AI and Copyrights in India: Navigating Innovation and Intellectual Property in the Digital Age

Abstract

Artificial Intelligence (AI) has introduced significant challenges to India’s copyright framework, which traditionally recognizes human authorship. The Copyright Act, 1957 does not explicitly address works created by AI, resulting in legal ambiguities regarding ownership and protection. This article examines the tension between AI-generated content and existing copyright law, analyzing statutory provisions, judicial precedents, and potential reform approaches. As AI is projected to contribute substantially to India’s economy, resolving these legal uncertainties becomes crucial for fostering innovation while protecting intellectual property rights. The article argues that India must develop a nuanced legal framework that acknowledges human-AI collaboration without compromising the foundational principle that copyright rewards human creativity.

Introduction

Artificial Intelligence has evolved from a futuristic concept to an everyday reality, producing paintings, music, literature, and software code that rival human creations. Generative AI tools like ChatGPT, Stable Diffusion, and Midjourney have democratized access to AI-powered creativity, triggering complex legal questions about intellectual property rights, particularly in copyright law.

In India, AI is projected to add nearly US$957 billion to GDP by 2035,[^1] transforming creative industries, research, and business operations. However, this technological revolution brings profound copyright challenges—from determining authorship of AI-generated works to establishing the legality of using copyrighted material for AI training datasets. Indian copyright law, rooted in the Copyright Act, 1957, was designed in a pre-AI era. While the law rewards human creativity, it has yet to fully account for autonomous machine outputs. This legal lag creates uncertainty for developers, artists, and policymakers alike.

The allocation of authorship and ownership of potentially copyrightable works generated by AI presents a fundamental challenge. Although multiple actors participate in AI development—programmers, data scientists, users—the immediate creator of AI-generated output is the AI system itself. This raises a critical question: can a machine be recognized as an author under copyright law?

In contrast with rapid technological development, law inevitably lags behind innovation. As one commentator observed, “Policy and law are always a step behind innovation, and that is almost by design.”[^2] Copyright law currently provides no clear answer regarding who should be deemed author and owner of AI-generated works. This legal uncertainty poses dangers for the AI industry. Absent legal certainty, companies and individuals may be deterred from investing monetary and creative resources in AI system development, potentially disrupting progress in this critical technological domain.

This article examines India’s copyright framework in the context of AI-generated works. It analyzes statutory provisions governing copyrightability, explores whether machines can be recognized as authors, discusses liability issues in infringement cases, and considers potential reform approaches. The analysis demonstrates that while AI challenges traditional copyright concepts, thoughtful adaptation of existing legal principles—rather than wholesale abandonment—offers the most promising path forward.

Background: Computer-Generated Works and the AI Revolution

Computer programs have been used extensively in the generation of copyrighted works since the 1970s. Initially, computer-generated works created few copyright problems. The reason was straightforward: computer programs were considered mere tools supporting creative human activities. These programs functioned like sophisticated stationery items—instruments requiring human operation to produce creative works.

The situation has fundamentally changed with modern AI. Contemporary AI systems are no longer tools alone; they possess the potential to generate works independently by making autonomous decisions without human intervention at the point of creation. This qualitative shift from tool to autonomous creator lies at the heart of current copyright challenges.

Early computer-generated works involved substantial human creative input at every stage. A human conceived the idea, selected parameters, made creative choices, and directed the computer’s operations. The computer merely executed human instructions with greater speed and precision than manual methods allowed. Copyright law comfortably attributed authorship to the human directing the process.

Modern generative AI operates differently. Systems trained on vast datasets can produce novel outputs based on minimal human prompting. A user might input “create a landscape painting in impressionist style,” and the AI generates an entirely new image without further human intervention. The creative decisions—composition, color palette, brushwork simulation—are made by algorithmic processes, not human choices. This autonomous creativity challenges the human-centric foundations of copyright law.

Copyrightability Under Indian Law

Statutory Framework

Section 13 of the Copyright Act, 1957 establishes the categories of works in which copyright subsists in India:

Section 13. Works in which copyright subsists

(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,—

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) sound recording.

The Act further specifies territorial requirements for copyright protection, distinguishing between published and unpublished works, and establishing citizenship or domicile requirements for authors.[^3]

Critically, subsection (2) requires that copyright shall not subsist in works unless certain conditions regarding publication location and author’s citizenship or domicile are met. For unpublished works other than architecture, the author must be a citizen of India or domiciled in India at the date of making the work.

The Originality Requirement

The requirement that works be “original” forms the cornerstone of copyright protection. Indian jurisprudence interprets originality to require two elements:

Independence: The work must be independently created by the author, not copied from pre-existing works.

Creativity: Some degree of intellectual skill, judgment, and creativity must be exercised in the work’s creation. The threshold is relatively low—the work need not be novel or unique—but it must reflect more than mechanical copying.

This originality requirement inherently assumes human authorship. The concepts of “intellectual skill” and “judgment” presuppose a human mind capable of creative thought. When applied to AI-generated works, the originality requirement becomes problematic. Can an AI system exercise “judgment” or “intellectual skill” in the legally relevant sense?

