By Kaushalya Wickramanayake
Brief Context of Artificial Intelligence
Artificial Intelligence (AI) has evolved from sci-fi fantasy to modern technology in a blink of an eye. In today’s world, Apple Siri is ready to engage in conversation whenever someone is feeling bored, Google Assistant provides recommendations for the best stores to purchase favorite dresses based on browsing history and preferences, Facebook suggests travel destinations by analyzing uploaded photos and locations and ChatGPT can literally assist you with any question you have and is a Google on steroids!
These phenomena, driven entirely by AI rather than human intervention, highlight the undeniable presence and ubiquitous influence of AI in our daily lives. In the next decade AI is expected to be a trillion-dollar industry steering in what is commonly referred to as “Industrial Revolution 4.0” as highlighted by the World Economic Forum.
AI involves computers or robots performing tasks that require human-like intelligence, such as reasoning and learning. Since the 1940s, digital computers have excelled at complex tasks such as chess and mathematical proofs. While AI has not reached the full flexibility of human intelligence, it has achieved expert-level performance in areas like medical diagnosis, search engines, voice recognition, and chatbots. Its most recent innovation, Generative AI, has ushered in a completely new dimension in the field of AI altogether, where AI is now able to be used for a multitude of tasks which were not anticipated before.
As AI technology advances, its role in creating aesthetic works with minimal human intervention raises questions about authorship and ownership in the field of intellectual property. AI systems, especially ones using Generative AI, are now capable of generating works independently, prompting concerns over whether machines should receive the same rights as human creators. For example, Midjourney, based on the Stable Diffusion AI model, is a text-driven image generation tool which can, with a simple textual prompt, generate the corresponding image in approximately one minute.
Just this year, in 2024, Rie Kudan, the winner of a Japanese literary prize explained that she used ChatGPT to write parts of her novel. X’s (previously Twitter) Grok chatbot now lets you create images from text prompts and publish them on X. These instances prove that AI can perhaps meet the standards of human creators in creating aesthetic works or even do better in certain instances, but whether such works can attract copyright protection and the extent to which such protection can be exercised remains unsettled in law. This issue has thus gained importance due to the increasing use of AI-generated works, including in professional contexts, making the debate over intellectual property rights more pressing and is worth exploring.
Copyright Protection of AI-Generated Works
The law of copyright has been in existence at least the 16th century in both civil and common law jurisdictions. Civil law in the French jurisdiction emphasizes author’s personality while common law, as illustrated in UK law, focuses on the protection of the work itself and rewards for labor. The core intention of copyright is to safeguard the intellectual efforts of the creator and prevent third parties from exploiting works without fair compensation to the original creator. Furthermore, the utilitarian approach supports granting protection to works that offer the greatest public benefit, incentivizing innovation through limited monopolies that are balanced by constraints on scope and duration.
When traditional copyright theories are applied to AI-generated works, it could be suggested that AI-generated works should be excluded from copyright protection as copyright should reward human efforts and personal labor, and also because AI-generated works lack “personal expression” and a human touch. However, the incentive theory, highlighted in Sony Corp. v. Universal City Studios, argues that copyright aims to advance public benefit and creativity rather than merely protect human labor or personality. According to this theory therefore, AI-generated works may be eligible for copyright protection as they promote innovation and the development of useful arts.
AI and Sri Lankan Law of Copyright
In Sri Lanka, intellectual property law is governed by the Intellectual Property Act No. 36 of 2003, which replaced the Code of Intellectual Property Act No. 52 of 1979. The Act aims to reorganize the registration, control, and administration of intellectual property, including copyright. It protects the rights of authors over their literary, artistic, and scientific creations, ensuring that these original works are legally protected. Section 6 of the Act specifies that only original works which are created by an author, i.e., not copied from existing works, are entitled for protection. This approach to originality is based on principles of English law and European Union law, emphasizing the importance of intellectual creation and the uniqueness of the expression.
