Copyright Office: AI System Cannot Be an “Author”

Issue 1 (Originality of work): Whether the artistic work titled “A Recent Entrance to Paradise” satisfies the requirement of originality under Section 13, Copyright Act?

The Copyright Office noted that Section 13(1)(a), Copyright Act makes “original” an express condition for the subsistence of copyright in an artistic work, but the Act does not define the term “original”. The Copyright Office therefore considered the applicable jurisprudence to determine the legal content of the expression “original”, including whether “original” requires novelty or inventiveness, the degree of creativity required, and the distinction between independently generated expression and an output that is copied, trivial or mechanical.

Having identified the applicable legal standard, the Copyright Office considered its application to “A Recent Entrance to Paradise”. The Copyright Office considered the source and nature of the visual and linguistic inputs, the functioning of the DABUS system, the respective roles of Dr Stephen L. Thaler and DABUS, the process through which the final composition emerged, and whether the work reproduced any identifiable pre-existing work or possessed sufficient independent expressive character to satisfy the threshold of “originality” under Section 13.

The Copyright Office referred to University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 Ch. 601, where the expression “original” was explained as relating to the expression of thought and requiring that the work originate from the author rather than being copied from another work.

The Copyright Office also referred to Eastern Book Co., where the Supreme Court held that the creativity standard does not require something to be novel or non-obvious, but requires a “minimal degree of creativity”.

On this basis, the Copyright Office stated that, under Section 13, the inquiry into “originality” is confined to the expressive form of the work rather than the underlying idea. Independent creation and absence of copying were considered necessary, but not sufficient by themselves. The work must also display at least a minimal degree of non-trivial skill, judgment and creative effort. The Copyright Office further stated that the inquiry does not require assessment of artistic merit, aesthetic quality, novelty or inventive ingenuity.

Applying the above standard, the Copyright Office noted that “A Recent Entrance to Paradise” contains a particular arrangement of visual forms, colours, tonal variations, spatial relationships and compositional elements. According to the technical explanation placed on record, the final configuration emerged through DABUS’s processes of association formation, perturbation, monitoring, stabilisation and output generation. The Copyright Office also noted that, even according to Dr Thaler, the resulting image was not supplied to DABUS in its final form and was not shown to be the predetermined or inevitable reproduction of any particular item in the training material.

The Copyright Office then considered the relationship between Sections 13 and 2(d)(vi) in the case of a computer-generated work. The Copyright Office stated that Section 13 examines whether the resulting work possesses independently generated, non-trivial expressive character, while Section 2(d)(vi) identifies the legally recognised person to whom authorship of that work is attributed. The Copyright Office observed that it would be incorrect to treat the computer system as the legal bearer of creativity or to insist that the person identified under Section 2(d)(vi) must have manually selected every expressive element of the final output.

The Copyright Office further stated that the generative process must be examined as a whole. Where a legally recognised person supplies and curates the relevant inputs, configures and initiates a non-trivial generative process, and thereby causes an independently generated expressive work to come into existence, the absence of real-time human intervention at the final computational stage does not, by itself, defeat “originality”. The legal attribution of authorship nevertheless remains governed by Section 2(d)(vi).

On the basis of the technical explanation and material placed on record, and for the limited purpose of the present registration proceedings, the Copyright Office was satisfied that the resulting composition was not predetermined in its final form and was not shown to reproduce any identified pre-existing work. The Copyright Office found that the particular visual composition contained at least the “minimal degree of expressive creativity” required by Eastern Book Co.

The Copyright Office accordingly held that the work satisfied the requirement of “originality” under Section 13, Copyright Act. The Copyright Office further stated that the fact that the work was generated through algorithmic or computational processes could not, by itself, render the resulting expression unoriginal. Statistical processing and pattern recognition describe aspects of the mechanism by which the output was produced; they do not necessarily determine whether the resulting expression is copied, commonplace or devoid of creative character.

The Copyright Office also noted that there was no clear material on record to prove that the work was copied from some specific source or some other work. The finding was expressly confined to the material placed in the present registration proceedings. Based on the technical account and materials then disclosed, the particular arrangement of visual elements in the work was not shown to be a reproduction of an identified earlier work and possessed sufficient independently generated expressive character to cross the limited threshold under Section 13.

The Copyright Office therefore answered the objection regarding creativity raised for “originality” in favour of the applicant. The application was thereafter to be considered separately under Sections 2(d)(vi), 17 and 45 of the Act.

