11 - Chapter 4

AI-GENERATED WORK AND COPYRIGHTABILITY ISSUES
CHAPTER 4
4.1 INTRODUCTION
Copyright is the legal right to control copies and distributes of one's work. The
copyright holder can prevent others from copying, modifying, or distributing their work
for a limited time. Its goal is to encourage artists to keep creating so that the general
public can profit from their efforts. In this way the purpose of copyright is to protect the
rights of the creator of work. Currently Artificial Intelligence and humans both
contribute to the development of creative works at the moment, although there are some
instances where AI has generated works without any human input.
4.2 MEANING AND DEFINITION OF COPYRIGHTABILITY
Copyrightability is a parameter and the easiest way to determine whether a work is

copyrightable is whether it may be registered or protected under the copyright Act. This
is only feasible if the work satisfies all requirements to be considered subject matter to
copyright. The work must fit into one of the categories listed below in order to receive
copyright protection.
4.3 WORKS PROTECTED UNDER COPYRIGHT
Different nations have their own detailed lists of copyrightable subject matters, but after
analysing them all, certain category of works stand out as being appropriate from the
perspective of AI-generated works, which are covered here under this study. For this
purpose literary work, dramatic work and computer programme have been taken into
consideration for the purpose of this study.
4.3.1 LITERARY WORKS
Literary works are alluded to as written works. Although literary work has not been
defined under Indian Copyright Act, 1957, however we believe it to be any imaginative
undertaking that is kept recorded as writing. In this way literary works exists in tangible
for and therefore they are protected under Copyright Law. Computer programs, tables,
102
poetry, novels and e-mails etc. are included as literary work for the purpose of Indian
Copyright Act, 1957.
Moreover, there is no need that the literary work to be of artistic worth, and it isn't the
job of the courts to survey the literary value of copyright work. In addition to the fact
that literary works incorporate the previously mentioned things, however abstracts,
reference book articles, word reference definitions, and individual poems are likewise
covered under literary works and are protected as well under copyright.
4.3.2 DRAMATIC
Copyright subsists in original dramatic works. According to Section 2(h)1, dramatic

work includes “any piece of recitation, choreographic work, or amusement in a dumb
performance, the scenic arrangement or acting, the form of which is specified in
writing or other manner, but does not contain a cinematograph film."
Regarding the dramatic work the case of Institute for Inner Studies & Ors., v. Charlotte
Anderson & Ors.,2 seems important in which while explaining the concept Delhi High
Court held “in order to consider any work as dramatic work it must have something
more than just this kind of acting talent. While creation of work there must be intention
of using the work in performance; this intention can be inferred from the nature and
content of the work”. Analysis this provision it is clear that dramatic work is the
combination of literary work and its transformation into action.
4.3.3 COMPUTER PROGRAMME
Copyright subsists in original computer programme. Section 2(ffb)3 states that

“computer includes any electronic or similar device having information processing
capabilities” whereas Section 2(ffc) 4 states that “computer programme means a set of
instructions expressed in words, codes, schemes or in any other form, including a
machine readable medium, capable of causing a computer to perform a particular task
or achieve a particular result”.
1
The Indian Copyright Act, No. 14 of 1957.
2
(2014) 57 PTC 228 Del.
3
Supra n.1.
4
Supra n.1.
103
According to this definition AI can be considered something like computer or can say
more than computer. It is to say if the computer programme which enables any
computer to create work are copyrightable then why the work generated through these
computer can’t be copyrightable.
4.4 COPYRIGHTABILITY UNDER VARIOUS

PERSPECTIVES
It is vital to examine the position of works produced by artificial intelligence in the

context of international convention, national laws from various countries, and judicial
precedent. There are plethora of concern has been discussed in this part of study to
analyse the status of copyrightability of AI-generated works.
4.4.1 INTERNATIONL LEGAL FRAMEWORK
It is vital to examine the position of works produced by artificial intelligence in the

context of international convention and treaties. The relevant provisions of Bern
Convention and TRIPS Agreement have been reviewed below in this regard.
4.4.1.1 BERNE CONVENTION
In today's world, there is not a single domain as defined by Article 2(1) 5, where AIs are
not generating works; therefore the subject of copyrightability of an AI-generated work
is pretty evident under Berne Convention.
Article 2(1), Berne Convention defines terms ‘literary and artistic works’.6 Analysing
this definition gives impression that in order to get protection of copyright, concerned
work must belong to any of the category as provided in Article 2(1) 7 or can be said it
must be from literary, artistic or scientific domain. This domain of works is nothing
else but the copyrightablity of works which elaborate the subject matter of copyright.
5
Berne Convention, 1886 as Revised 1971 in Paris.
6
The expression "literary and artistic works" shall include every production in the literary, scientific
and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets
and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or
dramatico-musical works; choreographic works and entertainments in dumb show; musical
compositions with or without words; cinematographic works to which are assimilated works
expressed by a process analogous to cinematography; works of drawing, painting, architecture,
sculpture, engraving and lithography; photographic works to which are assimilated works expressed
by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches
and three-dimensional works relative to geography, topography, architecture or science.
7
Supra n.5.
104
Analysing the provision of Article 2(1) it says that “the expression ‘literary and artistic
works’ shall be in any mode or form of its expression, such as books, pamphlets and
other writings; lectures, addresses, sermons and other works of the same nature;
dramatic or musical works; choreographic works and entertainments in dumb show;
musical compositions with or without words; cinematographic works to which are
assimilated works expressed by a process analogous to cinematography; works of
drawing, painting, architecture, sculpture, engraving and lithography; photographic
works to which are assimilated works expressed by a process analogous to
photography; works of applied art; illustrations, maps, plans, sketches and three-
dimensional works relative to geography, topography, architecture or science”.
On the basis of this provision, the AI-generated work cannot be denied to be

copyrightable on the ground of subject matter, in general because this provision neither
opposes the AI-generated work nor supports it.
4.4.1.2 TRIPS AGREEMENT
The Agreement Related to Intellectual Property (hereinafter referred as TRIPS) does

not directly address this issue that “whether or not the copyright protection afforded to
AI-created works created with or without human intervention”. In the case of
copyrightable subject matter, Article 2, Berne Convention solely protects "literary and
creative works," and no provision for computer programmes or machine generated
works. The TRIPS Agreement integrated the Berne Articles to accommodate
technological changes8. As a result, Article 10(1)9 of TRIPS confirms that under Article
2 of the Berne Convention, computer programmes "shall also be safeguarded."
In order to protect AI-generated work under Article 10(1), it's necessary to distinguish
the AI code from AI's work product. On the one hand, AI code refers to the computer
programme, algorithm, or source code that makes up AI. This is the code that a
programmer enters into an AI. These codes are protected under copyright laws of
various jurisdictions, because according to the TRIPS agreement "Computer
programmes, whether in source or object code, shall be protected as literary works
8
L Bently and B Sherman, (2014), “Intellectual Property Law”, 4th ed., Oxford University Press,
London, UK, p.43, ISBN- 9780199645558.
9
“Computer programs, whether in source or object code, shall be protected as literary works under
the Berne Convention (1971)”.
105
under the Berne Convention." On the other hand, the AI's work product/AI-generated
work refers to the AI's creative output which is created by AI.
This AI-generated work can be in form of literary or artistic work and at this stage on
the basis of above discussed provision of Article10(1) there is no hurdle in recognizing
AI-generated work as copyrightable subject matter under TRIPS. Therefore if AI-
generated work meets all other copyrightability requirements, it is not subject to
rejection from copyright registration under the TRIPS provisions.
4.4.1.3 EUROPEAN UNION
On subject matter of copyright, the current EU copyright regime is mostly silent.

Although various laws has been harmonised over the copyright, but in general there is
no regulation that harmonises the concept of authorship. In this regard at one place the
phrase "authors of literary and artistic works within the meaning of Article 2 of the
Berne Convention" has been used in Article 1 of the Term Directive10, which deals with
the "duration of authors' rights." According to this provision the subject matter of
copyright appears to be literary and creative works, it has the same meaning as the
Berne Convention's Article 2. This literary and artistic works’11 is broad concept that
may include music, paintings and photographs, but also less obvious categories such as
databases and software.12
On the basis of above provision of Article 1 of the Term Directive13, it may be conclude
that under European copyright regime the work generated by AI which fall under
category of “literary and artistic works” and fulfil other requirement of copyrightablity
then it could be copyrightable.
4.4.2 NATIONAL LEGAL FRAMEWORK
Countries such as the United States, the European Union, and the United Kingdom have
made strenuous attempts to interpret existing laws in a way that incorporates AI.
10
Directive 2006/116/EC, 2006, European Parliament and of the Council of 12 December on the term
of protection of copyright and certain related rights (codified version) (Term Directive).
11
Article 2(1), Berne Convention for the Protection of Literary and Artistic Works (9 September
1886, as amended), Belgian Official Gazette 11 December 1999.
12
Ibid.
13
Directive 2006/116/EC, 2006, European Parliament and of the Council of 12 December on the term
of protection of copyright and certain related rights (codified version) (Term Directive).
106
Generally traditional copyright law does not recognise AI-generated works and it
exclusively safeguards the unique works created by the human being only.14
The US Copyright Act of 1976 divides copyrightable subject matter into nine
categories15 and provides that "copyright protection exists in original works of
authorship fixed in any physical medium of expression, currently known or
subsequently created, from which they can be perceived, reproduced, or otherwise
conveyed, either directly or with the help of a machine or mechanism".16 Here use of
the phrase “either directly or with the help of a machine or mechanism” gives hope to
incorporate AI as a creator under US copyright regime.
But in this approach one problem has occurred due to the Compendium of US
Copyright Office Practices which says that “the US Copyright Office will register an
original work of authorship if it was created by a human being”.17 Here use of the term
"will" in section 30618 indicate that it is not an obligatory prerequisite and that it should
be given a liberal interpretation based on the needs of the time, and that it should
include non-humans as legal persons to keep up with technology. US Copyright Act,
1976 also provides that “any idea, technique, process, system, method of operation,
concept, principle, or discovery, regardless of the manner in which it is presented,
explained, illustrated, or contained in such work, is not protected by copyright for an
original work of authorship.”19
The reference of Monkey-Selfie case20 seems relevant on this point which raised the
question of the copyrightability of AI-generated works by saying that to get protection
under copyright Act, concerned work must be created by a human being. The European
Court of Justice (hereinafter referred as CJEU) also discussed the same issue in case of
Infopaq International A/S v. Danske Dagbaldes Forening,21 and has expressed their
view that the copyright just applies to original works, and originality must come from
14
Atul Jain, 2021, Intellectual Property Rights in the Age of AI, IJLMH, vol.4, no.2, pp.1501-1506,
available from DOI: http://doi.one/10.1732/IJLMH.26323, [accessed on 13 December 2021].
15
Section 102(a) US Copyright Act, 1976, 17 USC.
16
Ibid.
17
Section 306, Compendium of US Copyright Office Practices, 2021, 3rd ed., effective as of 28
January 2021, available from https://www.copyright.gov/comp3/, [accessed on 13 December 2021].
18
Ibid.
19
Section 102(b) US Copyright Act, 1976, 17 USC.
20
Naruto v. Slater, 2018 WL 1902414.
21
C-5/08,ECLI:EU:C:2009:465.
107
author’s own intellect. Both cases22 thrown light on the current laws and determine that
there is no authorship without human being.
Whereas on the same standpoint of the United Kingdom and India is somewhat
different. The Copyright Designs and Patent Act, 1988 of UK states that “if a work is
computer-generated, the author is presumed to be the person who made the essential
23
arrangements for the work to be created” . Whereas, in India the copyright is
recognized as a legal right that refers to the legal protection of original creations
generated through human mind and intellect.
In India, copyright law protects certain creations that are more than just ideas; hence, if
the work is an expression of the creator rather than just an idea, it may be protected.
Section 1324 specifies which works are subject to the protection of copyright. This rule
provides that in order to be eligible for copyright consideration, a work such as literary,
dramatic, musical, or artistic must be an original work. The word "original work" is not
defined in the Act; nonetheless, while determining originality, the Court normally
considers following parameters25
1) Whether the thought and articulation are naturally associated. Normally

decided on the basis of Doctrine of Merger.
2) Whether the labour and skill used in creation of work was of creator’s
only. This approach refers to doctrine of Sweat of the Brow.
3) Whether the work possesses least level of creativity? Perceived as
doctrine of Modicum of Creativity.
4) Whether the work is made with simple expertise and work or whether
the work possesses skill and judgment. Here the precept of Sweat of the
brow applicable with Skill and Judgment Test.
22
Naruto v. Slater, 2018 WL 1902414, see also Infopaq International A/S v Danske Dagblades
Forening, C-5/08,ECLI:EU:C:2009:465.
23
Section 9(3), Copyright Designs and Patents Act 1988.
24
Section 13 of Indian Copyright Acts, 1957 provides that subject to the provisions of this section and
the other provisions of this Act, copyright shall subsist throughout India in the following classes of
works, that is to say, (a) original literary, dramatic, musical and artistic works; (b) cinematograph
films; and (c) sound recording.
25
Lucy Rana and Meril Mathew Joy, 2019, Artificial Intelligence and Copyright-The Authorship, 18
December, available from https://ssrana.in/articles/artificial-intelligence-and-copyright-the-
authorship/, [accessed 14 December 2021].
108
Section 2(d)(iv) of Copyright Act, 195726 states that “in case of computer-generated
work the author would be that person who causes the work to be created.” Whereas
section 1727 stipulates that creator of the work would be original owner of copyrighted
work, but if the work is created under contract for consideration with direction of
employer, then the employer would be owner of the.
On the basis of aforementioned provisions, it may be concluded that prima-facie under

the existing copyright systems, only a human person can be deemed as an author in the
majority of the country, and the position of AI is still in question? However, numerous
scholars from various nations are in favour of providing copyright protection to non-
human authors, arguing that this definition of "authorship" should be expanded so that
this kind of work could be included for this reason. This Act further provides that in
order to get protection under copyright any work must satisfy four basic requirements28,
which are as follows: “work of authorship;” “originality”; “fixation” and
“idea/expression dichotomy”.
Therefore the study will analyse the following criteria of the work such as (1)
“originality”; (2) “creativity”; and (3) “idea/expression dichotomy” in light of
important provisions of copyright laws from various nations to estimate the likelihood
of copyrightability of AI-generated works.
4.5 ESSENTIALS OF SUBJECT MATTER TO BE

