AI-generated work can be original, so why can't AI be its author?

Why did an AI-generated artwork qualify as original but still fail to get copyright registration? A recent order draws a clear distinction between originality, authorship and ownership

The Copyright Office earlier this week rejected an application seeking copyright registration for an artwork with an artificial intelligence (AI) system listed as its author. But the rejection was not because the artwork failed the originality test.

 

In its order dated August 31, the Copyright Office found that an AI-generated artwork, called ‘A Recent Entrance to Paradise’, made through Stephen L Thaler’s AI system DABUS, satisfied the originality requirement under Section 13 of the Copyright Act, 1957. It also held that DABUS could not be recognised as the author under Section 2(d)(vi) of the existing law.

 

The application was ultimately rejected because Thaler continued to identify DABUS as the author, even after being given an opportunity to amend the authorship details.

 

Why the artwork cleared the originality test

Section 13 of the Copyright Act subsists in “original literary, dramatic, musical and artistic works”. However, the Act itself does not define the word “original”. The Registrar therefore applied the standard developed through Indian copyright jurisprudence.

 

The order referred to the Supreme Court’s decision in Eastern Book Company v. DB Modak. It said copyright does not require a work to be novel or inventive. It requires a “minimum degree of creativity”. The work must also be independently created and not copied from an existing work.

 

For A Recent Entrance to Paradise, the Registrar found that the artwork has a particular arrangement of visual forms, colours, tonal variations, spatial relationships and other compositional elements. The material before the Office did not show that the final composition reproduced an identified earlier work.

 

The court, in its order, separated originality from authorship.

 

“Section 13 examines whether the resulting work possesses independently generated, non-trivial expressive character; Section 2(d)(vi) separately identifies the legally recognised person to whom authorship of that work is attributed,” the order said.

 

The Registrar concluded: “The work accordingly satisfies the requirement of originality under Section 13 of the Copyright Act, 1957.”

 

The finding was limited to the material placed before the Registrar. It is key to note that the order specifically said it was not deciding the copyright status of every form of AI-assisted creation.

What Section 2(d)(vi) says about AI authorship

The Section 2(d)(vi) of the Copyright Act deals specifically with computer-generated literary, dramatic, musical and artistic works. The said section says that the author is “the person who causes the work to be created.”

 

The question before the Registrar was therefore not simply who performed the final computational operation. It was who, on the facts of this application, caused the particular work to be created.

 

Thaler had said that DABUS performed the core generative process. According to the application filed by him, he said he had designed and configured the system, while DABUS formed associations, generated candidate pathways, stabilised a configuration and produced the final image.

 

The order, however, found that Thaler had conceived and created DABUS, configured its operation, supplied the visual inputs, curated the linguistic inputs, provided descriptions connecting the material and initiated the process that produced the artwork. The Registrar held that Thaler was the “person who caused this particular work to be created”.

 

The order also drew a distinction between the system that generates an output and the legally recognised person to whom authorship is attributed.

 

It held that DABUS had no statutory recognition, civil personality or independent legal capacity. Recognising it as an author would effectively create a new category of technological juristic person. The order said that such a change was a matter for Parliament.

 

“DABUS cannot be entered as author under Section 2(d)(vi),” the order read.

What Sections 17, 18 and 19 mean

The question of authorship also affected the metrics around ownership.

 

Section 17 of the Act establishes the general rule that “the author of a work shall be the first owner of the copyright therein”, subject to specified exceptions.

 

Section 18 further allows the owner of copyright in an existing work, or the prospective owner of copyright in a future work, to assign copyright to another person, either wholly or partly and subject to the conditions specified in the provision.

 

Then, Section 19 sets out how such an assignment must be made. According to the clause, the assignment is not valid unless it is in writing and signed by the assignor or the authorised agent. It must identify the work and specify the rights assigned, the duration and territorial extent. It must also specify the royalty and other consideration payable.

 

That became important because Thaler's application named DABUS as ‘author’ and Thaler as ‘owner’.

 

The Registrar found that this could not be reconciled with Sections 17-19. If DABUS were the author, it would have to be capable of holding and transferring copyright. But the applicant's own case was that DABUS was not a “legal person” capable of doing so.

 

The order said, “If DABUS is the author and consequently the putative first owner under the general rule in Section 17, DABUS must possess the legal capacity to hold and transfer copyright.”

 

The Registrar also made clear that the problem was not that Thaler could never be the owner. If he were correctly identified as the statutory author, Section 17 would ordinarily make him the first owner, subject to any applicable exception or agreement.

Why the application was rejected

During a hearing on June 24, Thaler was given an opportunity to amend the authorship particulars and identify himself as the author under Section 2(d)(vi). He declined and continued to maintain that DABUS should be identified as the author.

 

The Registrar said the Office could not substitute a different author and allow an application on a basis that the applicant had expressly declined to adopt.

 

The order concluded that the application was being maintained on the basis that DABUS was the author and therefore rejected it.

How this differs from India’s RAGHAV episode

The DABUS case is not the first instance in which an AI system has been listed as an author in an Indian copyright application.

 

In an earlier case, Suryast, an AI-generated painting created using the RAGHAV Artificial Intelligence Painting App, was granted an owner title, which was later revoked.

 

The Copyright Office initially registered RAGHAV as a co-author of the painting along with lawyer and artist Ankit Sahni. In November 2021, however, the office issued a withdrawal notice seeking information about RAGHAV’s legal status and referring to Sections 2(d)(iii) and 2(d)(vi).

 

As of now, under the existing framework, an AI-generated work may satisfy the originality threshold, but the AI system that generated it cannot itself be treated as the statutory author unless it is a person recognised by law.