Creative robots, powered by powerful artificial intelligence systems and working autonomously, can develop novel artistic and other works that would be copyright protected if made by humans. This article discusses innovative robot artwork copyrightability. We believe autonomous creative robots can own copyrights to their creations. Copyright law's most essential principle, originality, poses the biggest obstacle to this idea.

This article revisits uniqueness. This article contends that the new 3A era—advanced, automated, and autonomous—requires a re-evaluation of originality, which is undefined under copyright protection under the Berne Convention. The absence of a precise definition makes the idea of originality unsuitable for creative robots' potentially "copyrightable" works.

The business and public are already confused by ambiguous, immeasurable, and disharmonized definitions of "originality." An key legal notion is unknown, prompting a quest for a remedy to minimise or lessen future problems. This article proposes a formal, objective approach to originality instead than the current subjective (or mixed) one. The nebulous, imprecise character of art supports the proposed objective approach to creative robot and digital tool artworks. A formal, objective, descriptive method is needed to answer the legal issue "what is original?"

Introduction
The use of artificial intelligence (AI) in the production of any particular piece of artistic work has always been a topic of discussion among those necessary parties. Generative AI systems and the artwork they produce raise important questions that border on authorship, licencing, and reproductive rights, amongst others. These questions stem from general policy concerns as well as the individual interests of the artist who was involved in the creation of the work[1]. The use of AI to create artworks also creates some contentious issues because it could potentially infringe on the intellectual property rights of others.

If, for example, a creative work is based on machine learning, a technique that enables an AI to learn for itself from data that it has been provided, then this perspective can be considered genuine. Shouldn't the person who produced the input (in this case, the data) on which a production is based also be the owner of the work that is produced as a result of that input? And even if the work were to be generated by an AI on its own, could it really be considered to be original?

Copyright laws have traditionally been based on a human creator who creatively, originally, and independently creates a work of art from the depth of his or her imaginations in such a way that it reflects his or her personality, ideas, and belief systems[2]. This has been the case from the perspective of copyright laws across multiple jurisdictions.

This article seeks to critically examine the legal issues involved in the copyrightability of artificial intelligence art using a multi-jurisdictional approach, citing unique challenges the situation creates, and suggesting possible areas of legal reform in order to deal with this eventuality that is quickly becoming pervasive in our world today. In order to reconcile this divergence, this article seeks to critically examine the legal issues involved in the copyrightability of artificial intelligence art using a multi-jurisdictional approach.

AI Or Computer-Generated Artworks

Artists have used computers to make digital art for 50 years, but they had to write code to achieve the ultimate aesthetic work. In recent years, artists have used computers to learn this aesthetics and apply them to hundreds of images. Generative Adversarial networks are used in most AI artworks. Ian Goodfellow's 2014 discovery allowed researchers to make realistic computer-generated pictures of people's faces[3]. Although this technology has been infrequently used to make contentious "deepfake" movies, it has led to more advanced AI that can accurately recreate photos and drawings.

AI favours spectacle and kitsch, and a few artists and industry professionals believe machines cannot create like humans. "Replicating artistic skills involves also simulating human thinking and reasoning, especially creative thinking," say opponents of computational creativity. Algorithms and information processing systems cannot do this. They say this is because these algorithms can't capture the human mind's brilliance and creativity, and these works are developed with a lot of human input. An AI artwork sold at Christie's Auction House in New York for $432,500 was 45 times its anticipated price of $7,000-$10,000[4].

The Next Rembrandt is another AI art piece that has sparked scholarly debate on the copyrightability of AI-generated works by human artists. The Next Rembrandt was created by data scientists, engineers, and art historians who used traditional data analysis to deeply analyse and recreate Rembrandt's painting styles, style, and subject matter and transfer that knowledge into software that could generate the new work using the latest 3D printing technology.

AI systems are more autonomous than ordinary software. Complex AI systems can accomplish tasks without human input. In order for us to understand this feature, we must emphasize some familiar tools these systems require to produce these works. A paintbrush, even if it is helpful in creating an artwork has very little to do with the end result (the artwork) and the user of the paintbrush is the owner of the artwork. Diverse tools are needed to make different goods, but the user (author) is still accountable for the creative contribution.