COPYRIGHTABLE
With regard to AI-generated work the copyright law is silent on this issue but when we
go through the goal of copyrights law of various country, we find that generally they
refer about to protect the works created by human being or more precisely can say those
works that requires human interaction in some ways. But the demand of technical
advancements cannot be fulfilled by this interpretation of traditional laws
Regarding the query of what is subject matter of copyright? The explanation may be
that any creative, artistic, or dramatic work can be protected by copyright. Following
this, next query, whether all of the aforementioned works protected by copyright? The
26
Supra n.1.
27
Supra n.1.
28
Sections 102(a) &(b) US Copyright Act, 1976, 17 USC.
109
answer is no since a work must fulfil certain requirements in order to be copyrightable,

which are as follows:29
1) Work must be original,

2) Work must be creative, and
3) The work must be expressed and fixed in any tangible form.
4.5.1 WORK MUST BE ORIGINAL
Under Copyright Law, the requirements for originality are far less stringent than under
Patent law. The sole need for originality in the copyright is that the expression not be
replicated. The principle of "independent creativity," which recognises the intellectual
investment in generating an original work, is envisioned by copyright law. This
approach protects two similar or even identical unique works created by two distinct
writers as long as both created their work without duplicating and using their own skill,
judgement and labour.
For the protection of any work under copyright, the originality is one of the important
aspect on the basis of which the work gets copyright. Generally originality is associated
with human being because human beings create the things by using his own minds
which generates original ideas.30
Since there is not any standard definition of "originality" under various laws and
judicial systems across the world, following discussions have defined what originality
means from diverse perspectives.
4.5.1.1 INTERNATIONAL POSITION
Originality, which has eluded statutory definition, is a crucial element of copyright law.
Nonetheless, the concept is essential, as only works with a minimal amount of
originality are protected. Most of the important international copyright treaties do not
define either originality or the level of originality which seems sin-qua-non for a work
29
News Media Team, 2020, What can and can’t be copyrighted?, New Media Rights, 27 October,
available from
https://www.newmediarights.org/business_models/artist/ii_what_can_and_can%E2%80%99t_be_c
opyrighted, [accessed on 13 January 2022].
30
Andrés Guadamuz, 2017, Do Androids Dream of Electric Copyright? Comparative Analysis of
Originality in AI Generated Works, Intellectual Property Quarterly, 06 June, p.18 available from
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2981304&download=yes, [accessed 24 April
2020].
110
to get protection under copyright. Therefore, those provision of international copyright

treaties which uses the term ‘originality’ with regard to copyright is requires to
maintained better clarity which are as follows:
4.5.1.1.1 BERNE CONVENTION
The Berne Convention, in particular, does not explicitly define originality because this
was already in place in national copyright legislations at the time of drafting of Berne.
However there are certain provisions given under Berne Convention which talks about
the ‘originality’.
In this regard Article 2(1)31 concentrates the article is devoted to 'certain protected
works,' and it includes an illustrative and non-exhaustive list of works that fall under
such a wide term. However the term ‘original’ as defined in Article 2(3), provides that
“the translations, adaptations, arrangements of music and other alterations of a
literary or artistic work shall be protected as original works without prejudice to the
copyright in the original work” also. With regard to cinematographic works, Article 14-
bis32 states that “without prejudice to the copyright in any work which may have been
adapted or reproduced, a cinematographic work shall be protected as an original
work”.
Furthermore, Article 2(5)33 provides that “collections of literary or artistic works such
as encyclopaedias and anthologies which, by reason of the selection and arrangement
of their contents, constitute intellectual creations shall be protected as such, without
prejudice to the copyright in each of the works forming part of such collections”. Here
31
Berne Convention under Article 2 provides that “the expression ‘literary and artistic works’ shall
include every production in the literary, scientific and artistic domain, whatever may be the mode
or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons
and other works of the same nature; dramatic or dramatic musical works; choreographic works
and entertainments in dumb show; musical compositions with or without words; cinematographic
works to which are assimilated works expressed by a process analogous to cinematography; works
of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to
which are assimilated works expressed by a process analogous to photography; works of applied
art; illustrations, maps, plans, sketches and three-dimensional works relative to geography,
topography, architecture or science”.
32
Berne Convention, 1886, as revised Paris in 1971.
33
Ibid.
111
by uses the phrase “intellectual creation”, Berne Convention perhaps intended to show
one of the features of originality.34
On the basis of abve-mentioned provisions35, there appears to be no difficulty in

treating AI-generated work as original work. As a result, the AI-generated work will
retain its copyrightability claim on the basis of originality.
4.5.1.1.2 TRIPS AGGREEMENT
Originality of work is required since an expression is only protected to degree that it

meets required level of originality. The levels of originality are different in various
jurisdictions rather to similar. The TRIPS Agreement's terms do not directly address
this notion. However, Article 9 under TRIPS provides that “members shall comply with
Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.”
Therefore provisions regarding ‘originality’ given under Berne Convention, 1971 shall
be applicable here.
4.5.1.2 NATIONAL POSITION - UNDER
The artistic, literary, or dramatic work's copyrightability is contingent on its originality.

Most copyright laws stating that "original" works shall be protected by copyright.
However, none of statutes define originality and concept of originality varies from
nation to nation.
4.5.1.2.1 EUROPEAN UNION
With regard to copyright, the European Union copyright rules provides that except
software, database and photographic works the condition of originality is not needed to
be fulfilled.
Under European Union, the idea that what constitutes a copyrightable "work" has lately
been substantially unified. The concept of originality as a criterion for copyright
protection is only limited to three particular types of work such as software36,
34
Kanchana Kariyawasam, 2020, Artificial Intelligence and challenges for copyright law,
International Journal of Law and Information Technology, vol. 28, no. 4, Winter, Pages 279–296,
available from https://doi.org/10.1093/ijlit/eaaa023, [accessed 24 December 2020].
35
Article 2(1), 2(3), 2(5) and 14bis of Berne Convention, 1971.
36
Article 1(3), Software Directive [art 1(3) Computer Programs Directive.].
112
databases37 and photographic works38 under European harmonised copyright legislation

(acquis communautaire).39
The requirement for originality is defined in there directives: “Directive 96/9/EC of the
European Parliament and of the Council on the Legal Protection of Databases
(hereinafter referred as The Database Directive)”, Council Directive 91/250/EEC on the
Legal Protection of Computer Programmes, of 14 May 1991 (hereinafter referred as
The Computer Programmes Directive), and Council Directive 93/98/EEC, harmonising
the term of protection of copyright and certain related rights, of 29 October 1993
(hereinafter referred as The Term Directive). The mentioned guidelines which define
the term originality are as follows:
• “A computer program shall be protected if it is original in the sense that it is the

author's own intellectual creation. No other criteria shall be applied to determine its
eligibility for protection”40;
• “A photographic work within the meaning of the Berne Convention is to be
considered original if it is the author's own intellectual creation reflecting his
personality, no other criteria such as merit or purpose being taken into account” 41;
• “Whereas no criterion other than originality in the sense of the author's
intellectual creation should be applied to determine the eligibility of the database for
copyright protection, and in particular no aesthetic or qualitative criteria should be
applied”42 .
On the basis of above mentioned criteria of originality it can be said that for other kind
of work originality is not a sin-qua-non to get copyright protection.
Prima-facie, it appears that, with the exception of software, databases, photographic

works and all other works created through computer-assisted intelligence are not
37
Article 3(1), The Database Directive [art 6 of the Directive 96/9/EC of the European Parliament and
of the Council of 11 March 1996 on the legal protection of databases [1996] OJ L77/20.].
38
Article 6, Term Directive [art 16 of the Directive 2006/116/EC of the European Parliament and of
the Council of 12 December 2006 on the term of protection of copyright and certain related rights
(codified version) [2006] OJ L372/12.].
39
Jeremy A. et.al., 2018, Research handbook on the law of AI, Edward Elgar Publishing Limited,
Massachusetts, USA, p.519, ISBN- 9781786439048.
40
Article 1(3), Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer
programs.
41
Article 6, Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of
copyright and certain related rights.
42
Article 3 (1), Directive 96/9/EC of the European Parliament and of the council on legal protection
of databases.
113
required to meet the requirement of originality, later on, this requirement of

"originality" has been imposed on all other wider range of works on judicial
pronouncements. Further, a work is considered to be original under EU law if it
displays "author's own intellectual creativity," i.e. “it shows the author's personal touch
and is the outcome of free and creative decisions”.
Article 1(3), Computer Programs Directive provides that “a computer programme is

considered to be original if it is the author's own intellectual creation and that no other
criteria should be used to evaluate its eligibility for protection under copyright..
The Court has emphasized that its framework is based on the same premise as given in
the preamble of the Information Society Directive, therefore ordered that the same
criterion should be applied to all kind of works.
In this way the EU law establishes the requirement that work should be the proximate
causal consequence of human action. This indicates that AI, when defined as
intelligence implemented entirely through computer methods, is incapable of making
autonomous and creative decisions on its own, and thus the idea of originality is not
relevant to machines.43
4.5.1.2.2 UNITED KINGDOM
The Copyright, Designs and Patents Act 1988 (hereinafter referred as CDPA, 1988)
does not require that the expression must be original or novel, but it does only stipulate
that the work must not be a copy of another work and must be originated from the
creator. In this way, under the common law regimes' criterion for originality is
comparably low, requiring just a minimum amount of creativity or intellectual exertion
and independent creation for a work to be protected by copyright.
In this sense, the term "originality" refers to the author as the "origin" of a work, not to
any kind of creativity criterion. The concepts of originality and authorship are also
inseparably linked. As a result, if the condition for originality is met, an individual
might be considered the work's creator.
43
Art 1(3), Council Directive 2009/24/EC, protection of computer programs as “the author’s own
intellectual creation”; Art 3(1), Database Directive 96/9/EC; Case C‐5/08, Infopaq,
ECLI:EU:C:2009:465; Information Society Directive, 2001/29/EC.
114
The term "author" in the United Kingdom, “refers to the person who creates a work”, as
defined under Section 9(1) of the Act44 and according to section 17845 with regard to
computer generated work “this Act protects the work which is the computer generated
with no human author for the work”. Also Section 9(3)46 also states that “the author
shall be taken to be the person by whom the arrangements necessary for the creation of
the work are undertaken.” These sections show that there is less requirement of
originality because originality required minimum level of creativity which lacks in case
of computer generated work.
Further as per section 11(1)47, the author is the first owner of the work but, there is
however, an exception to this rule. Such as if an employee creates a literary, dramatic,
musical, or artistic work or a film in the course of his employment, his employer is the
first owner of any copyright in the work but this exemption is subject to contract
contrary in this respect. This way also if the owner can be any other person who is not
linked with originality in any manner then how originality can be a parameter to
prevent the AI to become the author of the AI-generated work.
Likewise, by virtue of section 4(1)(c)48 also which is specifically applicable to visual

arts and craftsmanship provides that the originality may in effect be assessed according
to the creative-artistic input made. This also shows that requiring higher level of
originality would be contrary to the principal “pedestrian” originality rule.
On the basis of above discussion it can be said any words or phrase used for the notion
of originality causing the hindrance in the path of copyrightability of AI-generated
works is found in UK. Therefore, on the basis of the “criteria of originality” any claim
regarding authorship of AI for AI-generated work cannot be rejected.
4.5.1.2.3 UNITED STATES OF AMERICA
While interpreting the term "originality" in the context of copyright in the United
States, it is general practises of the courts that they typically apply the traditional U.K.
approach in which "skill and labour" test one of important test, which focuses on the
investment made in the creation of the work and is identified as an objective approach,
44
UK CDPA, 1988.
45
Ibid.
46
Ibid.
47
Ibid.
48
Supra n45.
115
whereas creativity of the work is recognised as a subjective approach. 49 Section 8(8),

