grounds that Mr. Sahni only decided on the elements of the artwork, while RAGHAV decided how those elements shall be incorporated, which was the creative part of the artwork.[5]
Moreover, there have been recent cases where the court determined the fate of AI-generated content in the realm of Copyright. In the case of Thaler v. Perlmutter, the Hon’ble Court ruled that “Numerous Copyright Act provisions both identify authors as human beings and define ‘machines’ as tools used by humans in the creative process rather than as creators themselves. Because many of the Copyright Act’s provisions make sense only if an author is a human being, the best reading of the Copyright Act is that human authorship is required for registration.”[6]
- United Kingdom
The United Kingdom has an explicit provision for computer-generated works, as per section 9(4) of the Copyright, Designs and Patents Act, 1988, the person who makes necessary arrangements for the creation of any literary, dramatic, musical or artistic work is deemed to be the author of the work.[7]
Further, the position of law in terms of originality was settled in THJ Systems Ltd & Anor v. Sheridan & Anor, it was ruled that “The Court of Justice has elaborated upon the requirement that the work be its author’s own intellectual creation in a number of subsequent judgments. What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch”.[8]
- Japan
The Copyright landscape of Japan is governed by the Copyright Act, 1970. It defines work as an expression of thoughts or sentiments that are creatively produced and fall within the literary, academic, artistic, or musical domain, while it defines author as the person who created that work.[9]
Moreover, the Japanese Government released a report titled “General Understanding on AI and Copyright in Japan”,[10] and it was published by the Legal Subcommittee under the Copyright Subdivision of the Cultural Council, where they posited their opinions that are not legally binding. It stated that if a person uses AI as a tool to express their thoughts or sentiments creatively, then such material may be considered work while the user of the AI would be considered the Author.
To determine whether AI has been used as a tool or not, the two factors laid down were: Creative Intention and Creative Contributions. Further, the amount and quality of the instructions, the number of attempts taken to generate the image while correcting the instructions and the selection made from the multiple outputs were the few factors that were mentioned in that report, which will be used to determine the copyrightability.
Key Takeaways
Across all of the jurisdictions, it can be observed that any content generated independently through AI without any human intervention is not copyrightable. The only way an AI-generated content may receive Copyright is when a specific amount of human creativity and control is involved in the creation and that threshold is different for each Jurisdiction.
In the United States of America, the Copyright laws insist on human predominance, which means that AI may assist, but human creative control must prevail. The refusal to register the Suryast painting that is already registered in India on the basis that RAGHAV made the key creative decisions demonstrates the difference between the threshold of creative control that is required. Though the Thaler v. Perlmutter decision reinforces that machines are tools and that human conception is a statutory requirement, just as Indian courts require clear evidence of human skill and creativity.
In the United Kingdom, Section 9(4) of the Copyright, Designs and Patents Act, 1988, similarly credits the arranger of the artistic work as the author. THJ Systems Ltd v. Sheridan confirms that a work must bear its author’s personal creative touch through free and inventive choices. This parallels India’s focus on the human who causes creation. Both jurisdictions demand demonstrable human input.
In Japan, the Copyright Act, 1970, defines a work as any creatively produced expression and an author as its creator. The non‑binding “General Understanding on AI and Copyright in Japan” advises evaluating creative intention and contribution by examining instruction quality, generation count with corrections and output selection. This functional test aligns with India’s requirement that human prompts and manual edits constitute the core of authorship, ensuring only AI outputs shaped by significant human direction qualify for protection like the Suryast picture by RAGHAV.
While the legislation around the world is developing at a steady pace, the legal systems need to incorporate such laws that encourage innovations in AI for the benefit of all stakeholders, but should also empower human creativity. As for India, we are on the right path, as by maintaining international harmonization simultaneously while addressing India-specific concerns, we would bring into existence an environment that facilitates AI innovation and motivates human creativity.
Author: Nakul Agarwal, 3rd year law student at National Law University Odisha
[1] The Copyright Act 1957, s 2(d)(vi).
[2] The Copyright Act 1957, s 17.
[3] Eastern Book Company v. D.B. Modak [2008] 1 SCC 1.
[4] Sukanya Sarkar, ‘India recognises AI as co-author of copyrighted artwork’ (Managing IP, 5 August 2021) <https://www.managingip.com/article/2a5bqo2drurt0bxl7ab24/exclusive-india-recognises-ai-as-co-author-of-copyrighted-artwork> accessed on 19 June 2025.
[5] ‘Ankit Sahni’s AI “Co-authored” Artwork Denied Registration by US, Continues to be Registered in India’ (SpicyIP, 15 December 2023) <https://spicyip.com/2023/12/ankit-sahnis-ai-co-authored-artwork-denied-registration-by-us-continues-to-be-registered-in-india.html> accessed on 19 June 2025.
[6] Thaler v. Perlmutter [2025] WL 839178.
[7] The Copyright, Design and Patents Act 1988, s 9(4).
[8] THJ Systems Ltd & Anor v. Sheridan & Anor [2023] EWHC 927 (Ch).
[9] The Japanese Copyright Act, 1970. s 2(1).
[10] Legal Subcommittee under the Copyright Subdivision of the Cultural Council, General Understanding on AI and Copyright in Japan(May,2024).
Link to similar articles: https://jpassociates.co.in/ai-biopiracy-digital-capital/