Machine learning also helps AI systems replicate familiar art styles. Machine learning is a sub field of AI that may be defined as the study of algorithms and systems that improve their performance on a particular job when they are provided with additional data. The performance of AI systems based on machine learning relies crucially on the quality of the data. Thus, the data provider must be acknowledged.[5]

Understanding an AI system's autonomy, especially regarding copyright, is crucial Hard work. AI systems have various degrees of automation, depending on how much control the human operator has. To identify such levels of independence, "in the loop," "on the loop," and "out of the loop" are commonly used interchangeably. An art-creating robot may need a human operator to learn from prior paintings and be monitored during implementation . Technological, social, legal, and ethical variables may influence the correct degree of autonomy (dependability).[6]

The Concept Of Authorship In Ai Or Computer-Generated Art

AI-created art appears to present pertinent questions about the copyrightability of some art genres. This is strongly related to the fact that, in some jurisdictions, copyright ownership can only be vested in a human author under particular copyright legislation. This reasoning appears to be based on the highly recognized US case of Naruto v. David John Slater[7], sometimes known as the "Monkey Selfie case." Naruto, a crested macaque, snatched up a photographer's camera and took photos of himself.

The photographer, David Slater, and Wildlife Personalities Ltd released the "Monkey Selfies" pictures in a book and claimed copyright ownership of the images. People for the Ethical Treatment of Animals (PETA) and Dr Antje Engelhardt sued on Naruto's behalf as next friends, saying Naruto was the creator of the images and that Slater and Wildlife Personalities violated Naruto's copyright. Naruto's claim was rejected, and the Ninth Circuit upheld, ruling that Naruto lacked standing to sue under the Copyright Act since animals cannot sue for infringement.[8]

The court reasoned that "Section 101 of the Copyright Act does not clearly empower animals to bring copyright infringement claims under the legislation." Although corporations can hold copyrights and sue under the Copyrights Act, the court emphasized that under US Supreme Court law, companies are considered "persons," and unlike animals, these organization's "are founded and owned by people."

Because of an earlier Supreme Court rule that copyright law exclusively protects "the products of intellectual effort and are built on the creative capacities of the human mind," the US Copyright Office will not approve a registration unless the author is a human person. According to the Copyright office, this excludes "works created by a machine or mere mechanical process that functions randomly or mechanically without any creative input or interaction from a human author."[9]

Human authorship was also emphasized as the standard for copyright protection in the Australian case of Telstra Corporation Ltd v. Phone Directory Property Ltd[10], where humans were involved in gathering and organizing the collection of materials for phone directories, but this collection phase was not geared toward the creation of the work. The extraction step of sorting the directories in alphabetical order and transferring the material into electronic form was the work's creation.

Because there was no human participation in the extraction step, it was determined that copyright did not exist in the telephone directories. The Full Federal Court emphasized in this instance the necessity that "the work must begin with an author or joint writers." The lack of a human author behind Telstra's directory collection resulted in the absence of copyright protection in the directories.

European copyright law, which consists of international copyright treaties to which the EU is a party, EU legislation, and cases at the Court of Justice of the European Union (CJEU), appears to have followed this general trend, though EU national governments have discretion to import their respective interpretations on authorship of creative works. Notable international treaties include the Berne Convention, the World Intellectual Property Organization's Copyright Treaty, and the TRIPS Agreement.

The degree of intellectual production necessary to achieve the requirements of originality was a major topic considered at the commencement of the Berne Convention. The degree of expertise and work involved was often stressed in common law systems, whereas the amount of inventiveness was valued as a basis in civil law systems[11].

The Berne Convention, on the other hand, defines an author by stating that if the author's name is included, he or she is presumed to be the creator of a literary or creative work in the absence of proof to the contrary. As a result, it is clear that the purpose of this regulation is to provide some certainty while also lessening the burden of evidence for right holders.

The WIPO Copyright Treaty and the TRIPS Agreement[12], on the other hand, are quiet on the concept of 'author,' despite the fact that both accords demand conformity with the Berne Convention. Furthermore, the European Union's Court of Justice has stated on numerous occasions, most notably in its landmark decision of Infopaq International A/S v. Danske Dagbaldes Forening[13], that copyright only applies to original works, and that originality must reflect the "author's own intellectual creation." This is interpreted to signify that an original work must represent the creator's personality, implying that a human author is required for a copyright work to exist.