The US Constitution provides for its goal in which copyright has also been added
50
therefore it can be said that, aforesaid situation is US Constitution was enacted
Although under Section 101 Copyright Law51, many of the major concepts used
throughout the Copyright Act are defined but the term "originality" is not defined under
US Copyright Act of 1976. Therefore, in order to understand the definition of
"originality," the cases decided by the United States Supreme Court and other Circuit
Courts, may indicates valuable aspects. 52 However, in order to continue this study, the
researcher has laid emphasis on "originality" to imply "independent production" and
"modicum of creativity," as defined by the court in the Feist Publications, Inc. v. Rural
Tel. Serv. Co. case. 53
Further, Section 102 stipulates that copyright in the United States applies to all
"original works of authorship fixed in any tangible medium of expression now known or
later developed, from which they can be perceived, reproduced or otherwise
communicated, either directly or with the aid of a machine or device”54. Section 102
has a non-exhaustive list55 of eight types of work that can qualify for copyright
protection if they are found "original" and "fixed" in any tangible medium of
expression.
The main issue in the above-mentioned sections is "originality," which is not defined
anywhere in the US Copyright Act, 1976. According to Section 306 of the US
Copyright Office's "Compendium of US Copyright Office Practices, Third Edition
2021" (hereinafter referred as US Compendium, 2021), the Copyright Act protects
"original works of authorship". This part also states that "a work must be generated by a
human in order to get 'authorship' on it, as established by the court in the case of the
49
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
50
Section 8(8), U. S. Constitution.
51
Section 101, US Copyright Act, 1976, 17 USC.
52
For US case law on the concept of originality, see Alfred Bell & co. v. Catalda Fine Arts, Inc. 191
F2nd, Baltimore Orioles Inc. v. Major League Baseball Players Association, 805 F2nd 663 (7th
Cir. 1986) and Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 US 340 (1991).
53
Supra n. 49
54
Section 102, US Copyright Act, 1976, 17 USC.
55
Section 102, US Copyright Act, 1976, 17 USC provides non-exhaustive list of work including
literary works; musical works, including any accompanying words; dramatic works, including any
accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural
works; motion pictures and other audio-visual works; sound recordings; and architectural works.
116
Burrow-Giles Lithographic Co. v. Sarony56, as an essential prerequisite." Section

313(2)57 of the compendium in order to emphasise the importance of having a human
author, further states that the Copyright Office "will not register works generated by a
machine or simply mechanical process that functions randomly or mechanically
without any creative input from a human author".
On the basis of the aforementioned provisions, it may be argued that in order for a work
to be considered "original" in the United States, it must be created by or by a human
touch. According to Section 313.258, if the work is not a random consequence of a
mechanical process, why should it not be protected by copyright? Where a machine is
employed as a tool, the demand for human touch can also be met. In this sense, the US
copyright law on the requirement of “originality” allows for AI's work to be considered
original.
4.5.1.2.4 INDIA
In this context as well as Indian position is concerned the phrase "originality" is not
specified anywhere in the Indian Copyright Act, 1957. Although, Section 13 uses the
term "originality" as first requirement in order to "works in which copyright subsists".
Section 1359 specifies which works are subject to the protection of copyright. This rule
provides that in order to be eligible for copyright consideration, a work such as literary,
dramatic, musical, or artistic must be an original work. Whereas section 13(1)(b) and
(c) further provides that copyright also subsists in cinematographic films and sound
recordings, but these two sections do not use the term "originality," implying that
"originality" is required for works listed in section 13(1)(a).60
On the basis of section 13(1)(a)61, it is evident that the work which is literary, dramatic,
musical, and creative in order to be copyrightable it should be original. However, the
topic of whether or not AI may produce original works is disputed in India, because the
56
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
57
US Copyright Office “Compendium of US Copyright Office Practices”.
58
Ibid.
59
Section 13 of Indian Copyright Acts, 1957 provides that subject to the provisions of this section and
the other provisions of this Act, copyright shall subsist throughout India in the following classes of
works, that is to say, (a) original literary , dramatic, musical and artistic works; (b) cinematograph
films; and (c) sound recording.
60
Section 13(1)(a), Indian Copyright Act, 1957 requires that the work must be literary, artistic,
dramatic, musical or cinematographic films.
61
Supra n.1
117
Indian Copyright Act does not explicitly prohibit AI from doing so. As a result, if the
AI is capable of producing original works, AI cannot be forbidden under section 1362
on the basis of the originality requirement.
4.5.1.3 JUDICIAL APPROACH - UNDER
Until the landmark decision of 2009 given in case of Infopaq International A/S v.
Danske Dagbaldes Forening Infopaq63, it was believed that EU Member States might
set prerequisites of copyright protection inside their own legal regimes for works which
doesn’t come under the purview of Infosoc Directives2001/2964.
However, the Court of Justice of the European Union (hereinafter referred as CJEU) in
this case overturned popular belief and broadened the scope of the Article 1(3) of
Software Directive, Article 3(1) of the Database Directive and Article 6 the Term
Directive are concerned with software, database and photographic works respectively.
The CJEU declared that works protected under the Infosoc Directive 2001/2965 must
meet the same threshold of originality as met by software, databases, and photos.
While stating the reason of for such decision the CJEU has stated that “the Berne
Convention applies to the Software, Database, and Term Directives, and Article 2(5)
and (8) of the Berne Convention presumes that protection is given to works that are
intellectual creations”66, which is exactly the criterion contemplated under the
Software, Database and Term Directive.67
The CJEU further stated that the InfoSoc Directive is based on the premise that "if the
work is original creation of author then only it can be protected”. The same can be
noticed under the preamble of the Directive's Recitals 4, 9, 10, 11 and 20. In this way,
the InfoSoc Directive's originality criteria is the 'author's own intellectual invention.'68
62
Supra n.1
63
Infopaq International A/S v. Danske Dagblades Forening, C-5/08, EU:C:2009:465.
64
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society, OJ, L
167, pp. 10–19 (InfoSoc Directive).
65
Ibid.
66
Ibid.
67
Supra n.64
68
Ibid.
118
Similarly, in case of Football Association Premier League v. QC Leisure and Others69

and Karen Murphy v Media Protection Services Ltd.70 CJEU emphasised on the notion
of ‘author’s own intellectual creation’ and held that the standard of originality requires
that the author expresses ‘his creativity in an original manner’.71 In his opinion in
Football Dataco, C-604/10, Advocate General (AG) Mengozzi stated that “for any
work to be original only labour and skill was used is not sufficient. There must be
involvement of some ‘creative’ component”.72 On the basis of this opinion “being
subject to rules of the game the football match does not possess that creativity in
original manner”.73
Likewise in the case of Eva-Maria Painer v Standard VerlagsGmbH and Others74, the
CJEU more refined the meaning of originality and held that originality for photographs
particularly for portraits requires that “the choice of the authors must be free and
creative while to expressing creative abilities in the production of the work,”75 or can
say “the work must be created through author’s personal touch”.76
In its “Resolution Concerning Civil Law Rules and Robotics”, 2017 the European
Parliament demanded that "the notion of authors' own intellectual creation" in relation
to copyrightable works created by computers or robots "must be elaborated."77
In later cases, the CJEU has expanded on the concept of “authors’ own intellectual
creation” most notably in the Case of Levola Hengelo BV v Smilde Foods BV78 and
Cofemel Sociedade de Vestuário SA v G-Star Raw CV79.
From the aforementioned case laws and provisions it can be concluded on the point of
originality that “to fulfil the criteria of originality, the work must be the authors' own
intellectual creativity and made with personal touch”. Based on this finding, it may be
69
Football Association Premier League Ltd and Others v QC Leisure and Others (C-403/08).
70
Karen Murphy v Media Protection Services Ltd (C-429/08), EU:C:2011:631, para. 98.
71
Bezpe cnostnı´ softwarova´ asociace-Svaz softwarove´ ochrany v. Ministerstvo kultury, C-393/09,
EU:C:2010:816, para. 50.
72
Opinion of AG Mengozzi in Football Dataco Ltd and Others v. Yahoo! UK Ltd and Others, C-
604/10, EU:C:2011:848, para. 35.
73
Football Association Premier League Ltd and Others v. QC Leisure and Others (C-403/08) and
Karen Murphy v Media Protection Services Ltd(C-429/08), EU:C:2011:631, para. 98.
74
Eva-Maria Painer v. Standard VerlagsGmbH and Others, C-145/10, EU:C:2011:798.
75
Ibid. para 89.
76
Ibid. para 92.
77
European Parliament resolution of 16 February 2017 with recommendations to the Commission on
Civil Law Rules on Robotics (2015/2103(INL)) [2019] OJ C252/239.
78
C-310/17, ECLI:EU:C:2018:899.
79
Ibid.
119
said that AI-generated work does not meet the criteria of originality under the European
copyright law.
The old criteria to determining the originality in United Kingdom was based on labour.
According to which if anyone is investing labour to create something then it was
sufficient to prove that the work is original. In the case of Walter v. Lane80 in which a
newspaper reproduced someone’s oral speech exactly in same words, the court applied
the “doctrine of sweat of the brow” and held that the work is copyrightable as author
has used has invested his labour. While giving the decision North J., said that “for the
purposes of their own profit they desire to reap where they have not sown and to take
advantage of the labour and expenditure of the plaintiffs”.81
The court further also said that “the free trade does not necessitate that one man be
permitted to usurp without compensation the tangible or immaterial benefits of
another's labour. The law has not been able to provide complete protection to the
intangible. However, in some stages, it may preserve the intangible, one of which is
when it is articulated in words and print”.82
The old approach to 'originality' under the UK copyright law was modified at later stage
and new concept of originality was established on the basis of "authors' own skill,
labour, judgement and effort." This criterion also demonstrates a lower threshold of
orginality. The British court adopted the same old concept of "authors’ own skill,
labour, judgement, and effort" until the decision of the case “Infopaq International v.
Danske Dagblades Forening Infopaq83 decided by CJEU in 2009, in which the CJEU
handed down this old method. Even until the decision of Football Dataco v. Yahoo!
UK84 decided by CJEU in 2012, the only criterion unanimously followed in UK courts
to determine copyright was originality and that was based on notion of “author’s own
skill, labour, judgment and effort”.
80
Walter v. Lane (1900) AC 539.
81
Ibid.
82
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 WLR 273, at 290–291, per Lord
Devlin.
83
Infopaq International v. Danske Dagblades Forening [2009] ECDR 16 (Case C-5/08).
84
Football Dataco Ltd and others v. Yahoo! UK Ltd and others, 1 March 2012 (Case C-604/10).
120
In the case of University of London Press v. University Tutorial Press85, the same
approach was affirmed by the English court. While deciding the case Peterson J. linked
originality with the “sweat of the brow doctrine” and held that to determine the
originality the only requirement is that the work should not copied from another’s’
work.86 The court further said that “the copyright protects the expression of idea rather
than the idea itself; it is not necessary for the work to be in an "original form," but it
must not be taken from another work”.87
At later stage the doctrine of “sweat of the brow” was followed in the case of Ladbroke
(Football) v. William Hill (Football)88 and in Independent Television Publications Ltd.
v. Time Out Ltd.89. However, in today's world, the "sweat of the brow" approach is no
longer very relevant in determining originality in order to provide copyright protection.
The concept of originality is not consistent within copyright regime of UK. Nowadays
where the European Courts following the approach of “authors’ own intellectual
creation” the British courts following “skill and labour” approach to originality.
Following the approach of “skill and labour”, the UK court has given protection to
databases as compilations90, and also to computer programs91.
In a case of Sawkins v. Hyperion92 it was held that “the approach of ‘skill and labour’ is
consistent with a legitimate interpretation of public policy, which is that the claimant's
effort should be promoted. It saves others the effort and difficulty of recreating nearly-
forgotten masterpieces, but it does not provide them a monopoly. Anyone who wishes
to utilise the claimant's work must first obtain his consent”.93
In aforementioned cases, the threshold of originality was considered to be ‘skill and

labour’. Despite the fact that this is a lower threshold, it appears difficult for AI to place
that ‘skill and labour’94 or AI-generated work might be deemed its "own intellectual
85
[1916] 2 Ch 601, at 609–610.
86
University of London press v. university tutorial press (1916) 2 Ch 601.
87
London Press Limited v. University Tutorial Press Limited, [1916] 2 Ch 601 (U.K.).
88
[1964] 1 WLR 273.
89
[1984] FSR 64.
90
Independent Television Publications Ltd. v. Time Out Ltd. (1984) FSR 64.
91
Sega Enterprises v. Richards [1983] FSR 73, see also Thrustcode v. W.W. Computing [1983] FSR
502.
92
Sawkins v. Hyperion (2005) EWCA Civ 365, at para. 87, per Jacob LJ.
93
Ibid.
94
University of London Press v. University Tutorial Press (1916) 2 Ch 601.
121
production"95. Therefore AI cannot create original work under UK copyright regime but
still on the basis of skill and labour approach the skill and labour of the programmer
who created that AI should be incentivized.
On the issue of originality in creative work, the US Supreme Court case of Burrow-
Giles Lithographic Co. v. Sarony96, is crucial because it establishes preliminary guiding
rules for determining originality in any creative work. In this case, a photograph taken
with a camera was in issue, and the US Supreme Court determined that the photograph
was original because it was "entirely from the author's mental conception, to which he
gave visible form by posing his subject in front of the camera, selecting and arranging
the costume and arranging the subject," The expression embodied in the photograph,
demonstrated the photograph "to be an original work of art, the product of the plaintiff's
intellectual invention."97
Similarly, the US Supreme Court in Bleistein v. Donaldson Lithographic Co. held that
originality does not require a connection to fine arts or culture for copyright purposes. It
simply requires the marks, however lowly, of a separate personality. The motto of
copyright is to protect creative work made by every hand regardless of its creativity or
aesthetic merit.98
Further, in cases of Anshel v. Puritan Pharmaceutical Co.99 the court applied

