We have been using digital contents since a long time when the computers replaced human manpower and emerged as a tool to work faster and comfortably. Since that time technology has changed a lot and now a day’s computer are being used as an essential and integral part in every domain of work. Not only that the use of smart phones with the internet has revolutionized the way human live now. We play games on computer; create graphics, music, videos, software and many other things using them. They are acting as a guide while travelling; providing us with the route from our departure point to destination point. We never thought that these are all computer generated works or work created by the help of computers. But one question arise here that who can claim copyright in computer generated works or who will be termed as its owner. This project report will examine the various approaches towards this question and I will give suggestions in last that how it should be treated.
Introduction
Indian copyright act was enacted in the year 1957 hence resolving the cases related to the claim of copyright in different categories of works. The general rule in Indian copyright act is that the author of the work is also its first owner1 unless there is an agreement between the author and the other party. As long as the work is directly connected with a human being it is easy to decide its author for example in the case of a literary work the author will be the writer, in photographs the author will be the person who took the photographs. It is not necessary that the author of the work will also be the owner of the work for example in the case of work for hire or work created under some agreements. But one thing is common that the author of the work is still a human being and hence copyright can be claimed in it.
But as the technology changed and the use of new and sophisticated machines which were capable to do the things that were impossible earlier, new types of work were developed by the using them which we call Computer Generated Work (CGW). It also raised a simple question that as the human is not the author of those works than who will claim copyright in it or will be termed as its owner. This question has raised several issues and is still a topic of discussion in various countries that do not have a specific law for it. To claim a copyright in any work one of the essential requirement is that it should have minimum modicum of creativity. So can a computer be termed as creative creature? These are all the questions which have to be answered before we give any decision on this point.
Let us understand considering a scenario which will explain the concept of computer generated works. Suppose you are going for a business trip in a new city and you have to reach at the meeting point which is somewhere in the middle of the city. As you are not familiar of the routes you took your smart phone and searched for the destination point from where you are at right now using a Google maps on your smart phone or any other navigation application on it. As soon as you type the destination address on it a detailed route appeared on your screen with the distance, time to reach and turn by turn navigation. Artificial Intelligence2 is one of the growing industries which could also be taken as the example of computer generated works and there are so many other works which takes place daily without human interaction.
The above example clearly describes that the role of human in computer generated work is very remote or negligible. The absence of author and their intellectual effort cannot be proved in these works as they are being produced by machines. What can be proved is that a human has programmed a machined to do or to produce a work when a specific command is run or after a specific interval of time as in the case of satellite images they a satellite can be programmed to send a picture say in every 10 seconds or if we take example of speed detector cameras which can take a picture of a vehicle if it crosses the determined speed. In the mentioned cases though the machine can be programmed by a human but the work it produces is of its own and without human interaction. Let us find out what is the approach to computer generated work in context of India.
What are computer generated works?
Unfortunately the term computer generated has not been defined in the Indian Copyright Act, 1957 but it has been defined in the Copyright, Designs and Patents Act, 1988 of U.K. The term “computer generated” has the following meaning under Sec 178 Minor definitions; "computer-generated", in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work; now we can understand that a work would be called a computer generated work only if it lack human author completely at the time of the creation of work. Think in the way that if computer generated work would also have human intervention than there was no need to create a new category it could fall under one of the categories already created.
There is one more term that usually confuses us while thinking of computer generated work and that is computer assisted work. There is a difference between both of them. A computer assisted work is the work which is done using a computer and also have human interaction in it but in computer generated work there is no human effort or interaction with the work. For example a excel sheet created using a computer but the data has been entered through the key board by a human will be considered as a computer assisted work.
The production of computer generated works is blooming but unfortunately it has not dragged that attention of government that it should be because it is one of the most widely produced categories of work. Every second thousands of pictures are automatically captured throughout the world and in space that is being used for research and other works. They are helping us in many ways in our daily life.
Works and authors
To understand the need of copyright and the relationship between author and his work is necessary for us to get the right idea how CGW should be protected. There are some moral rights of author which should be protected for an author to get reward and motivation to work further. If they are not protected and if the author is not rewarded why will he work? There are many ways in which an author is benefitted by copyrighting his or her work. But before that the judicial system has to examine that whether the work has passed the benchmark to qualify for getting a copyright or not.
To get a copyright in the defined categories of works there are some parameters set by the system like the work should be an original work with minimum modicum of creativity and should be produced in a tangible medium are the general rules. There are different things which should be followed for different types of works. Generally the author of the work is also considered to be the owner of work unless there is an agreement. Now there could be many ways by which the ownership can be transferred legally. The author could grant exclusive rights to somebody else or he can make agreement for the publishing rights etc. The author is benefitted economically and also he gains reputation and fame whereas on the other hand society is benefitted by reading or using that work which has been created by the other thus making a balance.
Who will own computer generated works?