However, there has been an increasing push, particularly in Europe, to shift the conventional perception of human authorship since the Naruto case. This new approach is best exemplified by Section 9(3) of the Copyright, Designs and Patents Act 1988 (CDPA), which states that "in the case of a literary, dramatic, musical, or artistic work that is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken". Furthermore, section 178 of the CDPA defines a computer produced work as one that "is generated by computer in conditions such that the work has no human author".

The reasoning for this rule is to make an exemption to all human authorship criteria, so honouring the industry that goes into developing a programme capable of generating art forms, even if that creative impulse is driven by a computer. These views were echoed in the Irish Copyrights and Related Rights Act No 28/2000 (S.2(1)) and the New Zealand Copyright Act 1994 as modified (S.2). The upshot of this important revision was to broaden the definition of human authorship to include those who created the arrangements for a robot or machine to create any specific work. This pertains to the previously described human in the loop scenarios.

Can Creative Robots Be The Authors Of Artworks?

Creative robots already produce a tremendous number of creative works which could be copyrightable.[14] Imagine a portrait produced by a creative robot. The artist is not a human being, but rather a robot driven by artificial intelligence systems. The subject of the portrait is unknown to the human operators of the AI system until the creative robot has generated the image. Such a creation cannot meet the subjective concept of originality. However, the portrait might meet the concept of objective originality suggested by this article and hence, would be copyrightable.

Subject Matter Eligibility

As one of us explains in another piece, creative robots are autonomous, creative, independent, and unexpected, making them qualified for authorship. Copyright protection requires a minimum of imagination, focus, and, most importantly, originality. The work must be at least creative. The job must be tangible. Third, it must be vaguely original. A work must meet all three criteria to be copyrightable.[15] Only copyrightable works fulfil all three conditions.

Creative robots can get copyright protection if these requirements are met. Inventions by AI-controlled robots are Copyrightable. Creative robots readily match the first two requirements, but originality may be difficult, especially given the subjective nature of uniqueness. Eligible subject matter should receive intellectual property rights. 44 Because of their basic 10 traits and the objective definition of uniqueness, creative robots may easily meet all three requirements. Creative robots may get copyrights on their ideas if they can generate new works without intention.

THE MISUNDERSTANDING OF THE CURRENT (TRADITIONAL) COPYRIGHT REGIME
Copyright law presently excludes creative robots' works. We argue that the old legal system exclusively considers human authors behind the creative process. Policymakers have evaluated the human behind the creative robot's works and pronounced that person the creator and entitled to copyright protection when using this traditional method.[16]The standard method misunderstands creative robots' autonomous, independent creation of new works. Creative robots require rethinking "originality." The objective approach to originality is important to identify creative robots as legal entities, like corporations, which can possess copyrights.

The Programmers Of AI Software And The Artworks Produced By Creative Robots

The AI software programmers might argue that creative robots' creations are theirs. Following the old method of identifying the human author behind the innovative robot, the programmer or operator would receive copyrights. Traditional artists have copyright immediately. Many contributors create the algorithms that fuel the next generation of creative AI systems. However, the creative robot may create its own works. If humans designed the AI software programme, may the programmer claim copyright on AI system-generated works[17]

Are Artworks Produced By Creative Robot's Derivative Works?

Rearden LLC and Rearden Mova LLC's case against The Walt Disney Company posed the question of whether creative advanced technology system-produced art is derivative. The complaint argues that Rearden, which owns Mova technology, owns derivative works like the Beast's animal-like visage from Beauty and the Beast, which was created utilising unique Oscar-winning effects employing MOVA.

"Disney used the stolen MOVA Contour systems and methods, made derivative works, and reproduced, distributed, performed, and displayed at least Guardians of the Galaxy, Avengers: Age of Ultron, and Beauty and the Beast, in knowing or willfully blind violation of Rearden Mova LLC's intellectual property rights," the lawsuit states. The derivative works paradigm assumes that a computer programme or system's output is a derivative work of the proprietor of the copyrighted programme or patented system. The copyright holder also owns the output under U.S. law.