Author and Authorship

Section 2(d) of the Copyright Act defines “author” in relation to different types of works. For literary, dramatic, musical, and artistic works, the author is the person who creates the work. This definition implicitly assumes human agency—a “person” in legal terminology traditionally refers to human beings (and in some contexts, legal entities like corporations, which are ultimately controlled by humans).

Current statutory provisions do not recognize AI as a copyright holder. The authorship requirement effectively excludes AI systems from independent copyright ownership. This exclusion rests on the foundational premise that copyright exists to incentivize and reward human creativity, encouraging individuals to invest time, effort, and resources in creating original works that benefit society.

Can a Machine Be an Author?

The Central Question

Section 17 of the Copyright Act, 1957 provides that the author of a work shall be the first owner of the copyright therein. This provision raises acute questions when AI generates works without human intervention at the point of creation. A person who commissions or prompts AI to create a work might claim authorship, but this claim becomes tenuous when the AI generates the work autonomously, making creative decisions independent of human direction.

The authorship question has puzzled legal systems worldwide. Three broad approaches have emerged:

First approach: Recognize AI systems as authors, granting copyright protection to AI-generated works under existing copyright frameworks.

Second approach: Deny authorship to AI-generated works, placing such works in the public domain where anyone may use them freely without permission or payment.

Third approach: Create sui generis protection—a specialized legal framework distinct from traditional copyright—to govern AI-generated works.

Implications of Recognizing AI Authorship

If AI systems were recognized as authors and AI-generated works protected under copyright law, it would fundamentally transform copyright’s philosophical foundations. Recognizing “machine creativity” as equivalent to “human creativity” places both on the same pedestal, contradicting copyright’s traditional rationale of incentivizing human creative effort.

Conversely, if AI-generated works remain unprotected by copyright, the law expresses a clear preference for human creativity over machine output. This preference serves important policy objectives. Elevating machine creativity to equal status with human creativity, or granting machine creativity primacy, risks undermining human creative endeavors in the long run. If AI-generated works receive the same protection as human-created works, economic incentives might shift toward AI production, potentially diminishing the social value placed on human creativity and the human creative process itself.

Practical Problems with AI Authorship

Treating AI as an author creates numerous practical and legal difficulties:

Imperfect outputs: AI-generated works may contain flaws, biases, or harmful content. AI systems can produce biased language, defamatory statements, obscene material, or content inciting violence based on caste, creed, or religion. Fixing civil and criminal liability becomes problematic when the “author” is not a legal person. While the offending work might be deleted or the AI software banned, irreparable harm may already have occurred.

Infringement liability: If an AI-generated work is “substantially similar” to an existing copyrighted work, how can the AI be held liable as an infringer? Without legal personhood, AI cannot be sued, pay damages, or be subject to injunctive relief. This creates enforcement gaps in copyright protection.

Transfer of rights: Copyright ownership includes the right to transfer or license rights to others. If AI is deemed the author, it cannot transfer ownership absent legal personhood. This renders the copyright economically meaningless, as the AI cannot commercially exploit its own works.

Moral rights: Many jurisdictions, including India, recognize moral rights that protect the author’s personal and reputational interests in their works. The Delhi High Court in Amar Nath Sehgal v. Union of India[^4] eloquently described moral rights:

In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral rights of the author are the soul of his works. The author has a right to preserve, protect, and nurture his creations through his moral rights.

Moral rights inherently relate to human feelings, emotions, and reputation. These rights are meaningless when attributed to machines lacking consciousness, feelings, or reputational interests.

Comparative Perspective: The Monkey Selfie Case

The U.S. case Naruto v. Slater[^5] (popularly known as the “Monkey Selfie” case) provides instructive analogy. A wild macaque monkey took selfie photographs using a photographer’s unattended camera. The photographer published the images, and a dispute arose over copyright ownership. Animal rights advocates argued the monkey should own the copyright.

The U.S. court held that copyright protection extends only to works created by human authors, not animals or machines. The court reasoned that copyright’s constitutional and statutory foundations presuppose human authorship. Absent Congressional action explicitly extending copyright to non-human creators, courts lacked authority to recognize animal or machine authorship.

While India operates under different constitutional and statutory frameworks, the underlying logic applies. Copyright law’s structure, purpose, and terminology assume human creativity. Extending authorship to non-human entities requires explicit legislative intervention, not judicial interpretation.

Liability in Copyright Infringement Involving AI

Section 51 of the Copyright Act, 1957 governs civil liability for copyright infringement. The provision makes clear that anyone who, without authorization from the copyright holder, reproduces, distributes, performs, displays, or adapts a copyrighted work may be held civilly liable for infringement.

When AI systems generate works that infringe existing copyrights, determining liability becomes complex. Multiple stakeholders may bear responsibility:

AI developers: Those who created the AI system and trained it on datasets that may include copyrighted works.

AI users: Individuals or entities that prompt or direct the AI to generate specific works.

AI deployers: Organizations that make AI systems available to others.