Bleistein’s principle and held that “the artistic work must be ‘original,’ but this means
no more than that the work must not be copied from another artistic work of the same
character”. In this way the standard for originality in copyright law reached at a low
watermark: “.”100In the case of Hoague-Sprague Corp. v. Frank C. Meyer Co., the
court held that “the originality under copyright means little more than a prohibition of
actual copying.”101 Likewise in the case of Chamberlin v. Uris Sales Corp the court
said that “there is nothing in the Constitution which requires copyrighted work to be
95
Painer (C-145/10) ECLI:EU:C:2011:798, paras 88-92.
96
97
Ibid.
98
Bleistein v. Donaldson Lithographic Co., 188 U.S. 239, 251–52 (1903).
99
Ansehl v. Puritan Pharm. Co., 61 F.2d 131, 136 (8th Cir. 1932).
100
Ibid. [quoting W.A. Copinger, Law of Copyright 75 (6th ed. 1927)]; see also Alfred Bell & Co. v.
Catalda Fine Arts, Inc., 191 F.2d 99, 106 n.13 (2d Cir. 1951) [W.A. Copinger, Law of Copyright
40-44 (7th ed. 1936)].
101
Hoague-Sprague Corp. v. Frank C. Meyer Co., 31 F.2d 583, 586 (E.D.N.Y. 1929).
122
extremely original”. To satisfy both the Constitution and the legislative objects, it is
sufficient that the "creator" must have contributed more than a "merely minor"
alteration, something that is recognizable for "his own."102
Following the principle stated in Hoague and Chamberlin case103 in the case of Alfred
Bell & Co. v. Catalda Fine Arts, Inc.104, the Court lowered the standard for originality
and held that in order for the work to be original it must not be copied from any other
artistic work of similar character. On the basis of this judgment protection to AI-
generated work can be turned into reality since AI-generated works were obviously not
copied, but derived through programming and algorithms. To some extent, this decision
resolves the issue surrounding the grant of protection to AI systems. However, the lack
of a firm attitude still has an impact on potential right holders.
Later stage in Mazer v. Stein105, the Supreme Court clarified that a protected work
"must be unique, i.e., the author's physical manifestation of his ideas." There are
various cases in which threshold of originality was kept low such as a reduced-size
copy of Rodin’s Hand of God,106 a “panned and scanned” adaptation of a movie and its
soundtrack;107 a reference guide for the fashion, advertising, and visual productions
industries containing 800 pages of names and contact information.108 These cases show
that originality is no bar for an author to get copyright protection.
4.5.1.3.3.1 DOCTRINE OF MODICUM OF CREATIVITY
Prior to the judgment of Feist Publications case109 some of US Courts used to follow
“doctrine of sweat of the brow” to determine the originality. Instead of focussing on
originality, these courts emphasises the amount of labour that has gone into a piece of
art. The US Supreme Court, however in case of Feist Publications Inc. v. Rural
Telephone Service Co. Inc.,110 rejected the ‘sweat of the brow doctrine’, stating that it
did not determine the originality and introduced the new doctrine of “modicum of
102
Chamberlin v. Uris Sales Corp., 150 F.2d 512, 513 (2d Cir. 1945).
103
Ibid.
104
191 F.2d 99 (2d Cir. 1951).
105
Mazer v. Stein, 347 U.S. 201, 214 (1954).
106
Alva Studios, Inc. v. Winninger, 177 F. Supp. 265, 267 (S.D.N.Y. 1959).
107
Maljack Prods., Inc. v. UAV Corp., 964 F. Supp. 1416, 1426 (C.D. Cal. 1997), aff’d sub nom.
Batjac Prods. Inc. v. Good Times Home Video Corp., 160 F.3d 1223 (9th Cir. 1998).
108
Le Book Publ’g, Inc. v. Black Book Photography, 418 F. Supp. 2d 305, 307 (S.D.N.Y. 2005).
109
Feist publications Inc. v. Rural telephone service co. Inc. (1991) 499 U.S. 340.
110
Ibid.
123
creativity” which has defined originality as the “bedrock principle of copyright the very
premise of copyright law. As per the doctrine, for a work to be original, the author
should independently create the work and possess minimal creativity.111
So, in Feist Publications Inc. v. Rural Telephone Service Co. Inc.,112 the US Supreme
Court propounded the principle of “modicum of creativity” which defines originality as
the “bedrock principle of copyright the very premise of copyright law.113
Similarly, in the case of STR Indus. v. Palmer Indus114, the Supreme Court has held that
“only by changing the medium of fixation such as just scanning someone's work into a
computer without making any intellectual changes does not qualify as "original work of
authorship."115
In this way, the Supreme Court of the United States in some cases lowered the
threshold for originality, finding that it could not be copied from any other similar
artistic work to be declared unique but finally in present time following the doctrine of
“modicum of creativity” propounded in Feist116 case. The earlier pronouncements of
the courts were supporting the copyright claims for artificial intelligence-generated
works but present approach has made this thing little bit difficult.
4.5.1.3.4 INDIA
The word "original work" is not defined in the Act; nonetheless, while determining
originality, the Court normally considers following parameters117
Whether the thought and articulation are naturally associated. Normally

decided on the basis of Doctrine of Merger.
Whether the labour and skill used in creation of work was of creator’s
only. This approach refers to doctrine of Sweat of the Brow.
Whether the work possesses least level of creativity? Perceived as
doctrine of Modicum of Creativity.
111
Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991).
112
Supra n.109.
113
Supra n.111.
114
STR Indus. v. Palmer Indus, 1999 WL 258455, at 3-4(N.D. Ill. Apr. 9, 1999).
115
Ibid.
116
Supra n.111.
117
Supra n.25.
124
Whether the work is made with simple expertise and work or whether
the work possesses skill and judgment. Here the precept of Sweat of the
brow applicable with Skill and Judgment Test.
Legally Copyright Law does not protect every expression. In India the law protects
such expressions that are fixed in medium and are original. In order to qualify for
protection, the literary work must be original118 but the term “original” has not defined
anywhere in the Act. Therefore in this regard the judicial interpretation plays an
important role.
Till 2008 India followed the “Sweat of the brow doctrine” and then in the case of
Eastern book company v. D B Modak119, the SC of India discarded the “sweat of the
brow doctrine” and shifted to the “modicum of creativity doctrine” given by US
Supreme Court in the case of Feist Publications, Inc. v. Rural Telephone Service Co120.
This doctrine requires the minimum level of creativity.121
In the case of Eastern book company v. D B Modak122, the Supreme Court of India said
that "to claim copyright in a compilation, the work must be original by virtue of
selection, coordination and arrangement of pre-existing matter contained in the work”.
In other words “the work must be the outcome of author’s skill and judgement, which
may not be creativity in true sense that it is novel or non-obvious, but at the same time
it should not be a product of merely labour and capital,". “The author's derivative work
must have some distinguishing characteristics and flavour." As a result, demonstrating
specific skill and judgement is a basic need for every compilation or derivative work.
Further, in the case of Entertainment Network (India) ltd v. Super Cassette Industries
Ltd.123 the Supreme Court stated that these two ideas, "sweat of the brow" and
"modicum of creativity," were extreme stances. It favoured a high threshold to sweat of
brow, but not as much as a modicum of creativity. As a result, our law recognises that
every industrial endeavour or skill expansion does not result in copyright work, but
rather generates works that are slightly different in nature, requiring some intellectual
118
Section 13, Indian Copyright Act, 1957.
119
(2008) 1 SCC 1.
120
499 U.S. 340, 347 (1991).
121
Eastern book company v. D B Modak (2008) 1 SCC 1.
122
(2008) 1 SCC 1.
123
(2008) 13 SCC 30
125
effort and a degree of creativity. The Court also clarifies that Section 13(a) 124 protects
125 126
original work, whereas Sections 13(b) and 13(c) protect derivative works.
However, it is evident that it only relates to derivative works of cinematograph films
and sound recordings. With regard to derivative protection for creative work this
section is silent.
Therefore, in this way this provision gives scope for protection of AI-generated work as
derivative works. The Generative Adversarial Network (hereinafter referred as GAN)
system's second stage uses the data provided to the AI to critique the work created and
see if it fits what was intended before creating the final artwork. If it leverages
knowledge from prior works, it will be difficult, if not impossible, for AI to develop
"original" work with today's technology, which contradicts the subject of copyright. It's
not an original work, but it can be considered as derivative works.
4.5.1.4 CONCLUDING REMARKS
Based on the foregoing discussion including country specific provisions and judicial
views expressed by various courts, it can be concluded that at this moment, originality
is principal benchmark utilised under copyright regimes to determine whether or not a
work is protected by copyright. The essential idea of originality is that it should not be
copied and should come directly from the author. The concept of originality differs
from one country to the others.
Under common law jurisdiction the originality criteria is often low, it requires just a
basic amount of creativity and independent creation of work to be copyrightable. In this
sense, the "originality" just refers to the author as "origin" of a work, not to any kind of
creativity criterion. Whereas, under European Union system, a work is original if it
represents the "author's own intellectual invention," it means that “it reflects the
author's personal touch and is the outcome of free and creative decisions”. However the
US law require that the work must contain a "modicum of creativity". In summary, both
the nations such as EU and US law required that the work must be the proximate cause
of human effort. In India, too, a "modicum of creativity" is practised.
124
Supra n.1.
125
Supra n.1.
126
Supra n.1
126
Above analysis suggests that AI, at present time implemented through computer
program, is incapable of making autonomous and artistic decisions on its own, and that
the idea of creativity does not apply to machines. But for a work to be copyrightable, it
must have some meaningful change. When AI creates works autonomously, they meet
the first fundamental criteria that come from the author’s talent and labour will be
present as well. The question is whether or not the work meets a minimal standard of
creativity. On the point, if the human demand for personal touch is removed, it may be
argued that AI can generate original work as required by copyright law, because AI was
previously employed as a tool to make works and now creates its own.
4.5.2 WORK MUST BE CREATIVE
Another requirement for copyright protection is that the work must be creative. Since
most nations demand it, the work must also be creative in order to be copyrightable.
Therefore, a thorough analysis of the creativity requirement of the work is necessary to
done here. In this regard the concept of creativity in terms of copyright from an
international, national, and judicial standpoint has been discussed to provide a clear
understanding about creativity.
4.5.2.1 CREATIVITY UNDER INTERNATIONAL PERSPECTIVE
Various international conventions and treaties that are relevant with regard to copyright
have been explored here in order to help readers grasp the notion of creativity in terms
of copyright. In order to provide the basic concept of creativity there are two
fundamental issues are required to discuss. Firstly; what qualifies as creative activity?
Secondly; what are the fundamental requirements for a certain work to be creative?
4.5.2.1.1 BERNE
The Berne Convention, (1971) under Article 2, reqries that in order to be eligible for
copyright protection the work must be "literary and creative works," and there is no
other provision given for computer programmes or machine generated works.
Therefore in this regard analysis of this Article 2 becomes sin-qua-non for this study. In
this regard Article 2(1), Berne Convention defines the terms ‘literary and artistic
127
works’.127 Analysing this definition gives impression that in order to get protection of
copyright, concerned work must belong to any of the category as provided in Article
2(1)128 or can be said it must be from literary, artistic or scientific domain, and
simultaneously these works must be creative.
On the basis of this provision it can also be said that “creativity” is the feature which
makes these works copyrightable but unfortunately the term “creativity” has not been
defined by this convention and left to country for judicial interpretation.
As for the provisions of TRIPS Agreements, there is no particular provisions has been
incorporated. In most of the places TRIPS Agreement requires Berne Provisions to be
applicable. In this way considering Berne provisions are key enactment which would be
applicable in this regard.
On the basis aforementioned discussions this study leads to the conclusion that AI-
generated work cannot be removed from this list on the grounds of creativity.
4.5.2.2 CREATIVITY UNDER NATIONAL PERSPECTIVE
Although creativity is a general idea and not a legal one, it has never been studied in the
context of copyright. Most of the countries have not defined the term creativity in
context of copyright. In terms of copyright, the core of creativity is practically
untouched. None of the existing theories look at creativity from copyright perspective.
But creativity is essential for copyright since creative works are the centre of copyright.
Therefore the judicial interpretation becomes essential in this regard.
In general, creativity may be described as a reflection or transformation of reality.

