The rapid emergence of generative AI has posed several difficult questions, one of which is whether a work produced entirely by a machine can qualify for copyright protection? A recent development in the United States has sharpened this debate. The U.S. Supreme Court declined to review a decision refusing copyright protection to an artwork generated solely by an AI system. By declining writ of certiorari, the Court allowed lower Court rulings to stand, reinforcing a central principle of American copyright law that authorship requires human creativity.
The controversy arose when a computer scientist, Stephen Thaler, sought copyright registration for an artwork titled “A Recent Entrance to Paradise,” which he claimed had been generated autonomously by the AI system created by him. Thaler filed the application listing the AI system as the sole author and himself as the copyright claimant. The U.S. Copyright Office rejected the application on the ground that copyright protection requires human authorship. Thaler challenged the decision before the District Court of Columbia, arguing that ownership of the AI system entitled him to claim copyright in the output and that the Copyright Act should accommodate non-human creators. The Court rejected these arguments, emphasising that “human authorship” has long been understood as a foundational requirement of copyright law. The Court further rejected Thaler's attempt to invoke the work-for-hire doctrine, noting that a work cannot qualify for copyright ownership in the absence of a valid author in the first place.
On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed the District Court's reasoning and held that the Copyright Act of 1976 presupposes a human author. The Court found that several provisions of the statute are effective only if authors are natural persons and concluded that works generated entirely by AI fall outside the scope of copyright protection. In reaching this conclusion, the Court relied on the longstanding interpretation that copyright protects original expression produced through human creativity, rather than outputs generated autonomously by machines. The Court also noted that policy arguments in favour of recognising AI authorship were more appropriately directed to Congress rather than the judiciary.
While the American position now appears relatively settled, the legal landscape in India presents a more complex picture. The Copyright Act, 1957 contains an unusual statutory provision addressing computer-generated works. Section 2(d)(vi) provides that in the case of a literary, dramatic, musical, or artistic work that is computer-generated, the author shall be “the person who causes the work to be created.” This language appears to anticipate the possibility of works produced through automated systems. However, the provision was drafted in an era when computers functioned primarily as tools rather than autonomous creators.
The statutory framework, therefore, implicitly assumes the presence of human involvement in the creative process. The phrase “person who causes the work to be created” suggests that authorship ultimately rests with a human actor who initiates or directs the generation of the work. In the context of modern generative AI systems capable of producing sophisticated content with minimal human input, identifying this responsible “person” becomes legally uncertain. Potential candidates could include the developer of the AI system, the individual who provides prompts, or the entity that deploys the system in a commercial environment.
This issue has not yet been directly addressed by Courts in India. Nevertheless, existing jurisprudence provides some guidance on how such questions might be approached in India. The Supreme Court clarified in Eastern Book Company v. D.B. Modak that copyright protection in India requires a “modicum of creativity” and rejected the idea that mere labour or mechanical effort is sufficient to establish originality. The Court emphasised that originality lies in the exercise of skill and judgment reflecting intellectual effort.
Supreme Court's reasoning presents an immediate challenge for fully autonomous AI-generated works. If originality depends upon human intellectual contribution, a work produced independently by an algorithm may struggle to satisfy the requirement articulated in D.B. Modak case. In such circumstances, courts may find it difficult to attribute the necessary creative input to a human author.
Nevertheless, the Indian approach offers somewhat greater flexibility than the U.S. model. Section 2(d)(vi) potentially allows courts to attribute authorship to a human participant involved in the creation process even when AI plays a substantial role. This could permit copyright protection for AI-assisted works where meaningful human creativity remains present. The critical inquiry would likely focus on the extent to which human skill, judgment, and intellectual input shaped the final output.
The broader policy concerns, however, remain similar across jurisdictions. Copyright law historically seeks to incentivise human creativity by granting exclusive rights to authors. Extending protection to works generated autonomously by machines risks diluting this objective, while potentially granting expansive proprietary control over automated outputs.
As generative AI systems become increasingly sophisticated, copyright law will be required to draw clearer boundaries between human creativity and algorithmic production. In India, the interpretation of Section 2(d)(vi) will play a pivotal role in determining how these boundaries evolve. Courts may ultimately adopt an approach that focuses less on the presence of AI and more on the degree of human contribution embedded within the creative process. Such an approach would allow copyright law to adapt to ever changing technological changes, while preserving the foundational commitment to human authorship.
J.V. Abhay is Partner, Shardul Amarchand Mangaldas & Co. and part of the Intellectual Property Practice Group.
Garima Tripathi is an Associate in the Intellectual Property Practice at Shardul Amarchand Mangaldas & Co.
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