Issue 2 (Authorship): Who, on the facts disclosed by the Applicant, is “the person who causes the work to be created” within the meaning of Section 2(d)(vi)?

At the outset, the Copyright Office examined the statutory language of Section 2(d)(vi), under which, in relation to a computer-generated literary, dramatic, musical or artistic work, the author is “the person who causes the work to be created”. The Copyright Office held that Section 2(d) is not merely a definition of “author”, but a statutory scheme allocating authorship for different categories of works. Under Section 2(d)(vi), the legislature did not identify the computer, software or generative system as the author; it identified the “person who causes the work to be created”.

The Copyright Office explained that the statutory scheme does not attribute authorship to every person or instrument involved in bringing a work into existence, or to the participant closest to the final output. The focus remains on the legally recognised person who “caused the work to be created”. The Copyright Office therefore distinguished the technological mechanism that generates the output from the person to whom authorship is legally attributed.

The Copyright Office rejected the applicant’s submission that the expression “causes the work to be created” requires an inquiry into the device or computational process that generated the final expression. The Copyright Office held that Section 2(d)(vi) requires identification of the person who, in law and on the facts, caused the work to be created. The inquiry is therefore one of legally attributable causation, rather than merely the last mechanical or computational act.

The Copyright Office further held that the governing test under Section 2(d)(vi) is the “person who causes the work to be created”, rather than the “entity that immediately generates the output”. The Copyright Office considered the expressions “cause” and “created” in their ordinary meaning and concluded that the statutory phrase refers to the person who brings about, or is responsible for, the coming into existence of the work. The Copyright Office also emphasised that the inquiry must remain work-specific and cannot be satisfied merely by identifying someone who owns, designs or develops the computer system.

“Effective Cause” and “Mastermind” Test

The Copyright Office found persuasive support in Aalmuhammed v. Lee⁶, while expressly noting that the decision arose under the United States Copyright Act and was not binding or treated as supplying the governing legal standard. The Copyright Office referred to the decision only for the distinction between the instrument through which a work is produced and the person to whom its creation is legally attributable.

The Copyright Office noted that Aalmuhammed described the relevant person as the “effective cause” or “inventive or mastermind” to whom the work ultimately owes its origin. The Copyright Office considered this reasoning consistent with Section 2(d)(vi), while making clear that expressions such as “creative control”, “effective cause” and “principal architect” are only descriptive aids and are not additional statutory requirements or substitutes for the statutory words. The controlling test remains who is the person who “caused the work to be created”.

Application to DABUS and Dr Thaler

Applying the test to the disclosed facts, the Copyright Office noted that, according to the applicant’s own account, Dr Thaler conceived and created DABUS, configured its operation, supplied the visual inputs comprising photographs taken by him, curated the linguistic inputs, supplied textual descriptions linking the visual and linguistic material, and initiated the process through which the particular work came into existence. No other natural or juristic person was identified as having undertaken those acts.

The Copyright Office therefore held that Dr Thaler’s role had an “immediate nexus” with the particular work and that Dr Thaler was the “person who caused this particular work to be created” within Section 2(d)(vi), even though DABUS performed the immediate computational generation of the final visual form.

The Copyright Office rejected the argument that DABUS’s autonomous operation made DABUS the author. The Copyright Office noted that DABUS’s role was at the intermediate stage and that DABUS was not the “mastermind”. The Copyright Office further held that autonomy in execution is not synonymous with conception of a work. DABUS operated within the architecture, objectives, parameters, training methodology and operational rules established by Dr Thaler.

The Copyright Office also recorded that DABUS did not design its own architecture, formulate its own operational purpose, select its own training methodology, independently supply the inputs used for the particular work, or decide of its own legal volition that the work should be created and published. The Copyright Office therefore held that DABUS’s autonomous functioning explained the manner in which the final output was generated, but did not make DABUS a “person” or confer upon DABUS the statutory status of author.

DABUS Could Not Be Treated as a Juristic Person

The Copyright Office noted that the applicant had initially advanced an analogy between DABUS and a company or deity but later expressly accepted that DABUS was not claimed to be a juristic person under Indian law and was not capable of owning property, enforcing rights, assigning copyright or bearing legal obligations. The Copyright Office held that nothing in the Copyright Act permits a machine lacking legal personality to be entered as the statutory author while the legal consequences ordinarily attached to authorship are vested in another person.