The Act categorizes copyright into economic and moral rights. Economic rights allow the owner to benefit financially from their work, while moral rights protect the author’s honor and reputation. Moral rights are of concern here as these rights enable authors to have their names or pseudonyms attributed to their works and to object to any modifications or uses that could harm their reputation. Therefore, these rights are meant and applicable specifically for human creators.
Copyright protection in Sri Lanka lasts for the lifetime of the author and another seventy years after the author’s death, which indicates that only human authors can hold such rights. Essentially therefore, since machines and AI lack legal personality in Sri Lanka, AI-generated works cannot be afforded the same protection. Consequently, Sri Lanka has not yet updated its laws to accommodate advances in AI technology. This is currently a discussion being had all around the world, and we will hopefully expect regulation in this arena pretty soon.
AI and Neighboring Rights
In order for AI-generated works to come a reality, multiple parties are involved, all the way from software programmers to designers to end users. Therefore, certain academics have considered possibility of conferring different rights based on the relative contributions each party makes. Copyright law already makes provision for this concept under “neighboring rights” also known as “related rights”.
As per the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) neighboring rights are designed to protect those who contribute to the creation and dissemination of works, including through creative, technical, or organizational efforts. Currently, these rights are categorized into three groups to recognize the efforts of performing artists, producers of sound recordings, and broadcasting organizations. However, these rights have not yet been adopted for stakeholders of AI-generated works.
In the context of AI-generated works, the AI algorithm is initially programmed by a programmer, while the final work is created under the authority of the user. Post-programming, the data and information produced by the AI are generated by the users who operate the AI after purchasing it. As users create numerous works, the final output of the AI reflects its learning, which is influenced by the data and information provided by different users.
The purpose of neighboring or related rights is to safeguard those who help bring works to the public and facilitate further productions. However, there is no statutory mechanism for recognition of neighboring rights for AI-generated works, in Sri Lanka or elsewhere. Consequently, until statutory reforms are implemented, it can be argued that Sri Lankan courts could potentially extend protection under neighboring rights to relevant stakeholders including programmers and users of the AI, if they are deemed to have contributed to the creation of AI-generated works.
Reforming the Sri Lankan Legal Framework
Due to the current lack of regulation in AI in Sri Lanka and across the world, it is crucial to draft and implement laws to address the challenges posed to intellectual property by rapidly advancing AI technologies, which may soon exhibit human-like reasoning abilities. Inspection of various legal frameworks reveals that granting of legal personality to AI or machines is impractical, as it differs significantly from the legal status of a company. However, recognizing joint authorship rights may be a more suitable approach, where authorship rights could be granted to both programmers and users proportionally.
In Sri Lanka, the government is in the process of addressing this shift by forming a National AI Strategy for 2024-2028, investing LKR 1.5 billion, and establishing a National AI Centre. Despite improvements in AI readiness, current challenges of Sri Lanka include data infrastructure, human capital, and technology maturity.
In conclusion, Sri Lanka is in need of modernizing its copyright laws to address the complications of AI-generated works and authorship rights. As AI technologies evolve faster, the existing legal framework must adapt to recognize the contributions of both programmers, users as well as the AI in creating AI-generated content. Implementation of a model of joint authorship or similar frameworks could provide a balanced approach, ensuring that all parties involved receive appropriate recognition and protection. By proactively updating its intellectual property laws, Sri Lanka can better align with the proposed global standards and foster innovation in the rapidly advancing field of AI.
Kaushalya Wickramanayake is an Attorney-at-Law and a legal practitioner in civil litigation. She holds a Master of Laws from University of the West of England, UK specialising in commercial law, and a Bachelor of Laws degree from University of Jaffna. She is a tutor at BCAS Campus where she conducts lectures for students following the LL.B. degree offered by Oxford Brookes University, UK. She also conducts private classes for law students of Sri Lanka Law College.
Factum is an Asia-Pacific focused think tank on International Relations, Tech Cooperation, Strategic Communications, and Climate Outreach accessible via www.factum.lk.
The views expressed here are the author’s own and do not necessarily reflect the organization’s.