When the author incorporates images of real-world items into their work, the author is
reflect a bit of human existence. The author may create something that does not exist in
127
The expression "literary and artistic works" shall include every production in the literary, scientific
and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets
and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or
dramatico-musical works; choreographic works and entertainments in dumb show; musical
compositions with or without words; cinematographic works to which are assimilated works
expressed by a process analogous to cinematography; works of drawing, painting, architecture,
sculpture, engraving and lithography; photographic works to which are assimilated works expressed
by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches
and three-dimensional works relative to geography, topography, architecture or science.
128
Berne Convention, 1886 (as Revised 1971 in Paris).
128
reality, for example, a fantastic creature from another planet.129 In this way, creativity
may be defined as the unique human ability to reflect reality via varied pictures or
modify reality, expressing their worldview and individuality through work, and
transmitting their sentiments, emotions, and ambitions.130
The judicial tendency towards creativity is considered as the sine qua non for any work
to be considered original because the United States has acknowledged the "doctrine of
modicum of creativity" in the cases of Feist Publications v. Rural Telephone Service
Company131 whereas the Indian judiciary has also followed the same approach in the
132
case of Eastern Book Company v. D B Modak . As a result, "creativity" is the next
criteria that must be met for any work to be protected by copyright.
Although creativity is not associated with machine but more than a century ago when a
photograph was taken by an obscura camera, the question of copyright protection for
photographic works was argued, then strong objections was raised on the basis of the
absence of human originality. Photography was a brand-new phenomenon at the time.
It fuelled the discussion on whether or not non-human creative input had a place in the
copyright world. It was held that because of using lens of a 'camera obscura’ it has
prevented the human author ship in the photograph taken through that lens.
Copyright protection for photographically generated works was previously unavailable

in most of the Nations due to substantial issues regarding the existence of a human
creator in the creation process, which resultant into lackness of originality in
photograph. But with the development of society copyright protection used to given to
photographs as in the case of Burrow Gilles Lithographic Co. v. Sarony133. In present
time there are various example of AI-generated work which shows the sufficient
amount of creativity and therefore should be liable for the copyright protection, such as
the Next rembrendt134, a Day Computer Writes a Novel135 RAAGHAV the painting
129
Anna Shtefan, 2021, Creativity and Artificial Intelligence: a view from the perspective of
copyright, Journal of Intellectual Property Law & Practice, vol.16, no.7, July, pp.720-
728, https://doi.org/10.1093/jiplp/jpab093, [assessed on 13 March 2021].
130
Ibid.
131
499 U.S. 340, 347 (1991).
132
2008 1 SCC 1.
133
134
Dutch Digital team, 2018, The Next Rembrandt: bringing the Old Master back to life, Case study:
behind the scenes of digital design, Dutch Digital Design, 24 January available from
https://medium.com/@DutchDigital/the-next-rembrandt-bringing-the-old-master-back-to-life-
35dfb1653597, [assessed 13 March 2021].
129
app136 are some of example which are waiting to come in the list of creativity for the
purpose of copyright. The judicial approach regarding the creativity in various
countries would not be fit to order to explore it.
The study has examined that, whether or not AI activity to produce items with the same
expression as copyright works may be regarded as creative work from the perspective
of copyright laws of various countries.
Under EU Copyright framework any work in order to be eligible for copyright, must
satisfy the conditions as provided in the EU's Software Directive and Database
Directive137, which are as follows:
• Article 1(3) provides that “a computer program shall be protected if it is

original in the sense that it is the author's own intellectual creation. No other criteria
shall be applied to determine its eligibility for protection”138; use of the phrase
“authors’s own intellectual creations” is nothing else but only creativity of the author
comes through personal touch and reflect the personality of the author.
• Article 6 also says that “a photographic work within the meaning of the Berne
Convention is to be considered original if it is the author's own intellectual creation
reflecting his personality, no other criteria such as merit or purpose being taken into
account” 139;
• Article 3 (1) provides that “whereas no criterion other than originality in the
sense of the author's intellectual creation should be applied to determine the eligibility
of the database for copyright protection, and in particular no aesthetic or qualitative
criteria should be applied”140 .
135
DNA Web Team, 2018, This Japanese AI wrote a novel and almost won a literary prize, DNA Web
12 March available from https://www.dnaindia.com/technology/report-this-japanese-ai-wrote-a-
novel-and-almost-won-a-literary-prize-2193918, [accessed on 12 January 2020].
136
Sukanya Sarkar, 2021, Exclusive: India recognises AI as co-author of copyrighted artwork,
Managing IP Online, August 05 at https://www.managingip.com/article/b1t0hfz2bytx44/exclusive-
india-recognises-ai-as-co-author-of-copyrighted-artwork, [accessed on 22 August 2021].
137
Article 1(3); Directive 2009/24/EC (Software Directive); Article 3, Directive 96/9/EC (Database
Directive); See also Article 6, Directive 2006/116/EC (Term Directive).
138
Supra n.40.
139
Supra n.41.
140
Article 3(1). Directive 96/9/EC of the European Parliament and of the council on legal protection of
databases.
130
So it is evident that in all above mentioned provision the phrase "author's own
intellectual creativity" has been used, which refers to the creative ability of the author,
which he deployed in the creation of work in order for it to be copyrightable or meet the
requirement of originality.
If we analyse these provisions we find that it is also clear that Article 6 of the Term
Directive141, allows Member States to preserve photos and prima-facie that are not the
author's own intellectual invention. Whereas In order to qualify for copyright
protection, any other type of creation, other than pictures, would have to fulfil the
requirements set out in Article 1(3) 142 and Article 3143.
Further, the premise founded in European copyright law is that creativity is a human
attribute but when exploring the link to makes it clear that between machine invention
and copyright, copyrights' fundamental assumptions about creativity are called into
doubt. Not only does it evaluate the amount of originality by looking at the work
created, but it also evaluates the creator's part in the work of art; was it the author's own
intellectual production; were subjective decisions made; and does the work have a
personal touch? As a result, if the person who created the work lacks human creativity,
he or she is unlikely to be able to create copyrightable works. 144
The US Copyright Act stipulates that for a work to be protected by copyright, it must be
original and creative. Therefore, one of the fundamental prerequisites for copyright
protection is creativity. A work must have something that goes above and beyond the
original in order to satisfy this requirement of creativity. In spite of the fact that
reference to the source work that is used to describe another idea is utilized is
considered original, word for word use isn't. Consequently, just a minimum level of
creativity is expected for the work to meet all requirements for protection.
Section 308.1145 requires a work of authorship must possess “some minimal degree of
creativity” to sustain a copyright claim. "The us copyright law required extremely low
141
Directive 2006/116/EC (Term Directive).
142
Directive 2009/24/EC (Software Directive).
143
Directive 96/9/EC (Database Directive).
144
Annemarie Bridy, 2012, Coding Creativity: Copyright and the Artificially Intelligent, Stanford
Technology Law Review, vol.5, no. 10.
145
US Copyright Office, 2021, Compendium of US Copyright Office Practices, 3rd ed.
131
levels of creativity and therefore “slight amount" of creativity in work is acceptable. In

this way most of the work can qualify the requirement of creativity without much
difficulty”.
Although the requirement of creativity under US copyright Act is comparatively low

but it’s not negligible. Therefore if the creativity is absent in work or so insignificant as
to be essentially non-existent. Such work cannot get protection of copyright.
Section 313(2) of the compendium146 show the effect of lack of creativity in

copyrightable work and gives emphasise to the importance of having a human author, it
states that the Copyright Office "will not register works generated by a machine or
simply mechanical process that functions randomly or mechanically without any
creative input from a human author".
In this way copyright law of US does not require for any work to be represented in an
novel or surprising way but it cannot be so mechanical or routine as to require creativity
whatsoever. These provisions nowhere use any phrase which says that AI-generated
work cannot be creative. Therefore on the basis of creativity requirement AI-generated
work cannot be excluded form list of copyrightable subject matter.
4.5.2.2.3 INDIA
Although creativity is not listed anywhere in the Indian Copyright Act, 1957 but prima
facie on the basis of Section 13(1) it can be said that “there is need of ‘a minimum
amount of creativity’ for any work to be copyrightable”. This notion came through
147
interpretation of section 13(1)(a) employ "originality" as the primary criterion for
determining whether or not a work is protected.
According to Section 13(1)148 copyright exists in "original literary, dramatic, musical,

and artistic works.” However, the Copyright Act fails to give any definition or standard
for determining a work's originality. It seems that the Copyright Act does not requires
to apply the term "originality" in its literal sense, and it leaves it up to the courts to
determine how much originality is necessary for a work to be protected by copyright.
146
US Copyright Office “Compendium of US Copyright Office Practices.
147
Supra n.124.
148
Supra n.126.
132
The Indian Courts through their judgments have established that "the Indian Copyright
Act demands a certain level of creativity to classify work as copyrightable". But this is
still a grey area that what would be the degree of creativity. Because there is no proper
definition of originality, different doctrines are utilised in different legal jurisdictions..
On the basis of the above statutory provisions, it can be conclude at this point that if the
creator is an AI machine, the Indian Copyright Act lacks any particular provisions that
might clarify whether or not AI is capable of creating a creative work.
4.5.2.3 JUDICIAL APPROACH ON CREATIVITY - UNDER
The provision of EU under the Software Directive149 and the Database

Directive150requires that in order to get copyright protection the computer programs and
databases must be “original in the sense that they are an author’s own intellectual
creation.”151 These provisions were applicable only to protection of computer software
and data but in the case of Infopaq International v. Danske Dagblades Forening,152 the
CJEU made these requirements to be applicable universally regarding all works
claiming copyright protection. The CJEU has held that for any work to be
copyrightable it must be “an author’s own intellectual creation.”153 This phrase refers to
the originality of work which requires creativity of human author.154
In this case, Infopaq International was a media monitoring firm that used to send
summaries of chosen articles by email to its customers. This summary was popular as
"Infopaq created articles" and was prepared from the basis of Danish daily newspapers
and other periodicals. This was accomplished using a computer-assisted scanning
procedure. In summary, they used to send fragment of 11-word fragments, with 5
words preceding the keyword, the keyword itself, and then 5 words after.
149
Article 1(3), Directive 2009/24/EC (Software Directive).
150
Article 3, Directive 96/9/EC (Database Directive).
151
Article 1(3), Directive 2009/24/EC (Software Directive); Article 3, Directive 96/9/EC (Database
Directive); see also Article 6, Directive 2006/116/EC (Term Directive).
152
CJEU 16 July 2009, ECLI:EU:C:2009:465, Infopaq International v. Danske Dagblades Forening,
par. 37.
153
Ibid. See also European Parliament, 27 January 2017, Report with recommendations to the
Commission on Civil Law Rules on Robotics, Document 2015/2103(INL), 8, available from
https://www.europarl.europa.eu/doceo/document/A-8-2017- 0005_EN.html, [accessed 23 October
2021] (where the European Parliament asks the European Commission to clarify the criterion of
“own intellectual creation” with regard to works made by computers or robots).
154
Ibid.
133
When this fact came to the knowledge of Danske Dagblades Forening, they complained
to Infopaq, about this mal practice. Infopaq disputed this complaint by arguing that for
this type of scanning there is no need of any consent from right holders. Then Infopaq
filed suit against Danske claiming that the defendant should acknowledge the summary
process.
The main issue in this context was, whether eleven words may be protected by
copyright? The CJEU held that "the author may express his creativity in an original
manner only through the choice, sequence, and combination of words and create a
result which is an intellectual creation."155 The court further said while deciding the
creativity of work the court separated the originality from final work and focussed on
process of creation. On the basis of even without being original the work may be
creative and can get copyright protection. Therefore the 11 words are eligible for
copyright protection.
In the case of Eva Maria Painer v. Standard Verlags in which question was regarding
the protection to a portrait photograph taken at school. In this case the CJEU held that
“the work will be considered as an intellectual creation if the personality of author
reflected through the work”. Therefore if the author has used “free and creative
choices” while creation of the work then the work is copyrightable.156 In this case also
the court focused on creativity of author rather that originality of work for copyright
protection. This is known as “personal touch” approach reflected in form of the
creativity of the author.
Here by using the phrase "personal touch" raises further doubts about the need for a
human author. However, while there is no stated need for human authorship, the Court's
reference to a reflection of the author's personality simply implies that some form of
human engagement in the production process is required.157 On the basis of this
judgement the AI-generated work also deemed to fulfil the condition of creativity and
therefore under European Union liable for copyright protection.

