Jurisprudential theories and their applicability in copyright protection with the evolution of AI.

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"Property rights are the result of rights that one has in his own labour" ~ Robert Nozick.(1)

The “right” emphasised by Philosopher Nozick binds one's natural right to the result of one’s labour - a basic principle that’s been under scrutiny since the rise of Artificial Intelligence (AI) and its large language models (LLM). Philosophers like Plato, Locke, Kant, and Hegel too discussed rights in terms of property ownership as the fruits of one’s labour. Moreover, they believed that the civil right of property was a reflection of one’s personality and autonomy.

The emergence of intellectual property (IP) laws, such as copyright law, has given new meaning to civil rights concerning property. Based on jurisprudential theories, it will be intriguing to observe how jurists' perspectives on copyright laws evolve, especially in the context of advancing technology, particularly with AI. It is challenging the traditional IP frameworks by blurring the line between ownership of creative works and the extent of protection under existing statutes.

Furthermore, the question before us is whether the theories of Natural right, Plato's theory of the Idea, or Hegelian Personhood theory remain coherent in defending copyright law amid the rise of generative AI. Since copyright plays a crucial role in protecting artistic works, computer programmes, and individual creativity, it becomes important to explore how these theories align with the concept of copyright.

Theory of Idea and Dichotomy ~ Plato:

The theory of ideas, introduced by the Philosopher Plato, a student of Socrates, centres on the concept of vision. Plato simplified his theory of ideas into two parts: first, some ideas are static and serve as objects of knowledge; second, the ideas about which we have only opinions are objects of opinion.(2) Thus, by reformulating Socrates' concepts of idea and form, Plato argued that perfect ideas or forms constitute a separate, timeless world and that we cannot truly identify objects without referring to them. Therefore, he emphasised that ideas/knowledge need to be expressed to bring them into effect for the betterment of society. (3)

Copyright laws, like Plato's theory of ideas, protect the expression or result that arises from the idea rather than the idea itself. The modern notion of legal concepts recognises the importance of the expression that emerges from ideas or forms.

This dichotomy theory of idea and expression was first established by the Supreme Court of India in the case of R.G. Anand v. M/S Deluxe Films & Ors. (4) The bench held that the specific expression or form derived from an idea is protected from infringement. In this case, the audience perceived the film as a replica of the infringing work, resulting in infringement. Therefore, this judgment perfectly aligns with Plato's theory of ideas/form, which holds that knowledge, or an idea, is necessary to identify something similar, as observed in the above-mentioned case. (5)

In the case of AI, as we know, the technology forms patterns and detects correlations to produce output. Thus, it is challenging to relate AI to the realm of form or idea, as its creations are based solely on the data available to it. To connect Plato's theory with the existing copyright act, one can argue that mere form or expressions created from ideas generated by AI do not fall within the scope of AI, since AI does not comprehend the concept of originality in expression.

When a human prompts an AI to create a work based on their ideas, the distinction is blurred. Current laws typically protect human-created works and expressions. This raises questions about whether a work produced jointly by a human and an AI would be protected.

In India, the Department for Promotion of Industry and Internal Trade (DPIIT) had published its “Working Paper on Generative AI and Copyright” (6), an attempt to construct laws for AI and copyrighted work. The paper emphasised that AI cannot own copyrighted work. Section 2(ffc) (7) of the Copyright Act 1957 does not address AI-generated outputs; therefore, AI-generated work cannot be accommodated under the current statute. Thus, the entity that tries to get copyright for AI-generated work must fulfill all requirements to be recognised as an author under the act, to be eligible for the protection.

Aligning with DPIIT theory, the law of the horses suggests that the existing general laws be applied to these specialised AI issues, as traditional laws can handle AI-related issues. Therefore, applying general copyright principles and Plato’s theory to the issue at hand, AI cannot receive ownership under the copyright act.

In a hypothetical situation, if AI were recognised under copyright law, it would be a significant failure for cultural diversity and public interest. As IP law encourages creators and innovators to develop their intellectual work, be it the result of their traditional knowledge or ideas, so they can gain profit while helping society.. Therefore, extending IP protection to AI- generated work would hinder public interests and the take away incentives from creators.

Natural Right Theory and Theory of Labour ~ John Locke

While Plato’s theory suggests owning one’s original idea, similarly John Locke’s labour and natural right theory emphasises humans’ right to property, life, liberty and reward to labour (8). Many countries' constitutions are based on the natural rights theory, which holds that the most crucial rights for human beings are inalienable, a view emphasised by the influential English philosopher John Locke. He believed in mankind's natural right to property. He elaborated on that belief by stating that "State is not the creator of the property, mankind is, which is the fruit of his labour, and State is the protector of that property” (9). Thus, it perfectly explains his claim and his reasoning, clarifying the stance he would take while advocating for copyright protection. I believe it would depend on the notion of "labour", as property rights are not just about physical labour, but also intellectual labour. Therefore, when an individual puts his intellect to work to create a unique artistic or creative work, he deserves the reward for that labour, which would be the right to own his work and to receive protection against anyone else infringing it. (10)

