Who Owns Copyright In Generated Arts Created By AI? Justice Gautam Patel Highlights New Legal Challenges

Former Bombay High Court Judge Justice Gautam Patel highlighted the need for legislation to regulate 'Deepfakes' and flagged the challenges that may arise in addressing the issues with them. Speaking at LiveLaw's 5th Shamnad Basheer Memorial Lecture On 'AI, Trademarks, And Copyright: Emerging Issues', Justice Patel said, "New legislations and building awareness about detecting and recognising deep fakes are going to be challenges that lie ahead".He then explained the recent trend of 'deepfakes', where AI-generated fake imageries dupe the viewer as original images."The issue is grave when one considers the generative adversarial neural networks - what happens here is that one machine creates a fake and passes to another machine which detects the flaw in the fake and reports back, thus the adversarial process. The first machine goes to correct the flaws using its generative power and bounces back to the test machine, this adversarial process, not very different from what one sees in law Courts continues in this manner until the final result is a nearly perfect rendition but none the less a fake video, music etc""This problem is exacerbated when deepfakes driven by AI are so good that it is impossible for the brand owner, let alone the judge to tell one from the other. In a real world scenario consider what you would have to bring to court to substantiate a case against an indistinguishable AI deepfake. The very prospect should give the IP Bar sleepless nights," Justice Patel said explaining how such trends can affect registered trademarks and established brand reputations.Copyright Law And AI : A Zone Of Twilight Justice Patel, while referring to the recent suit filed by news media ANI against ChatGPT, in the Delhi High Court, addressed a relevant question that seems to be the topic of discussion in the IP field lately- "Who owns the copyright in generated works of art, music, literature created by AI? Is it the user who prompts the AI or the AI itself?"Notably, Asian News International (ANI) has filed a copyright infringement suit before the Delhi High Court against OpenAI Inc, which founded ChatGPT, alleging unauthorised use of its original news content.He explained that AI may lack the human work required to get copyright protection which is the 'sweat of the brow' principle. The principle mandates that even though a work may not be original, it can be copyrighted if the author has put considerable efforts and skills into making it. Justice Patel illustrated how AI should not be confused with a tool in helping manifest the creative human work, as it was a creator in itself. He referred to how in 2016 a group of museums and researchers in the Netherlands unveiled a new art piece generated by a computer after analysing 1000s of artworks of the 17th-century Dutch Artist Rembrandt.Another example was a short novel written by a Japanese Computer Programme in 2016 that reached the 2nd round of the national literary prize. He also mentioned Google's AI company DeepMind which created a software that can generate music by listening to a recording."The point is that AI is no longer just a tool like a paintbrush and easel, things used in the creative process to generate original works that 'sweat of the brow' qualify for copyright protection""The newest iteration of AI, the algorithm is no tool, it is a creator, and it is bringing into existence a work of and on its own. It is actually making decisions."Justice Patel went on to share an experiment he did with ChatGPT prompts, where he prompted the AI to give opening lines sounding like the author Leo Tolstoy. He added, that while the AI gave a generative response, his role in the creation was, as he said, "to create on my own, arguably, entirely originally, the keywords or phrases that generated this result."However, it posed another issue which is whether would there be a copyright in his own unique arrangement of keywords and phrases?He highlighted that this aspect would similarly apply to AI-generated images as well. Using any of the popular AI image generation tools online - one can create seemingly original works based on a unique arrangement of keywords and phrases. In such scenarios, where lies the copyright, Justice Patel wondered?Terming the present technological advancement a 'Twilight zone in copyright law', he emphasized the upcoming challenges for the Court to understand where a line would be drawn to determine infringements."This is a twilight zone in copyright law. How on earth would you begin to bring infringement or passing off action or both in a situation like this?"When it comes to AI images, the challenge is rather doubled as now one can use results generated by AI to feed as prompts to generate AI images, making it a double AI work."How much of the original is too much for AI purposes? Remember that in AI image creation we have a sort of double battle - uniquely composed texts are used to trigger an AI-composed image"Understanding The Potential ...

Who Owns Copyright In Generated Arts Created By AI? Justice Gautam Patel Highlights New Legal Challenges

Anmol Kaur Bawa

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