The Copyright Office also rejected the applicant’s reliance on Section 2(d)(v), under which a producer of a cinematograph film may be a company. The Copyright Office held that Section 2(d) is a legislative allocation of authorship for distinct classes of works and that the legislative rationale applicable to cinematograph films under Section 2(d)(v) cannot be imported into Section 2(d)(vi).

Meaning of “Person” under Section 2(d)(vi)

The Copyright Office considered the applicant’s submission that the expression “person” should have the same meaning throughout the Copyright Act. The Copyright Office accepted the general principle that the same expression ordinarily receives a consistent meaning within the same statute, but held that, in the present context, “person” must bear its legal meaning. The Copyright Office stated that the Act contemplates a legally recognised person, whether a natural person or, where permitted by statute, a juristic person such as a company.

The Copyright Office further held that the statutory expression “the person who causes the work to be created” must be construed as a “composite and indivisible statutory phrase”. The inquiry is not satisfied merely by locating a human being somewhere in the causal history of the work. What must be identified is the person who, having regard to the making of the particular work, exercised the relevant creative control and made sufficiently proximate and material arrangements so that the work can fairly be regarded as having been caused by that person.

Once the Copyright Office found that DABUS did not cause the particular work to be created within Section 2(d)(vi), the further question whether DABUS is a “person” became academic and did not require determination. In any event, the Copyright Office found that DABUS did not satisfy the legal attributes of personhood under the Copyright Act.

The Copyright Office ultimately held that DABUS cannot be entered as author under Section 2(d)(vi).

Issue 3: Whether the claim of ownership made by Dr Stephen L. Thaler is consistent with the authorship particulars furnished in the application and the scheme of Sections 17—19?

The Copyright Office considered whether Dr Stephen L. Thaler had established a legally cognisable basis or title chain for claiming first ownership of copyright in “A Recent Entrance to Paradise”, despite DABUS having been named as the author in the application.

The Copyright Office noted that Section 17 lays down the general rule that “the author of a work shall be the first owner of the copyright therein”, subject to the exceptions specified in the Act. Sections 18 and 19 provide for assignment of copyright and prescribe the requirements for a valid assignment. The Copyright Office therefore treated Sections 17, 18 and 19 as a continuous statutory scheme governing the movement of copyright from authorship to ownership.

The Copyright Office referred to Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn., (1977) 2 SCC 820, where the Supreme Court recognised the assignability of existing and future copyright subject to Section 18 and held that Section 19 requires an assignment to be in writing and signed by the assignor or the duly authorised agent.

The Copyright Office further stated that Section 19 is not merely evidentiary. It expressly requires a written assignment signed by the assignor or duly authorised agent and requires the instrument to identify the work and specify the rights assigned, duration, territorial extent, royalty and other consideration. The statutory defaults in Section 19(5) and (6) operate only where a valid assignment otherwise exists and cannot cure the absence of a written instrument or a legally competent assignor.

Applying this framework to the application as presented, the Copyright Office held that the claim that DABUS was the author while Dr Thaler was the owner could not be reconciled with Sections 17—19. If DABUS were treated as the author, the applicant would have to establish either a statutory exception under Section 17 vesting first ownership directly in Dr Thaler or a valid transfer under Sections 18 and 19. The Copyright Office found that neither had been established.

The Copyright Office also held that Dr Thaler’s ownership of the DABUS system did not, by itself, create a general statutory entitlement to copyright in every output generated through the system. The Copyright Office further noted that DABUS could not execute an assignment because, as admitted, DABUS lacked legal personality and contractual capacity.

The Copyright Office then made an important qualification. The conclusion above applied to the case as pleaded in the application. The Copyright Office had independently found under Section 2(d)(vi) that, on the applicant’s own factual account, Dr Thaler was the person who caused this particular work to be created. If Dr Thaler were correctly identified as the statutory author, Section 17 would ordinarily make him the first owner, subject to any applicable statutory exception or agreement to the contrary.

Accordingly, the Copyright Office identified the substantive defect not as an absolute incapacity on Dr Thaler’s part to possess title, but as the legally inconsistent authorship and ownership particulars in the application, namely, DABUS as author and Dr Thaler as owner, without any statutory route of vesting or transfer. The Copyright Office held that such particulars could not be entered in the register.

The Copyright Office further stated that the absence of a rival claimant did not justify entry of legally inconsistent particulars. Registration could not be granted merely because no person presently disputed ownership; the applicant had to establish that the proposed author and owner particulars were consistent with the Act.