This conclusion on creative robots' production assumes that computers need a lot of human input to create art. Congress created the National Commission on New Technological Uses of Copyrighted Works (CONTU) to address computer-generated work creation. CONTU determined that the user should have authorship rights if they significantly contribute to the computer's output. However, complex, advanced AI systems offer more intricate and challenging challenges than traditional copyright law.

This is because creative robots' creations are owned separately from the robots and technology. When the computer creates most of the output independently and creatively without duplicating or violating other writers' rights, the owner is less likely to be deemed the original source. Thus, Rearden's derivative works technique may fail since we don't know if the works are derivatives or fresh and original. If a human provided input that altered the artwork, such as by introducing the robot to fresh data, the finished piece may be the result of another human's creative involvement.

Thus, this human, not the programmer or robot owner, may have copyright protection for the composition. Disney's cinematographer, director, and actors created the Beast and others.[18] We don't dispute the programmer's copyright claim in this piece. However, we disagree that the programmer owns the AI system's products and processes. Can robots create art? Originality might determine the case.

Copyright legislation can be nullified as useless and outmoded. However, if we keep the copyright law, we should reassess threshold notions like originality and give them new definitions to accommodate the 3A (advanced, automated, and autonomous) age and, in our debate, a digital author of artworks as the original. This approach may better reflect creative robots' behaviour. First and first, we must redefine originality.

Licensing And Other Related Rights In Computer Generated Or AI Art

The development of AI systems being able to efficiently duplicate works of art with exceptional precision utilizing data acquired from earlier works has raised concerns about the import of licencing and its impact on the completed piece. The Next Rembrandt was a case in point, in which machine learning algorithms assessed old artwork by the Dutch great artist and developed a new portrait in the Rembrandt style[19].

The licencing issue appears to have been resolved due to the fact that existing copyright on the original work may have elapsed due to time and the industry used by the AI programme to generate a duplicate, so making it an original artwork in its own right.

Scholars claim that the work of AI systems is highly unexpected because the system continually and automatically evolves with additional data. In short, AI systems are not only more precise, of greater quality, and faster at processing information due of their intelligence components, but they are also capable of producing unanticipated, unique, and creative artworks and other goods that are unknown to their programmers. In a nutshell, they may have the effect of significantly modifying the completed work so that it bears little or no resemblance to the original.

However, AI artists that build on prior art face the dual challenges of appropriation and inspiration, and where a line must be set, particularly when a computer programme is given reproductions of earlier artworks.[20] However, prior appropriation rulings in the United States indicate that some uses may be protected under fair use provided the outcome is sufficiently transformative from the source work. As a result, if an AI artist sells or exhibits AI art that is significantly similar to the underlying work, the AI artist is unlikely to be able to rely on fair use.

As a result, AI artists who want to sidestep the muddy waters of fair use and transformative rights should only employ public domain materials. AI artists might also consider analyzing their creations to see if they are sufficiently transformative before releasing them to the public to avoid any infringement claims. However, I believe that if an art piece is sufficiently transformative that the completed product looks nothing like the source, it should be granted copyright protection not for the programme itself, but for the person(s) who produced the programme.

AI art licencing has come a long way, and with new template licence and collaboration Agreements for AI art recently launched by the Harvard Law School's Cyber Law Clinic, efforts are now being made to protect these artworks from possible infringement and educate AI artists on the importance of protecting their works.

Indian Perspective For Protection Of Computer-Generated Works

AI generated art is in full swing and the Indian Copyright Office is confused. AI generated art is created autonomously by artificial intelligence without creative contribution from humans . Such works qualify as 'computer generated works' under the Indian Copyright Act. Computer-generated works were included as a category of works in 1995, presumably at a time when AI was not making art.

For such works, copyright law confers authorship to the "person who causes the work to be created". The question of whether AI can be named as an author of a work is debatable. There is no Indian precedent to suggest that authorship can be conferred to computer / software. There is also no policy guidance from the Indian Copyright Office on whether only humans can be considered authors.