155
Supra n. 152, p.45
156
CJEU 1 December 2011, ECLI:EU:C:2011:798 (Eva Maria Painer v. Standard Verlags) par. 92.
157
M. De Cock Buning, “Autonomous Intelligent Systems as Creative Agents under the EU
Framework for Intellectual Property”, European Journal of Risk Regulation 7 (2016), 310 (314)
(discussing that the Court's reasoning in Infopaq and Painer implies a human creativity
requirement).
134
In terms of creativity of a work in the United States, one of the oldest cases, Burrow
Gilles Lithographic Co. v. Sarony158, appears to be significant, in which the question
was whether a photograph may be awarded copyright protection was discussed. It was
also an important case because it dealt with the distinction between creative and
mechanical labour.
This case was concerned with the lithography firm Burrow-Giles' of a photographic
picture of Oscar Wilde. The defendant argued that a photographically created portrait
could not be protected by copyright since the image should be deemed a duplicate of
real life with no further human creative contribution. In applying copyright law, the
Supreme Court took a fairly modern approach by adopting a common law approach that
disregards the manner of creation, whether mechanical or not.159 By holding the
photograph to be original the Supreme Court opened the door for copyright protection
160
in the United States for mechanically generated works. As a result, awarding
copyright for works made by AI systems would be problematic but not impossible.161
Similarly, in another case, Bleistein v. Donaldson Lithographing Co162, the Court

distinguished between human and artificial creations. Holmes J. emphasised the
importance of human nature in creating a copyrightable work and Court stressed that
the work which was not a result of human's imagination cannot be copyrightable.
On the question of creativity of the work, until the decision of Feist Publications v.
Rural Telephone Service Company case163, certain US courts have accepted the “sweat
of the brow theory”. Instead of emphasising on originality, this philosophy was used to
emphasise on the quantity of labour used in the creation of work.
In this case of Feist Publications v. Rural Telephone Service Company164the US

Supreme Court, however, rejected the “doctrine of sweat of the brow” and evolved the
new doctrine “modicum of creativity”. According to this approach in order to get
158
159
Ibid.
160
Jeremy A. et.al., 2018, Research handbook on the law of AI, Edward Elgar Publishing Limited,
Massachusetts, USA, p.524, ISBN: 9781786439048.
161
Baker, Jonathan, 2020, The Advent of Effortless Expression: An Examination of the
Copyrightability of BCI Encoded Brain Signals Note, Minnesota Law Review. vol. 105, 3227,
available from https://scholarship.law.umn.edu/mlr/3227, [accessed 12 August 2021].
162
Bleistein v. Donaldson Lithographic Co., 188 U.S. 239, 251–52 (1903).
163
499 U.S. 340 1991.
164
Ibid.
135
copyright protection the work must be original in the sense of the US Constitution
which required that originality not lies only in this fact that ‘the work was
independently created and not copied from other’ but it should also possess minimum
level of creativity. The Court held that the copyright law exclusively protects the
products of intellectual labour that are based on the mind's creative capacities and in
this way “doctrine of modicum of creativity” was founded which required minimum
level of creativity.165
In this case the Court also discussed about the work which is in the form of
compilation. On the issue of factual compilation, the Court determined that these works
may have the required originality and may even become creative depending on the
facts. This is because the author, who is gathering the information, determines how to
acquire data, which data to utilise, and in what order. So that final work could be
meaningful for the users. Although these compilations lack the sufficient level of
creativity but are original.166
Therefore, on the basis of preceding case law, it appears that the process of creation is a
critical aspect in determining the work's copyrightability. The Court has emphasised
that not only the final work, but also the author himself must be creative. Because
creativity is linked to activities involved in the creation process such as "decision,"
"compilation," and "arrangement."
When we apply this approach to AI-generated work that is indistinguishable from

human-generated work, this creative criterion is met. The programmer can establish the
robot's creativeness by encoding it in it.
In present context the case of the Monkey Selfie167 might likewise be examined in this
light. Although this case was not related to AI-generated works but it was about the
creativity of animals. In this case, a monkey took his own photo, which eventually grew
in popularity and was claimed for copyright protection. The dispute arose as to whether
the monkey who used the photographer's camera was entitled to copyright on the
images. The Court found that copyright could not be granted to the monkey under
165
Supra n. 163.
166
US Supreme Court 17 March 1884 (Burrow-Giles Litographic v. Sarony), 111 U.S. 53.
167
CA Naruto v. Slater, No 16-15469 (9th Cir. 2018).
136
existing law, and that a monkey could not be an author.168 The US court used the
human-centric protection approach in this way to demonstrate that an intellectual work
can only come from the human mind.169
However, it can be believed that if the machine meets all of the criteria for originality,
why should it not be awarded copyright protection? At least on the basis of lack of
creativity, the AI-generated work should not be excluded from the list of copyrightable
work.
4.5.2.3.3 INDIA
In the case of Macmillan and Company v. K. & J. Cooper,170 it was held that the
concept of originality through creativity meant that the work had to be an expression of
an idea, not simply the idea itself, and that it didn't have to be in "original form," just
that it shouldn't be taken from other people's work.171
However, the current Indian Copyright Act necessitates a certain amount of creativity
in order to classify something as copyrightable. This concept of minimum amount of
creativity is known as “modicum of creativity” which had been was derived from the
US judgement172 and utilised for the first time in India in the case of Eastern Book
Company v. D B Modak173. In this case it was held that “to claim copyright in a
compilation, the work must be original by virtue of selection, coordination and
arrangement of pre-existing matter contained in the work”, in other words “the work
must be outcome of author’s skill and judgement, which may not be creative in true
sense that it is novel or non-obvious, but at the same time it should not be a product of
merely labour and capital". “The author's derivative work must have some
distinguishing characteristics and flavour." As a result, demonstrating specific skill and
judgement is a basic need for every compilation or derivative work. The judgement also
168
Ibid; See also, U.S. Copyright Compendium of U.S (3rd) Section 306: ‘The copyright law only
protects the fruits of intellectual labor that are founded in the creative powers of the mind. Because
copyright law is limited to original intellectual conceptions of the author, the Office will refuse to
register a claim if it determines that a human being did not create the work’.
169
Prof. Anthoula Papadopoulou, 2021, Creativity in crisis: are the creations of AI worth protecting?,
JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law, July,
vol.12, no. 03, point no. 8, available from https://www.jipitec.eu/issues/jipitec-12-3-
2021/5352/#ftn.N1015E, [accessed 27 October 2021].
170
AIR 1924 PC 75 (India).
171
Ibid.
172
Feist Publications v. Rural Telephone Service Company, 499 U.S. 340 1991.
173
(2008) 1 SCC 1.
137
defined primary work as literary work not based on the existing subject matter and
secondary or derivative work as work based on existing subject matter.
In the case of Rediff.com India Ltd v. E-Eighteen.com Ltd., the Delhi HC held that “for
granting copyright to a derivative work, it is necessary to have substantial creativity”174.
The other point becomes necessary in this context is whether creativity is solely related
with humans or whether a non-human factor may be "creative" as well. The term
creativity has emerged as an important factor of originality as a result of judicial
pronouncement, but it is not defined anywhere in any statute. However, in the cases of
Syndicate of the Press of Dr. Reckeweg & Co. GmbH v. Adven Biotech Private Ltd175
and University of Cambridge v. B.D. Bhandari176, the approach of judiciary was that
creativity was regarded as a human ability. As a result, prima-facie AI-generated work
lacks the ability to be creative.
On the basis of above study, it can be said that there may not be such a thing as
"creativity" because neither humans nor robots can produce information. It's just a
process of combining past knowledge in multiple ways. Human creates just what his
genes and prior experience enable him to do, just as machines do only what the
programme that is fed into them by the programmer allows them to do, however AI is a
step ahead since it learns from its previous work and experience, which it may employ
in creation. In this approach, the researcher sees no difference between a human and a
machine, whether in the form of a computer programme or AI.
4.5.3 FIXATION OF WORK OR IDEA-EXPRESSION DICHOTOMY
In order to copyright protection it requires that the work be expressed and fixed in
physical form so that it may be used at a later point. This is known as the concept of
idea-expression duality in copyright. This is a well-known principle that establishes the
boundaries of copyright protection.
174
Rediff.com India Ltd v. E-Eighteen.com Ltd., 2013 (55) PTC 294(Del) at p. 312.
175
Dr. Reckeweg & Co. GmbH v. Adven Biotech Private Ltd., 2008 (38) PTC 308 (Del).
176
Syndicate of the Press of the University of Cambridge v. B.D. Bhandar, 2011(47) PTC 244 (Del.)
(DB) at p. 293,
138
According to a basic concept of copyright law copyright protects the expression of an

177
idea, but not the idea itself. The fundamental goal of copyright legislation is to
"advance the progress of science and the useful arts”. Copyright encourage individuals
to build freely on other people's ideas while also preserving author’s rights to the
178
original expression of their ideas. Finding the line that divides concept and
expression, on the other hand, is a problem that "nobody has ever been able to solve."
Copyright protection is offered just for an author's expression of the work and will
safeguard an author's copyright against unauthorised duplication. Although such an
expression might be founded on an idea, the fundamental concepts are not protected by
copyright. In general, the idea-expression dichotomy divides work, which is a core
topic of copyright, into components that may or may not be protected by copyright. In
this way this principle restricts the scope of copyright protection and ensures that ideas,
information and abstract concepts can freely circulate.179
4.5.3.1 TEST FOR IDEA-EXPRESSION DICHOTOMY
Although the “doctrine of idea-expression dichotomy” is clear, but differentiating an

idea from an expression can be challenging, especially when the idea is narrow or the
work is a mix of reality and fiction. In this regard various from different nations have
evolved some tests, which are as follows.
4.5.3.1.1 MERGER TEST
The US Court When it involves a restricted notion that can only be articulated in a
limited number of ways, it may be difficult to differentiate between idea and
expression. In this case, the idea and the expression combine, and the expression of
narrow idea are not copyrightable.180 In the case of Morrissey v. Procter & Gamble Co,
the court held that “If the non-copyrightable subject matter is exceedingly restricted, as
177
Baker v. Selden, 101 U.S. 99, 102 (1879).
178
Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 111 S. Ct. 1282, 1290 (1991).
179
Dominika Galajdová, Artificial Intelligence as a new challenge for software law, Ph.D. Thesis,
Institute of Law and Technology, Masaryk University, Czech Republic, ECTA Online, available
from https://ecta.org/ECTA/documents/DominikaGalajdova2ndStudentAwardwinner20191108.pdf,
[accessed 17 August 2021].
180
Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678 (1st Cir. 1967).
139
it must be, and there are no alternative methods to depict it in the best way possible,
copyright over that work cannot be claimed."181
4.5.3.1.2 ABSTRACTION TEST
The US Court When a work combines reality with fiction; it might be difficult to tell
the difference between the idea and expression. The court applied the “abstraction test”
in Nichols v. Universal Pictures Corp.182, and said if expression is just impossible to
distinguish from the underlying idea. The test, which was originally used to assess if a
film infringed on the copyright of a similarly themed play, is now used to determine the
difference between idea and expression.
4.5.3.1.3 LAY OBSERVER’S TEST
To distinguish idea from expression the Indian Court have established the “test of Lay
Observer”. While explaining the test in the case of R.G. Anand v. Deluxe Films183 the
Supreme Court of India said that “as the name suggests, in this test layman used to
check the similarity or dissimilarity between the work of the plaintiffs and defendants.”
Their assessment of the works' resemblance or dissimilarity is subsequently taken into
account to decide the case.
4.5.3.1.4 EXTRACTION TEST
Recently, the Bombay High Court in the case of Shamoil Ahmad Khan v. Falguni Shah
& Ors (2020)184 has evolved a new test termed as “extraction test” to differentiate the
idea from expression. The Court explained that “with the support of characters and
surroundings a seed of an idea at first develops into a theme, then after turns into a
plot, and finally converted into a whole writing. The final work is amalgamation of all
efforts which gives true sense to the abstract ideas. If the final work could be removed
from all the ancilery elements, then the unprotectable idea can be extracted from final
work”.185
181
Ibid.
182
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
183
AIR 1978 SC 1613.
184
MH/0590/2020.
185
Debnath, A. 2021, Legal analysis of theory of idea-expression dichotomy, I-pleader Blog [online],
15 December, available from ://blog.ipleaders.in/legal-analysis-of-theory-of-idea-expression-
dichotomy/, [accessed 21 December, 2021].
140
This judgement was based on the decision of the Supreme Court given in the case of
Krishika Lulla vs. Shyam Vithalrao Devkatta186, in which the Supreme Court had stated
that “If merely the identical title is used, there is no copyright infringement, but there
may be a case of passing off. And, in order to establish passing off, the plaintiff must
show that the title of his work has such a reputation that the public associates the work
only with the Plaintiff.”
The aforesaid tests are very helpful to distinguish the ides from expression. This
distinction is necessary because copyright protects the expression and not the idea.
4.5.3.2 INTERNATIONAL PERSPECTIVE
The idea-expression dichotomy allows others to express the same or similar concept
while still being protected by copyright as long as the expression passes the originality
requirement. As a result, unlike product patents, copyright does not grant a monopoly
over commercially viable ideas to the right holder.
The concept of idea-expression dichotomy under copyright is so important that even at

international level also the non-protection of ideas has been explicitly provided in
international treaties.
4.5.3.2.1 BERNE CONVENTION
Regarding the idea-expression dichotomy, the Berne Convention provides that the
copyrights protect creative expression and not ideas. This is generally acknowledged in
Article 2(1) 187but not in explicit terms.
Article 2(1) provides that The expression "literary and artistic works" shall include
every production in the literary, scientific and artistic domain, whatever may be the
mode or form of its expression, such as books, pamphlets and other writings; lectures,
addresses, sermons and other works of the same nature; dramatic or dramatico-musical
works; choreographic works and entertainments in dumb show; musical compositions
with or without words; cinematographic works to which are assimilated works
expressed by a process analogous to cinematography; works of drawing, painting,
architecture, sculpture, engraving and lithography; photographic works to which are
186
Krishika Lulla v.Shyam Vithalrao Devkatta, Cr. Appeal No. 258 & 259 of 2013 SC.
187
Berne Convention, 1886 (as revised Paris in 1971).
141
assimilated works expressed by a process analogous to photography; works of applied

