The AI-IP Conundrum: Exploring the New Dimensions of Creativity & Liability- Human Being Vis-À-Vis Artificial Intelligence

Abstract

The regime of Intellectual Property has always been contoured along the technological advancements, be it Guttenberg’s printing press, computer software or the recent advancements like blockchains, NFTs or even Artificial Intelligence. The umbrella of IPR adapts itself to the new dimensions of subject matters. The bundle of rights conferred under the ambit of Copyright protection vests with the author, currently, which refers to a human author. According to Hegel, an author’s work is an externalization of his personality, creativity, individuality and artistic fervors, and presently these attributes are specific to mankind . AI systems are assisting and even replacing human beings in creating new subject matters, however, the future is not far away when the onus of this creativity will totally shift to non-human entities.
The notion of authorship is challenged with the possibility of a non-human author, this pertinent question is raised with respect to the subject matter created by AI systems. The works are created by machine learning of the AI systems. The key question raised is ‘who the author for such works should be, the developer who has created the AI system, the user who prompts the AI system to generate subject matter or the AI system itself?’ Another quintessential debate it raises is of ‘Fair Use Doctrine’, since these AI systems such as large language models [LLM] chatbots employ the database available in the public domain and even generate its responses derived from the same, whether it will be a question of infringement, or will it be considered as fair use.
Such AI systems have had a disruptive shift within the Copyright and Patent domain. This paper will aim to explore the new contours of authorship, possibly hinting at a new co-authorship model or even the possibility of creating a legal fiction of ‘digital personality’ for AI systems, which might be the answer for liability questions. It will carefully analyze the new E.U AI Act, 2023 , DMCA Act, 1998 and comparatively analyze these legislations vis-à-vis the Copyright Act, 1957 and Patent Act, 1970 to suggest possible amendments and suggest a plausible model to answer the aforementioned questions.