The Indian Copyright Office is also unsure how to deal with such applications. As reported, in 2020, the copyright office rejected an application which listed AI (RAGHAV) as the sole author for an artwork. However, a second application was filed where a natural person and an AI (again (RAGHAV) were named as co-authors for another artwork. This copyright office granted registration in this case. The basis of grant of registration is not clear.

It appears that the Copyright Office granted this registration by mistake, without applying its mind, as it issued a withdrawal notice, around one year later. In the withdrawal notice, the Copyright Office shifts the burden on the applicant to 'inform the Copyright Office about the legal status of the AI tool Raghav Artificial Intelligence Painting App'.[21]

The (human, co-author) applicant is now arguing that a copyright registration cannot simply be 'withdrawn' once it has been granted. The procedure is a rectification proceeding, to cancel the registration, before court. As reported, this notice was issued around November 2021. The current status of this proceeding is unclear. But as per the website of the Copyright Office, the status of this application is still 'registered'.

Admittedly, this is old news. However, given that AI generated artwork has not died out and has instead picked up momentum, this issue is still worth considering.

Until this application is actually struck off the register (or corrected, if such corrections are permissible), it may operate as precedent for subsequent applications. While the Copyright Office may now believe that copyright protection is conditioned on human authorship, its hands are tied. If subsequent applications are denied, applicants may approach courts citing wrongful rejection. Either way, it looks like the Copyright Office may need to spend time, money and resources fighting this issue before court. This could have been avoided if the office had not flip-flopped in its decision in the first instance.

It is surprising to see copyright registrations being handed out without thought. This is especially concerning given that High Courts are now elevating the status of copyright registrations from mere registrations (results of non-mandatory, administrative processes) to bullet-proof licenses. the Gujarat High Court recently held that certificates of registration from the Copyright Office provide immunity from copyright infringement. As he explains, this interpretation is incorrect.

On one hand, there is a lack of legal precedent as to whether or not AI can be classified as an author. A Parliamentary Standing Committee has recommended 'revisiting of IPR legislations and implementing a strong IPR framework' in order to 'extract benefits from AI'. However, the law itself remains unchanged and unclear. On the other hand, it may be procedurally possible to secure copyright registration naming AI as a co-author and also use the registration as a shield against claims of copyright infringement. A worrisome paradox.

New technology is puzzling and countries world over are grappling with the same issue. For instance, the US Copyright Office has categorically rejected such applications on the grounds that a 'work meets legal and formal requirements of copyright protection only if it is created by a human author'. The UK Intellectual Property Office, on the other hand, understands the evolving nature of computer-generated works and is taking a wait and watch approach.

So I think Indian authorities should probably plan out their approach to tackle such issues rather than take hasty action and create precedents that can turn out to be dangerous in the future.

Conclusion
Creative robots' creations, which may be copyrightable if generated by humans, are now questioned due to artificial intelligence. This question makes us reconsider uniqueness. Formalizing originality will help determine whether digital creations deserve copyright protection. International originality standards begin.

The Berne Convention helped standardize copyright protection. The Berne Convention covers copyright protection's most crucial requirement—originality—broadly. Countries can use their own originality definitions because there is no universal definition. "Notwithstanding the necessity for monopoly protection of intellectual producers to foster creativity and authorship, unduly wide protection would impede, rather than advance, the objective," the US legal system self-restricts.

The Copyright Act of 1976 left originality undefined, although that the Constitution protects "useful arts". The judge must define uniqueness since a minimal amount of innovation is not enough. Formal, objective criteria should assess originality, we believe. Private property is protected under US copyright law because of its worth, but evaluating value without considering creativity and uniqueness is unfair. Aesthetic analysis may result from valuing value over effort. US law addresses art aesthetics.

This article proposes a more formal, descriptive framework for artwork, bypassing judges' aesthetic approach. Judges outlines the aesthetic approach: "artistic uniqueness is not the same thing as the legal definition of originality in the Copyright Act. Artistic uniqueness may lie in a detail, subtlety, or tint too tiny for a judge to detect. Descriptive study of expression and effort should establish artwork uniqueness.

Thus, the objective viewpoint encompasses the expression's external relationship, the audience's perception, and the work's similarity to others. A descriptive approach will help judges and juries set an unbiased originality threshold.