art; illustrations, maps, plans, sketches and three-dimensional works relative to
geography, topography, architecture or science
The WIPO’S Guide to the Berne Convention, in its commentary to Article 2(1), states:
“a functional point is that ideas, as such, are not protected by copyright. It is the patent
rather than copyright laws to which one must look for protection.”
4.5.3.2.2 TRIPS AGREEMENT
Under copyright the literary and creative works that are a concrete and unique
expression of the authors are protected. The need of concrete form is connected to the
so-called "idea-expression dichotomy”, which states that “copyright protection is not
accessible to purely abstract concepts and principles until they are conveyed in a
tangible manner”.188
With regard to idea-expression dichotomy, Article 9(2) of the Agreement on the Trade-
Related Aspects of Intellectual Property provides that: ‘Copyright protection shall
extend to expressions and not to ideas, procedures, methods of operation or
mathematical concepts as such’.
4.5.3.2.3 WIPO COPYRIGHT TREATY, 1996
The WIPO Copyright Treaty (hereinafter referred as the WCT) under Article 2189 talks
about the “scope of copyright protection” also provides specific provision regarding
idea-expression dichotomy. This provision uses the similar provision as used in Article
9(2) of the TRIPS.
It provides that “copyright protection extends to expressions and not to ideas,

procedures, methods of operation or mathematical concepts as such”.
On the basis of above discussion on the idea-expression dichotomy, it is evident that at

the international level, all applicable conventions and treaties require that the work
must be in the form of expression rather than the abstract form of the idea. When it
comes to AI-generated work, it must fall within the category of expression as well.
188
Article 9(2) TRIPS Agreement.1995.
189
WIPO Copyright Treaty, 1996.
142
Primary research indicates that AI-generated work meets the requirement of expression,
making it eligible for registration under copyright rules.
4.5.3.3 NATIONAL PERSPECTIVE - UNDER
The thrust area of this research is the AI-generated work, it is necessary to determine if
AI-generated works meet the "requirement of expression" in order to be eligible for
copyright protection. The study has explored the perspective of several countries'
judiciaries to the “idea-expression dilemma” below.
No clear distinction has been made between an idea and its expression under the UK
copyright regime. In this regard, Section 3(2)190 specifies that “literary, dramatic, and
musical works must be recorded (or fixed) in a physical form in order to be protected
by copyright.
This provision191 clearly states that "in order to get copyright protection, the work must
be fixed in tangible form." The term "fixed in tangible form" has no other purpose than
to demonstrate the need for expression. As a result, copyright is confined to the
protection of a certain kind of expression.
Under United States, the Copyright Act protects creative original expression but not the
ideas that go with it. In this regard Section 102(a)192 provides that "Copyright
protection exists, in accordance with this title, in original works of authorship fixed in
any tangible medium of expression, now known or later developed, from which they
can be perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device". There are eight types of works listed in this section which
are considered as works of authorship.
The phrases "fixed in any tangible medium of expression" that can be now known or
later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device" used in this
190
The UK CDPA 1988.
191
Section3(2), The UK CDPA 1988.
192
Section 102, The US Copyright Act, 1976, 17 U.S.C.
143
Section 102(a)193 is an important point of discussion. Any work to be copyrightable

must be fixed in any tangible medium of expression, and when it comes to AI-
generated work, there appears to be no technicality in this clause that prevents AI-
generated work from being copyrightable because AI-generated work can also be
likewise fixed in a physical medium of expression.
The idea-expression dichotomy was codified for the first time in 1976. Section 102(b)
of the Copyright Act of 1976 provides: "In no case does copyright protection for an
original work of authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work."
Further, section 102(b)194 provides that in any case without fixation of the work
copyright cannot be granted to “any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work.” In this way this provision
is based on the common law principle known as the “idea/expression dichotomy.”195
Although the doctrine is clear in itself, differentiating an idea from expression can be
difficult because the terms "idea" and "expression" has not been provided under Section
101 in listed definitions. Congress purposefully left it up to the courts to determine
where the line between idea and expression should be drawn.
On the basis of section 102(b), it may also be claimed that if the work is created using
AI, there appears to be no reason in this provision preventing AI-generated work from
being copyrightable or excluding it from the scope of 102(a) i.e. expression.
193
Ibid.
194
Section 102, The US Copyright Act, 1976, 17 U.S.C. In General, provides that “in no case does
copyright protection for an original work of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work”.
195
Oracle Am., Inc. v. Google Inc., 750 F.3d (Fed. Cir. 2014). at 1354, As cited by Baker, Jonathan,
2020, The Advent of Effortless Expression: An Examination of the Copyrightability of BCI
Encoded Brain Signals Note, Minnesota Law Review. vol. 105, 3227, available from
https://scholarship.law.umn.edu/mlr/3227, [accessed 12 August 2021].
144
4.5.3.3.4 INDIA
Although the Copyright Act of India comprehensively dealt the laws related to
copyrights under Copyright Act, 1957 but it does not define an idea or an expression,
and it is also silent on the distinction between the two. The copyright law in India does
not specifically mention the idea-expression dichotomy but by virtue of Section 13, one
point is clear that the Copyright Act grants protection to the following works:
Original literary, dramatic, musical and artistic works;

Cinematographic films, and
Sound recording
While examining the provision of section 13196 on the issue of "idea-expression

dichotomy," one concern need to be explored that, what exactly is covered by
copyright? From the analysis of section 13 it is apparent that copyright protects
"originality," and that "originality" is thus the "sine qua non" of copyright. The criteria
of originality can be satisfied when the work is fixed in a tangible medium of
expression. Therefore, ultimately it is the expression which represent through tangible
medium in which work got fixed, makes the work copyrightable under Indian
Copyright regime.
From the study of the preceding section it is also obvious that copyright exists only in
the tangible form into which ideas are transferred, and that copyright does not exist in
ideas alone. A same idea about the book may be shared by two authors. However, it is
how they articulate themselves, that is, how they put their ideas down in a physical
form that makes the difference. It is the format in which a certain idea is safeguarded
after being translated.
The key rationale behind the protection of expressions rather than ideas is to ensure that
ideas could freely flow. The copyrighting of ideas would eventually put a stop to
creativity and innovation. Because of this, the freedom to replicate ideas is at the heart
of copyright legislation.
After the analysis of the provisions of the EU, the United Kingdom, the United States
and India, it is clear that the expression of ideas is protected under copyright in all of
196
Indian Copyright Act, 1957.
145
these territories, but the researcher found no point in these provisions that could prevent
AI-generated work from being considered "work deduced in tangible medium of
expression." As a result of this fundamental study, the researcher believes that AI-
generated work meets the criteria of "expression fixed in physical media," and hence
cannot be denied copyright protection based on that requirement.
4.5.3.4 JUDICIAL TRENDS - UNDER
In the United Kingdom, the concept of idea-expression dichotomy developed in the

eighteenth century during a debate over common law property.197 In the case of Millar
v. Taylor, when the court famously decided that the common law copyright exists in
perpetuity. In this case, dissenting judge Yates J. stated that "Ideas are free." However,
while the author confines idea to his study, they are like birds in a cage, which can be
released only by him: because, until he deems it fit to release them, they remain under
his own control”. Judge Yates claimed that once an author has released his "birds"
(ideas) free, no one can take them away from him because now the “birds” (idea) is not
in control of author.198
Subsequently in case of Donaldson v. Beckett199, the Court overturned the Millar’s

ruling on the issue of ideas.200 In this case Lord Camden was agreed with the Yates J.
and stated that “the recovery of incorporeal idea separate from the substance to which
they are affixed was not possible under common law”.
In twentieth century on the issue of idea-expression dichotomy the landmark judgement

was given in the case of University of London Press Ltd. v. University Tutorial Press
Ltd.201, in which Peterson J. observed that “Copyright Acts are not concerned with the
originality of ideas, but with the expression of thought. The originality which is
required relates to the expression of the thought”.
Further, the House of Lords examined what it meant to assume that idea had no
copyright and what the foundation of the idea-expression dichotomy. The detail
197
Supra n.8, p.181
198
Millar v Taylor (1769) 4 Burrow 2378-9.
199
Donaldson v. Becket (1774) Hansard, 1st ser., 17 (1774): 953-1003.
200
Cobbett's Parliamentary History of England (1774) XVII 954.
201
[1916] 2 Ch. 601.
146
discussion was done in the case of Designers Guild Limited v Russell Williams
(Textiles) Limited.202 In this case Lord Scott recognised the principle of idea expression
dichotomy by stating that “all copyright works are founded on an idea, and all works
are the manifestation of the author's thought as demonstrated by his choice of
expression methods”. Therefore ‘It is not a breach of copyright to borrow an idea,
whether of an artistic, literary or musical nature, and to translate that idea into a new
work’. Similarly in the case of Sawkins v. Hyperion Records203 it was also held by the
Court of Appeal that “the use of the information, feelings, or emotions contained in the
copyright work is not prohibited by copyright”.
In modern time to test the copyrightability of the work, the principle of ide-expression
dichotomy has been recognised at the highest level. The House of Lords in the case
L.B. (Plastics) Ltd v. Swish Products Limited has described it as ‘trite law’204 which
was subsequently upholded by the Court of Appeal as ‘a cliché of copyright law’.205
First time in United States of America the problem of idea-expression dichotomy was
discussed in a seminal case Baker v. Selden,206 In this case "The plaintiff Selden wrote
and received copyrights on a series of books setting forth a new system of
bookkeeping". For using this book keeping system he had also attached numerous
forms "with ruled lines and titles" with the books. 207
The plaintiff filed suit for copyright infringement after the defendant Baker used these
“forms with rules and headings” in his published account books, alleging that the "ruled
lines and headings, given to illustrate the system, are was a part of the book" and that
"no one can make or use similar ruled lines and headings, without violating the
202
[2000] UKHL 58, [2000] 1 WLR 2416.
203
[2005] EWCA Civ 565, [2005] 1 WLR 3281.
204
L.B. (Plastics) Ltd. v Swish Products Ltd., (1979) RPC 551 (HL) 629.
205
SAS Institute Inc. v. World Programming Ltd., (2013) EWCA Civ 1482, [2015] E.C.D.R. 17, [20]
206
Oracle Am., Inc. v. Google Inc., 750 F.3d (Fed. Cir. 2014). at 1355 (citing Baker v. Selden, 101
U.S. 99, 101 (1879)). As cited by Baker, Jonathan, 2020, The Advent of Effortless Expression: An
Examination of the Copyrightability of BCI Encoded Brain Signals Note, Minnesota Law Review.
Vol. 105, 3227, available from https://scholarship.law.umn.edu/mlr/3227, [accessed 12 August
2021].
207
Oracle Am., Inc. v. Google Inc., 750 F.3d (Fed. Cir. 2014).
147
copyright." 208 It was held by the Court that copyright cannot be claimed over pattern of
ruled lines and heading because it is common and can be used by anyone.
The Court further explained that “if the using of forms is necessary to make use of the
accounting system, then using forms in such way would not amount to copyright
infringement.”209
Similarly, in the case of Landsberg v. Scrabble Crossword Game Players, Inc,.210 the
US Court further held that “copyright protects only an author's expression of an idea,
not the idea itself."211 Whereas in the case of Hoehling v. Universal City Studios, Inc.,
while applying the principle of idea-expression dichotomy the court said that “the
author cannot claim copyright in historical facts or in theories”.212 And it is the
“expression which makes the idea unique, specific, and therefore the property of its
creator”.213
Although the doctrine is clear in its intent but in practice distinguishing idea from
expression is very difficult, especially when a work integrates a specific notion that can
only be presented in a limited number of ways or when a work combines reality and
fiction. In such situation the court has applied the abstraction test, which was
established by Judge Learned Hand in the case of Nichols v. Universal Pictures Corp.214
In abstraction test the fact seeker is basically told to think about the authorship of such
work which included series of works. Each work has an underlying concept; it is the
work's basis. The literal text of a work is the uppermost layer; this text expresses the
author's expression. Paraphrases and summaries of the material are sandwiched
between these two levels. Courts and fact-finders are tasked with establishing which
208
Supra n.195
209
Ibid.
210
Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir. 1984).
211
Supra n.105.
212
Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir. 1980), as Baker, Jonathan,
2020, The Advent of Effortless Expression: An Examination of the Copyrightability of BCI
Encoded Brain Signals Note, Minnesota Law Review. Vol. 105, 3227,
https://scholarship.law.umn.edu/mlr/3227[accessed 12 August 2021].
213
Jon M. Garon, Normative Copyright: A Conceptual Framework for Copyright Philosophy and
Ethics, 88 CORNELL L. REV. 1278, 1290 (2003).
214
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
148
layer separates expression from idea and giving copyright protection solely to works (or
parts of works) that constitute expression.215
To separate idea from expression, one of the landmark judgements was given in the
case of Computer Associates International Inc. v. Altai Inc.216 The United States Court
of Appeals for the Second Circuit ruled in this case, establishing a three-step
methodology to identify the extent and scope of the idea-expression dichotomy. The
following are the three steps involved in this procedure are required:
Abstraction
Filtration
Comparison
This test is known as the Abstraction-Filtration-Comparison test and has been used to
discover significant similarities between two creative works. By comparing the
protectable portions of two programmes, it has been used to assess whether non-literal
elements of a computer programme have been copied.217
In this regard one of the legendary American jurist and legal scholar Justice Holmes in
one of his most famous quotes has written that “others are free to copy the original,
they are not free to copy the copy” This quotation can serve as a good example of the
idea-expression dichotomy, in which the original is the concept and the copy is the
expression of that idea. 218
In United States v. Moghadam219 the Court found that an implicit criterion for statutory
copyright eligibility may still exist: the original expression must be fastened to a copy
that is, given physical permanence and perceptibility by the author's hand at some point
during the creative process. Because such "unexpressed expressions" are only ideas. An
author who thinks of sufficiently unique expression but does not write, type, or speak
that expression into the world cannot claim a copyright for his or her "unexpressed
expression."
215
Ibid. “In such cases we are rather concerned with the line between expression and what is
expressed.”
216
982 f.2d 693
217
Debnath, A. 2021, Legal analysis of theory of idea-expression dichotomy, I-pleader Blog online, 15
December, //blog.ipleaders.in/legal-analysis-of-theory-of-idea-expression-dichotomy/, [ accessed 21
December, 2021].
218
Debnath, A. 2021, Legal analysis of theory of idea-expression dichotomy, I-pleader Blog online, 15
December, //blog.ipleaders.in/legal-analysis-of-theory-of-idea-expression-dichotomy/, [ accessed 21
December, 2021].
219
175 F.3d 1269, 1273 (11th Cir. 1999).
149
Under US law is a work is fixed in a tangible medium of expression "when its