As we have defined what are computer generated works now the next question arises that who will be the owner of the computer generated works. Now this is an interesting question that who will be the owner or the author of computer generated works, as described above they lack human interaction. Though Indian Copyright Act doesn’t define the term “computer generated work” it specifies that who will be the author of it3. Now even though it says that the person who causes the work to be created will be the author of computer generated work but we have stated in the definition of the computer generated work that it lacks human interaction or in other words no human is directly connected in the creation of computer generated works. Who will be the author of computer generated work is also mentioned in the Copyright, Designs and Patents Act, 1988 of U.K.4 Here it is said that the person who will do the necessary arrangements for the creation of the computer generated work will be its author. Both the concepts are ambiguous as they lack proper definition. As mentioned above that the person who will do the necessary arrangements for the creation of CGW will be the owner than it is very much possible that if a user creates a document using Microsoft word than he will become its author. The same approach is taken by the Indian law.
Deciding who will be the owner of CGW is a topic of discussion and it is difficult to decide who can be termed as its author. Computer generated works may be also be defines as the output of computer programs which acts without human intervention. Computer programs can be copyrighted but when it comes to CGW it is quite difficult to decide it author as there are many views and opinions about it.
Let us see the possible options who can claim copyright in CGW.
(i) The author of the program
The first and the most competent person when it comes to claim copyright in CGW is the programmer. He is the one who write the code and design the program to give output in form of generated work. But again it will depend on the type of work that is being developed by that program. For example if I am writing this article using MS word than if this rule is applied the authorship will go to Microsoft. When applying this rule it seems that this could not be the right approach. We can consider one more
3 Sec 2 clause d sub clause (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created;
4 Sec 9 sub-section 3: In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. For example suppose a person is creating software “x” using software “y” that is already copyrighted, so the person who is the owner of the software “y” by using which software “x” is developed can claim copyright in it. If the output generated by the program contains substantial part of the program than it could be said that it is the derivative work of the program but still it cannot claim copyright in it as the derivative work is authored by the modifier.
(ii) The user of the program
Although it has been stated earlier that in CGW there is no direct connection of a human being with it but at some point it can be stated that a user may have to type something to plug in some cable etc. Like in the case of maps generated automatically a user has to type in the destination address rest all the things are done by the program itself. In the example of satellite sending images after every 10 seconds the person who sets the time interval of 10 seconds can be termed as user.
However this approach seems to be non-justified as how could be a simple person who has no relation with the program be termed as its author. Also there is no original work done by the user in this process. Also a lot of people would be claiming copyright for a single CGW then. There should be some creative effort of the user for which he or she would be rewarded.
(iii) The computer
The idea to make the computer the author of the CGW lies in the fact as most of the CGW are produces via it. So can it be termed as the author officially? We have to consider the in most of the jurisdictions the author should be a human. There should be some intellectual effort of the author while creating the work. There are so many things that computer cannot to do even though it can think creatively5. A computer cannot sue anyone for copyright infringement is one of the examples and the soul of copyright protection. If there is no need to protect the right of the author then why should be anything copyrighted. Neither does a computer need any of the benefits that are provided to the author after copyright.
(iv) The user and the programmer both
The user and the programmer can be viewed as joint authors of CGW and it also seems appealing as both the person will be rewarded by this approach. It is better to give rights to both the parties rather than giving it to a single person. No matter the idea of joint authorship seems to be appealing but it is difficult to establish a connection between the programmer and a remote user from a different end of the world as compared to what has been defined in the Copyright Act of India. There should be a joint effort to create a piece of work but in this case the user is merely doing anything.
The kind of agreement and work that is required for the joint authorship is not there when it comes to CGW. When two others write a book with an agreement of joint authorship they work together with some understanding about what they have to do. They also share responsibilities, rewards and also the damages. But in the case of CGW the programmer has no relation with the user and vise versa. Also they will not share anything nor do they know each other. So this idea just seems appealing but is difficult to imply or to practice.
(v) No one
The last and the most appropriate answer is that there should be no author of CGW and they should lie in public domain. Anyone can use CGW without infringing anyone’s right thus the society at large will also be benefited from it. We should not make anyone the author of CGW just for the sake of law. As long as there is no specific law they should lie in public domain. Also this point of view is supported by other authors too “If there is no human author of the computer-generated work, the intellectual property system has assumed no one deserves to be rewarded for it. If there is no human author of such a work, how can any human be motivated to create it? If it is not clearly necessary to grant the exclusive rights to stimulate creativity, traditional principles would seem to argue that the set of exclusive rights not be awarded to anyone”.
The idea that no one should be rewarded the authorship claim in CGW is also difficult in the case if someone adopted the CGW and did some modification and then claim copyright in it. How will we determine that what was the original material and what is the intellectual effort of the modifier? Would he be allowed to get a copyright in that work or not, there would be no criteria to test the creativity of that work.
Conclusion
We have looked at the possible options for the authorship of CGW and each one of them has its own flaws. It is already described in the Indian Copyright Act, 1957 that who will be the author for CGW but still it is ambiguous. We need to think again about it and reconsider it as it does not justify it. Also there is a broad category of CGW which cannot be fitted in that parameter. The idea of putting CGW in public domain will not only help the public at large also it will be considered a good decision while encountering such cases. But again this is my personal view and recommendations in contrast to what already has been decided.