End-Notes:

1. Baraniuk, C. (2016) Computer paints 'new Rembrandt' after Old Works Analysis, BBC News. BBC. Available at: https://www.bbc.com/news/technology-35977315 (Accessed: October 16, 2022).
2. Yanisky-Ravid, S. (1970) Generating rembrandt: Artificial intelligence, copyright, and accountability in the 3A era - the human-like authors are already here - a new model: Semantic scholar, undefined. Available at: https://www.semanticscholar.org/paper/Generating-Rembrandt%3A-Artificial-Intelligence%2C-and-Yanisky-Ravid/66c5e36fb0d127b58dc9f4d13d6051e7fb23d0e4 (Accessed: October 16, 2022).
3. Digital Art Movement Overview (no date) The Art Story. Available at: https://www.theartstory.org/movement/digital-art/ (Accessed: October 16, 2022).
4. Ibid.
5. WIPO Copyright Treaty(WCT)
6. Understanding the significance of perception in AI (no date) INDIAai. Available at: https://indiaai.gov.in/article/understanding-the-significance-of-perception-in-ai (Accessed: October 16, 2022).
7. Naruto v. David John Slater, 888 F.3d 418, 420 (9th Cir. 2018)
8. Jacopo Ciani, Learning from Monkeys: Authorship Issues arising from AI Technology, Universitas degli Studi di Torino, Italy
9. Christies. Available at: https://www.christies.com/features/A-collaboration-between-two-artists-one-human-one-a-machine-93 (Accessed: October 16, 2022).
10. Telstra Corporation Ltd v. Phone Directories Company Pty Ltd (2010) 194 FCR 142
11. Berne Convention for the Protection of Literary and Artistic Works as amended September 28, 1978
12. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
13. Infopaq International A/S v. Danske Dagbaldes Forening
14. See, e.g., the discussion on patents in Aashish R. Karkhanis & Jenna L. Parenti, Toward an Automated First Impression on Patent Claim Validity: Algorithmically Associating Claim Language with Specific Rules of Law, 19 STAN. TECH. L. REV. 196 (2016)
15. Copyright Basics, U.S. COPYRIGHT OFF. 1 (Sept. 2017), https://www.copyright.gov/circs/circ01.pdf; see also National Copyright Guidelines, Requirements for Copyright Protection, SMARTCOPYING, http://www.smartcopying.edu.au/copyright-guidelines/copyright---a-general-overview/1-4-requirements-for-copyright-protection
16. 35 U.S.C. §§ 101–02; Jonathan R. Tung, Who Owns the Creation of an Artificial Intelligence?, TECHNOLOGIST , http://blogs.findlaw.com/technologist/2016/08/who-owns-the-creation-of-an-artificial-intelligence.html
17. Minnesota Journal of Law, Science & Technology (no date) Minnesota Journal of Law Science & Technology | University of Minnesota Law School. Available at: https://scholarship.law.umn.edu/mjlst/ (Accessed: October 16, 2022).
18. Anna Gaca, "The World's First Songs Composed by Artificial Intelligence" Are Neither First nor Entirely Artificial,
19. ESPOSTI, M.D.E.G.L.I., LAGIOIA, F. and SARTOR, G. (2019) The use of copyrighted works by AI systems: Art Works in the data mill: European Journal of Risk Regulation, Cambridge Core. Cambridge University Press. Available at: https://www.cambridge.org/core/journals/european-journal-of-risk-regulation/article/abs/use-of-copyrighted-works-by-ai-systems-art-works-in-the-data-mill/14F19C37272A39D6913CBA0BDF7C5B58 (Accessed: October 16, 2022).
20. Autor, D., Mindell, D.A. and Reynolds, E.B. (2022) Why 'the future of AI is the future of work', MIT Sloan. Available at: https://mitsloan.mit.edu/ideas-made-to-matter/why-future-ai-future-work (Accessed: October 16, 2022).
21. Legal, D. (no date) News, Deriş Legal. Available at: https://legal.deris.com/en/news/copyright-and-anti-piracy/289-india-copyright-office-recognizes-co-authorship-of-ai-for-the-copyrighted-work (Accessed: October 17, 2022).