OPINION | When AI creates, who owns the IP rights?

Generative AI is reforming the creative field by producing artwork, music, and software code with little human input. Tools like ChatGPT, Midjourney, and DALL-E have made it difficult to distinguish between creativity produced by humans and that created by machines. This trend brings forth a crucial legal issue: who possesses the IP rights when AI creates a work?

Traditional copyright laws are founded on the premise that every protected piece needs a human creator. As AI continues to produce content that appears original, long-standing notions of authorship and ownership are facing challenges across different legal systems, including in India.

Copyright ownership and the Indian position

Under Section 13 of the Copyright Act, 1957, copyright protects original literary, dramatic, musical, and artistic works. Section 17 further provides that the author is generally the first owner of copyright, subject to specified exceptions.

The concept of authorship is defined under Section 2(d) of the Act. Significantly, Section 2(d)(vi) states that for a computer-generated literary, dramatic, musical, or artistic work, the author is “the person who causes the work to be created.” Although this provision recognises computer-generated works, it was introduced in 1994, decades before the development of advanced generative AI.

Consequently, it does not directly address situations where AI systems generate content with minimal or no human intervention.

Copyright protection also requires originality. In Eastern Book Company v. D.B. Modak (2008), the Supreme Court emphasised minimum creativity, raising doubts about whether fully AI-generated works qualify for protection.

AI as a tool: The human authorship approach

AI can be viewed as a tool rather than an independent creator. Under this approach, the user is considered the author if they exercise significant creative control through prompts, selection of outputs, and subsequent modifications.

In such cases, AI functions like any other creative software, allowing existing copyright principles to remain applicable.

The human authorship model becomes difficult to apply when a user merely provides a prompt, and the AI generates a complete work independently.

In such cases, most creative decisions are made by the AI, creating an “authorship gap.”

Although the output may appear original, it lacks the human intellectual contribution traditionally required for copyright protection. Moreover, Section 2(d)(vi) does not clearly identify whether authorship belongs to the user, the developer, or the platform, leaving significant scope for interpretation.

Should AI content be public domain?

Another perspective is that the fully AI-generated content should enter the public domain because copyright is intended to protect human creativity.

However, while this approach is legally consistent, it raises concerns since AI developers invest significant resources in creating and training these systems.

Without any protection, incentives for innovation may be reduced.

The case for a special protection framework 

To address this concern, it is proposed to have a separate legal framework for AI-generated content that grants limited protection based on the investment of AI developers rather than authorship.

Such protection would safeguard developers’ economic interests without recognising AI as a legal author.

The rise of generative AI has challenged traditional copyright principles based on human authorship. A balanced legal framework should distinguish between AI-assisted works, which involve significant human creativity, and fully AI-generated works, where human input is minimal. While copyright may continue to protect the former, the latter may require a different regulatory approach.

The differing positions of jurisdictions such as the United States and the United Kingdom further demonstrate the lack of a global consensus on the treatment of AI-generated content.

The question of who owns intellectual property when AI creates a work has no simple answer. Generative AI challenges the old idea that every copyrighted work must have a human author. While AI-assisted creations often fit within existing copyright rules, fully autonomous AI-generated works reveal major gaps in today’s legal system. As technology keeps developing, copyright law must change to balance the interests of creators, users, and AI developers. The future of IP law will depend on striking a balance between preserving the human-centred foundations of copyright and accommodating the growing creative capabilities of artificial intelligence.

The author is senior associate (trademark and copyright) at S&A Law Offices.

The opinions expressed in this article are those of the author and do not purport to reflect the opinions or views of THE WEEK.