After examining the similarities between Natural Right Theory and Copyright law, another question to analyse is: How would a natural rights theory view AI-generated work under copyright law? The modern notion of natural rights is not limited to life, liberty, and property, but extends to privacy in this digital realm. Therefore, with that view, there is an evident problem in balancing AI-generated work and infringing copyright, which is a fundamental right under the theory. This issue, noted by various jurisdictions, concerns primarily the Text and Data Mining Exemption (TDM) - a software that analyses data or can be said to be copyrighted work used to train AI. In the United States, Europe, Japan, and other countries, TDM for research purposes has been governed by the Fair Use Doctrine, whereas India has yet to determine whether it will be recognised as an exception under the Fair Use Doctrine or ruled as infringement.

In the notable case, Sarah Silverman v. Open AI, Inc, (11) it was a clear case of TDM. The issue raised was whether the use of copyrighted work for training AI LLMs falls under the Fair Use Doctrine. The US district judge ruled that, to claim copyright infringement, authors of the book had to show similarity between the output produced by the AI and the copyrighted books. Since the AI's production did not closely resemble their works, it was determined to fall under the fair use doctrine, and no infringement was found.

The DPIIT (12) paper addressed the previously mentioned issue and proposed a solution. It stated that AI systems could license copyrighted works from their authors to avoid copyright infringement. This aligns with John Locke's theory: creators' rights should be protected without hindering technological advancement, striking an appropriate balance between rights and innovation. As a result, the individual enjoys his right free from any kind of infringement.

Personhood Theory ~ G.W.F Hegel

Hegel understood property rights with a more personal touch; he viewed them as more than rights, unlike Locke & Nozick. He noted that a property came with a sense of personhood, giving individuals reliability and freedom. (13) He had emphasised that providing a property right is not just a right; it goes way beyond that, as ownership affirms a person's existence and control, solidifying their personhood and proving it to be more than an economic power.

Immanuel Kant had also agreed with Hegelian theory by stating that, "some control over the property is essential for the development of the personality". Both he and Hegel have viewed property more as a free choice to be an autonomous self rather than as a utility, copyright being no exception.

As Locke, Socrates, and other jurists believed, ethics provided a strong foundation for reward under Labour Theory. Thus, Sittlichkeit, or ethics, as per Hegelian theory, was described as a property-right inclination (14), along with ethics and morals, which came with societal duties. Hegel and Kant noted that achieving a balance between personal rights, such as the right to property, and communal obligations contributes to the common good. Parallely, Copyright Law has moral rights, protecting not just the intellectual labour of a creator but also his/her identity put into their work. The copyright law has maintained a balance between personal rights and ethics by providing the “Fair Use Doctrine”, i.e., section 52 of the act (15), it mentions the exceptions which fall under the doctrine and do not infringe the copyright.

Applying the natural right theory elaborated by the above-mentioned Jurists to the issue of whether AI should be recognised as an Author under the Copyright Act? The narrative that would arise is: how can AI-owned work be inclusive of personality rights and understand ethics or morals? Hegel and Kant place strong emphasis on the right to confer a sense of personhood on an individual, which is unique to humans. Even copyright law focuses on providing moral rights to creators, recognising that they put not just their labour but also their personality into the work. AI strains the view of personhood, as it lacks innate moral personhood and human input into AI creativity can be minimal.

Section 2(d) of the Copyright Act (16) defines "author" as the person who causes a work to be created, whether it is a literary, dramatic, musical, or artistic work that is computer-generated. Indian Law explicitly denies AI any moral rights or copyright protection under the act, as it mandates that a human must be the author under the definition. Thus, the natural right theory explaining the fundamental right of property would not directly support AI as an author. To fall within the law, the work must be created by an individual to be called an "author".

Therefore, as Hegelian principle states, "Property's finest embellishment is freedom and is in itself a substantive end" (17). Copyright, as a form of property, first finds its expression in the freedom of its creators. If AI is recognised as an "author," it risks losing embodiment of liberty and autonomy, as even unregistered works are protected under moral rights.

Conclusion:

To answer the questions raised in the introduction, it is evident that the current approach to AI copyright remains closely linked to traditional legal principles. Locke, Plato, and Hegel remain relevant because they emphasise the originality of ideas and the connection between personhood and property. Whereas technology is devoid of any intangible feelings, making it difficult to recognise it as an author.

AI presents complex trade-offs between fostering innovation and maintaining incentives for creators, which legislators must carefully balance. Copyright law is not only about protection; it also fosters economic growth through licensing and royalties, contributing to international trade and development. Hence, in light of the theories discussed in the context of AI, AI does not question the foundations of copyright law; instead, it underscores the need to protect human creativity.

References

Jurisprudential theories and their applicability in copyright protection with the evolution of AI.

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