The Registrar’s order left open how a future application might be treated if it identified an AI system only as the technology through which a work was generated, without attributing authorship, ownership or legal personality to that system.

The Indian Copyright Office recently considered whether a work generated by an artificial intelligence (AI) system could receive copyright protection in India. Dr Stephen Thaler had applied in March 2022 to register copyright in an artistic work titled "A Recent Entrance To Paradise" (hereinafter the "Artwork"). Dr. Thaler named DABUS (short for Device for the Autonomous Bootstrapping of Unified Sentience), an AI system invented by him, as the author.

To consider the application, the Copyright Office examined: (a) whether the Artwork met the originality threshold under the Indian Copyright Act, 1957 ("the Act"), (b) who should be treated as the author of the Artwork, (c) whether an AI system could possess the legal personality required for authorship and ownership, and (d) whether DABUS could instead be identified as the technological generator. It concluded that the Artwork was sufficiently original to qualify for protection, but that DABUS could not be recognised as its author. Under the Act, authorship had to vest in the person who caused the work to be created. The Copyright Office found Dr. Thaler to be the author, whereas the application identified DABUS as the author. On this ground, it was rejected.

The four issues considered by the Copyright Office, and its findings on each, are discussed below.

1.       Originality of the Artwork

The first issue was whether the Artwork met the originality threshold under Section 13 of the Act. In broad terms, an artistic work must contain independently created expression; it cannot merely reproduce an existing work or result from a purely mechanical process.

It was DABUS that had produced the final visual form of the Artwork. Dr Thaler and the Amicus Curiae argued that the Act does not require a human being to personally produce every part of the final expression. On this view, the use of a computer-generated process should not, by itself, exclude a work from copyright protection.

The Registrar accepted this argument; the final composition had emerged independently through DABUS's generative process. Therefore, it satisfied the limited requirement of originality under Section 13.

2.       Author of the Artwork

For a computer-generated literary, dramatic, musical or artistic work, Section 2(d)(vi) of the Act identifies the author as "the person who causes the work to be created." Dr. Thaler argued that DABUS should be treated as the author because it generated the final artistic expression while his role was limited to setting up and activating the system.

The Registrar rejected this position, emphasising that Section 2(d)(vi) focuses on the 'person' who caused the work to be created, not the machine or software that performed the final computational step. Accordingly, Dr. Thaler was not merely the remote owner of DABUS; his actions had a direct connection with the creation of the artwork, thereby making him the author of the application, in the Registrar’s view.

3.       Legal personality of AI systems

The Registrar separately considered whether DABUS could be treated as a legal person capable of authorship. Dr. Thaler argued that the word "person" should not be confined to natural persons, and that DABUS should be recognised as the author as it caused the work to be created. The Registrar disagreed on the grounds that Dabus did not have independent legal personality under Indian law; cannot own property; assume legal obligations, and enforce rights or transfer copyright.

Incidentally, the Registrar also rejected the broad proposition that merely owning a computer system or software confers the owner with copyright in every work generated through such system.

4. DABUS as a technological generator

Dr. Thaler also proposed that DABUS be recognised as the technological generator of the artwork. The Registrar declined as that would amount to rewriting the application. The order left open how a future application might be treated if it identified an AI system only as the technology through which a work was generated, without attributing authorship, ownership or legal personality to that system.

The application was ultimately rejected because it named DABUS as the author and not because AI-generated works are inherently ineligible for copyright protection.

The Copyright Office’s view is that AI-generated works may qualify for copyright protection if they satisfy the originality requirement under the Act; however, authorship must vest in a legally recognised person. An AI system is neither a natural nor a juristic person and cannot own, assign or transfer copyright. Where an AI system is used to generate a work, applicants for copyright registration must identify the legal person who caused the work to be created as the author. Merely owning or operating an AI system may not, by itself, establish authorship. The human involved in the creation process may need to be identified.

Ms. Rajeev is the founder of DRN Legal, a boutique technology and fintech law practice.  Ms. Prabhu is an Associate at DRN Legal. Views expressed are personal.