The AI system itself: Though lacking legal personhood, the AI is the immediate source of the infringing work.

When AI-generated works lack a clearly defined owner, determining who bears liability for infringement becomes exceptionally difficult. If the AI-generated work itself receives copyright protection, who can sue when that work is infringed? If no human can claim ownership, the work may be effectively unenforceable despite theoretical copyright protection.

This creates a troubling asymmetry: humans may be held liable when AI infringes others’ copyrights, but no one can enforce copyrights in AI-generated works. This asymmetry may need legislative correction to ensure fair and functional operation of copyright law in the AI era.

Potential Reform Approaches

Maintaining Human-Centric Copyright

The most conservative approach maintains copyright’s traditional focus on human creativity. Under this approach, AI-generated works lacking substantial human creative input would not receive copyright protection and would enter the public domain immediately upon creation.

This approach preserves copyright’s philosophical foundations and avoids the practical problems associated with recognizing AI authorship. However, it may reduce incentives for AI development if commercial exploitation of AI-generated works becomes impossible. It also creates line-drawing problems: how much human input suffices to qualify for copyright protection?

Attributing Authorship to Human Actors

An intermediate approach attributes authorship of AI-generated works to humans involved in the creative process:

The AI developer or programmer: As creator of the tool that produced the work.

The AI user: As the person who directed or prompted the AI’s creative output.

The data provider: If the work derives substantially from copyrighted training data.

This approach maintains copyright’s human focus while providing protection that incentivizes AI development and use. However, it requires careful delineation of which human contributions suffice for authorship and how to allocate rights among multiple contributors.

Sui Generis Protection

A third approach creates specialized legal protection for AI-generated works distinct from traditional copyright. This sui generis regime might provide shorter protection terms, different exclusive rights, or alternative allocation of ownership.

The European Union’s Database Directive provides precedent for sui generis protection of subject matter that doesn’t fit traditional copyright categories. A similar approach for AI-generated works could balance incentives for AI development against public access concerns.

Hybrid Approaches

Practical solutions may combine elements of different approaches. For example:

• AI-generated works with substantial human creative input receive full copyright protection attributed to the human contributor.
• AI-generated works with minimal human input receive limited sui generis protection.
• Purely autonomous AI-generated works enter the public domain.

Such hybrid approaches require careful statutory drafting to provide clear guidance while remaining adaptable to technological evolution.

The Path Forward for India

India faces critical choices in adapting copyright law to the AI era. Several considerations should guide reform:

Preserving human creativity: Copyright should continue primarily rewarding human creative effort. This principle has served well in incentivizing cultural production and should not be abandoned lightly.

Clarifying legal uncertainty: The current ambiguity regarding AI-generated works creates risks for developers, users, and copyright holders. Legislative clarification is urgently needed to provide predictable legal frameworks for commercial planning.

Balancing interests: Reform must balance multiple stakeholder interests—human creators whose works train AI systems, AI developers investing in technology, AI users seeking to exploit AI-generated content, and the public interest in robust creative production and access.

International harmonization: Given AI’s global nature and international copyright treaties, India should consider international developments while crafting domestically appropriate solutions.

Flexibility for evolution: AI technology evolves rapidly. Legal frameworks should be sufficiently flexible to accommodate technological changes without requiring constant legislative amendment.

Conclusion

India stands at a critical juncture. Restrictive copyright rules may stifle AI innovation and economic growth, while unregulated AI use risks undermining human creators’ rights and destabilizing copyright’s foundational principles. The challenge lies in crafting a balanced, forward-looking legal framework that recognizes human-AI collaboration, clarifies the status of AI-generated works, and ensures fair use of copyrighted material in AI development.

The global trajectory demonstrates that adaptability, nuanced definitions, and proactive legislative engagement will be key to ensuring AI becomes a driver of creativity rather than a source of unending legal disputes. India’s Copyright Act, while nearly seven decades old, has proven adaptable to technological change before. With thoughtful reform that preserves copyright’s human-centric philosophy while acknowledging AI’s transformative potential, Indian law can provide the legal certainty necessary for continued innovation while protecting the creative contributions that enrich Indian society.

The fundamental question is not whether AI can or should be recognized as an author—the answer, grounded in copyright’s purpose and structure, is almost certainly no. Rather, the question is how to fairly attribute ownership and responsibility for AI-generated works, how to incentivize beneficial AI development, and how to ensure that copyright continues serving its constitutional purpose of promoting human creativity and cultural progress in the digital age.

References

Legislation

1. The Copyright Act, 1957 (India)
2. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), 1995

Cases Cited

1. Amar Nath Sehgal v. Union of India, 2005 (30) PTC 253 (Delhi High Court)
2. Naruto v. Slater, 2016 U.S. Dist. LEXIS 11041 (N.D. Cal. Jan. 23, 2016)

Secondary Sources

1. ‘4IP Council, What is Artificial Intelligence and Why Does It Matter for Copyright?’ (2018)
2. Amanda Jerome, ‘Artificial Intelligence “Game Changer” for IP Law, Legal Experts Say’ The Lawyer’s Daily (2 March 2018)