embodiment in a copy or phonorecord by or under the authority of the author, is
sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration,". 220
The courts found that fixation has two requirements as in the case of Cartoon Network
LP v. CSC Holdings, Inc.221: in this case it was upheld that one is "embodiment
requirement" and other is "duration requirement."222 The work "satisfies the
embodiment criterion" if it is "put in a medium in such a way that it may be viewed,
reproduced, etc., from that medium."
Video games that generated audio visual effects were determined to fulfil the
embodiment criterion in the case of Williams Elecs., Inc. v. Artic Int'l, Inc.223, despite
the games creating "new" visuals each time they were played. If a work is embodied in
a medium for "greater than a transitory period," that is, at least a few seconds, it meets
the duration criteria.224 This criterion of being fixed is met by recording a work on tape,
and sculpting a work out of marble or ice!, or writing a work on paper or on a computer
hard drive.
Further in the case of Homes v. Homes,225 it was also decided that the common fixation
is not eligible for copyright protection since it lacked "originality." While fixing the
work, a minimum quantity of intellectual thought must be present. 226
220
Section 102, The US Copyright Act, 1976, 17 U.S.C.
221
536 F.3d 121, 127 (2d Cir. 2008).
222
Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 127 (2d Cir. 2008).
223
Williams Elecs. Inc. v. Artic Int’l, Inc., 685 F.2d 870, 874 (3d Cir. 1982).
224
Cartoon Network LP, 536 F.3d at 128–29; see also Advanced Computer Services of Michigan, Inc.
v. MAI Systems Corp., 845 F. Supp. 356, 363 (E.D. Va. 1994) [“If a computer is turned off within
seconds or fractions of a second of the software loading, the resulting RAM representation of the
program would be too ephemeral to be considered ‘fixed’ or a ‘copy’ under the Copyright Act.”].
225
Homes v. Homes, 1995 F.S.R. 818.
226
Ibid.
150
4.5.3.4.3 INDIA
In the case R.G. Anand v. Delux Films & Ors.,227 the jurisprudence on the idea-
expression dichotomy was first explored in India. In this case, the plaintiff was stage
producer and a part-time playwright. He claimed that the defendant, a film director had
plagiarised substantial portion of his play by converting them into a film. Therefore his
copyright had been violated. The respondent claimed that the theme was shared to both
and that it was not original idea of plaintiff.
In this case the Supreme Court was asked to explore the concept of idea-expression
dichotomy. While determining the case, the Supreme Court after carefully examining,
considering, and clarifying the relevant authorities and case laws evolved following
propositions:
1)
Copyright infringement is limited to the form, manner, and arrangement
and presentation which is made by the author while creation of work, therefore
in themes, plots, historical or legendry facts, and idea cannot be infringed.
2)
There may be possibility of similarity in works when same idea is
developed in a different way. In this situation the must decide whether the
similarity between the works is in essential part of the work. If the violating
work is imitation of original work with minor modifications then it amounts to
infringement.
3)
The simplest and reliable way to check the violation is the doctrine of
prudent person. In this approach when a prudent person such as the reader,
spectator, or viewer after viewing both works unquestionably is of the opinion
that the following work seems to be a copy of the original. Then it amounts to
infringement.
4)
But where the same theme is presented differently then it will not
amounts to infringement.
5)
There will be no infringement of copyright if the proportion of
dissimilarities is greater than the proportion of similarities and is sufficient to
indicate the subsequent author's negative intention to duplicate and that the
resemblance was purely coincidental.
227
R.G. Anand v. Delux Films & Ors. AIR 1978 SC 1613.
151
6)
Because a breach of copyright constitutes piracy, it must be proven by
unambiguous and convincing evidence.
7)
If a film producer utilises a stage play with a broader viewpoint than the
stage play, the producer employs a larger background, a greater field, more
colour, and intricacies that are separate from the original work. Even though, if
the audience is under impression that the film is an imitation of a theatrical
production. It is sufficient to establish that the copyright has been violated.
While deciding the case the court compared both the work and found that, while the
idea of provincialism was the same in both, the later work's presentation and treatment
were dissimilar. The obvious similarities between the two works were superficial and
the vast differences show that the author had no intention of plagiarising the original.
As a result, it was determined that there was no copyright violation in this case.
Later in R. Madhavan v. S.K. Nair228, the Kerala High Court applied the seven-point
test as evolved in the case of R.G. Anand v. Delux Films & Ors.,229 In this case court
held that there was no likeliness between the film and the text in terms of topic, scenes
or events. There is no violation of copyright as the events, settings and scenes shown in
the film differed significantly and substantially from those present in novel of plaintiff.
Likewise, in the case of Anil Gupta v. Kunal Dasgupta230, the High Court of Delhi
examined the notion of idea-expression dichotomy in 2002. The plaintiff offered the
defendant with a plan for a "reality match-making television show," which the
defendant initially rejected but later adopted for his own business. According to Court,
there was just idea communicated over which copyright could not be asserted.
On this issue another important case is of Eastern Book Company and Ors. v. D.B.
Modak231 was decided by the Supreme Court in 2008. In this case the court determined
that “the Copyright Act is concerned with the expression of thought rather than
originality of ideas”. On the question, whether copies of edited judgements are entitled
to get protection under copyright? The court held, “as the court decisions always given
for public and kept as public document therefore no copyright can be claimed in
judgements”.
228
AIR 1988 Ker. 39.
229
230
IA 8883/2001 in Suit no.1970 of 2001.
231
(2008) 1 SCC 1
152
The principle explained in the case of R.G. Anand v. Delux Films & Ors232 was
followed in some recent cases, such as in XYZ Films LLC v. UTV Motion
Pictures233, Mansoob Haider v. Yashraj Films Pvt. Ltd. and Shamoil Ahmad Khan v.
Falguni Shah234.
When it comes to AI-generated work, the Copyrights Act has not been very sensitive to
the tangibility of work, as discussed above. In the case of Tata Consultancy Services v.
State of Andhra Pradesh235 the Computer generated programmes were recognized as
work to be tangible. In R.G Anand v. M/S. Delux Films236, it was said that the law does
not recognise property rights in abstract concepts, therefore an idea is not protected
under copyright till giving physical embodiment, and that a copyright only exists when
the idea is given tangible embodiment.
As a result, AI-generated work seems to be recognised as physical work since it is

always discovered in printed form or another format that is impossible to modify. On
the basis of tangibility or fixation the AI-generated work cannot be removed from the
list of work which are eligible for protection of copyright
It is evident from the discussions above that the introduction of artificial intelligence
into the creative industry has created a number of problems for the copyright regime.
Because these kinds of works raise a number of concerns, including those related to
copyrightability, authorship, and ownership of the work, copyright offices are now in
dilemma as to whether to grant copyright protection to AI-generated works. In this
chapter, one of the most crucial issues the copyrightability of AI-generated work has
been covered.
After aforementioned discussions, the researcher has come to the conclusion that by
satisfying the many requirements that render any work copyrightable, AI-generated
works are also eligible to receive copyright protection.
232
233
2016 SCC On Line Bom 3970.
234
2020 SCC On Line Bom 665.
235
Tata Consultancy Services v. State of Andhra Pradesh, (2004) 137 STC 620.
236
R.G Anand v. M/S. Delux Films, AIR 1978 SC 1613; Bobbs-Merrill Company v. Isidor Straus &
Nathan Straus, 210 US 339 (28 S.Ct. 722, 52 L.Ed. 1086).
153

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AI-GENERATED WORK AND COPYRIGHTABILITY ISSUES

AI-GENERATED WORK AND COPYRIGHTABILITY ISSUES

4.2 MEANING AND DEFINITION OF COPYRIGHTABILITY

Copyrightability is a parameter and the easiest way to determine whether a work is

4.3 WORKS PROTECTED UNDER COPYRIGHT

4.3.1 LITERARY WORKS

Copyright subsists in original dramatic works. According to Section 2(h)1, dramatic

4.3.3 COMPUTER PROGRAMME

Copyright subsists in original computer programme. Section 2(ffb)3 states that

4.4 COPYRIGHTABILITY UNDER VARIOUS

It is vital to examine the position of works produced by artificial intelligence in the

4.4.1 INTERNATIONL LEGAL FRAMEWORK

It is vital to examine the position of works produced by artificial intelligence in the

4.4.1.1 BERNE CONVENTION

On the basis of this provision, the AI-generated work cannot be denied to be

4.4.1.2 TRIPS AGREEMENT

The Agreement Related to Intellectual Property (hereinafter referred as TRIPS) does

4.4.1.3 EUROPEAN UNION

On subject matter of copyright, the current EU copyright regime is mostly silent.

4.4.2 NATIONAL LEGAL FRAMEWORK

1) Whether the thought and articulation are naturally associated. Normally

On the basis of aforementioned provisions, it may be concluded that prima-facie under

4.5 ESSENTIALS OF SUBJECT MATTER TO BE

answer is no since a work must fulfil certain requirements in order to be copyrightable,

1) Work must be original,

4.5.1 WORK MUST BE ORIGINAL

4.5.1.1 INTERNATIONAL POSITION

to get protection under copyright. Therefore, those provision of international copyright

4.5.1.1.1 BERNE CONVENTION

On the basis of abve-mentioned provisions35, there appears to be no difficulty in

4.5.1.1.2 TRIPS AGGREEMENT

Originality of work is required since an expression is only protected to degree that it

4.5.1.2 NATIONAL POSITION - UNDER

The artistic, literary, or dramatic work's copyrightability is contingent on its originality.

4.5.1.2.1 EUROPEAN UNION

databases37 and photographic works38 under European harmonised copyright legislation

• “A computer program shall be protected if it is original in the sense that it is the

Prima-facie, it appears that, with the exception of software, databases, photographic

required to meet the requirement of originality, later on, this requirement of

Article 1(3), Computer Programs Directive provides that “a computer programme is

4.5.1.2.2 UNITED KINGDOM

Likewise, by virtue of section 4(1)(c)48 also which is specifically applicable to visual

4.5.1.2.3 UNITED STATES OF AMERICA

whereas creativity of the work is recognised as a subjective approach. 49 Section 8(8),

Burrow-Giles Lithographic Co. v. Sarony56, as an essential prerequisite." Section

4.5.1.3 JUDICIAL APPROACH - UNDER

4.5.1.3.1 EUROPEAN UNION

Similarly, in case of Football Association Premier League v. QC Leisure and Others69

4.5.1.3.2 UNITED KINGDOM

In aforementioned cases, the threshold of originality was considered to be ‘skill and

4.5.1.3.3 UNITED STATES OF AMERICA

Further, in cases of Anshel v. Puritan Pharmaceutical Co.99 the court applied

4.5.1.3.3.1 DOCTRINE OF MODICUM OF CREATIVITY

Whether the thought and articulation are naturally associated. Normally

4.5.1.4 CONCLUDING REMARKS

4.5.2 WORK MUST BE CREATIVE

4.5.2.1 CREATIVITY UNDER INTERNATIONAL PERSPECTIVE

4.5.2.2 CREATIVITY UNDER NATIONAL PERSPECTIVE