The Copyright Office accordingly held that the ownership claim could not be accepted on the basis on which it was presented, namely, DABUS as author and Dr Thaler as owner. The Copyright Office clarified that this did not mean Dr Thaler was incapable of being the first owner if correctly identified as the author under Section 2(d)(vi). It meant that the authorship and ownership particulars contained in the application, as maintained, could not lawfully be entered in the register.

The applicant’s submission that no assignment was necessary was therefore rejected in the form in which the claim was presented. The Copyright Office stated that, if DABUS were the author and therefore the putative first owner under Section 17, DABUS would have to possess legal capacity to hold and transfer copyright. Since the applicant conceded that DABUS possessed no such capacity, copyright could not pass from DABUS to Dr Thaler. Conversely, if copyright were claimed to vest directly in Dr Thaler, the applicant would have to identify and satisfy a statutory provision displacing the general rule in Section 17. No such provision had been shown.

The Copyright Office therefore maintained the objections under Sections 17—19 against the particulars as presently framed, but not against Dr Thaler’s legal capacity to be first owner if Dr Thaler were correctly identified as the statutory author. Since the Copyright Office had found Dr Thaler to be “the person who caused the particular work to be created”, no assignment from DABUS would arise if Dr Thaler were correctly identified as the author.

The Copyright Office also noted the public-interest function of the Register of Copyrights. The register is intended to provide legal certainty regarding the identity of the author, the first owner and, where different, the chain through which title lawfully passed from one to the other. The Copyright Office considered Sections 17, 18 and 19 to be provisions guiding transparent and traceable ownership, requiring a clear and legally sustainable connection between the recorded author, first owner and subsequent assignee.

The Copyright Office ultimately concluded that the applicant had failed to establish a legally sustainable basis for claiming first or derivative ownership of the copyright in the work.

Issue 4: Whether DABUS may be referred to as the technological generator without being recorded as author?

The applicant alternatively submitted that, even if DABUS were not recognised as the author, Dr Stephen L. Thaler could be recorded as the author under Section 2(d)(vi), with a suitable remark in the register or certificate of registration stating that the work was generated by DABUS. The applicant submitted that such a course was within the Copyright Office’s discretion, would serve transparency and full disclosure, and would accurately reflect the factual provenance of the work. The Copyright Office did not accept this submission.

The Copyright Office noted that the verified Statement of Particulars continued to identify DABUS as the author and Dr Thaler as the owner. No amended Form XIV or Statement of Particulars had been filed identifying Dr Thaler unconditionally as author. The applicant had also not made a separate and properly formulated request specifying the proposed entry in the remarks column and the statutory basis for such entry.

The Copyright Office further noted that the applicant’s alternative submission remained conditional. The applicant had not accepted Dr Thaler’s statutory authorship independently of the requirement that DABUS should also receive official recognition as the technological generator. The Copyright Office therefore held that the conditional submission could not be converted into an unconditional amendment of the verified particulars.

The Copyright Office distinguished between two questions. The first was the identity of the statutory author under Section 2(d)(vi), which arose from the existing application and had already been determined. The second was whether, after the statutory author was correctly identified, the register could additionally contain a legally neutral remark concerning the technological process through which the work was generated. The Copyright Office stated that the latter question did not require final determination in the absence of corrected particulars and a specific, duly formulated request.

The Copyright Office noted that Form XIII contains a column for “Remarks, if any”, but held that the existence of the column did not require the Copyright Office to formulate a remark on behalf of the applicant or to record every factual circumstance concerning creation of a work. The remarks column could not be used to confer, directly or indirectly, authorship, ownership, legal personality or any other statutory status upon an artificial intelligence system.

The Copyright Office further noted that the applicant had not submitted a separate request confined to a legally neutral statement of technological provenance. Accordingly, the Copyright Office was not required, in the present proceeding, to decide in the abstract whether a differently framed and legally neutral reference to DABUS could be entered in the remarks column.

The Copyright Office nevertheless left the possibility open. If the applicant wished to seek an entry identifying DABUS solely as the technological system through which the work was generated, without attributing authorship, ownership or legal personality to DABUS, the applicant could make an appropriate application or request in accordance with the Copyright Act and the Copyright Rules. The Copyright Office expressly left the maintainability and merits of any such future request open and stated that nothing in the order should be construed either as recognising a right to such entry or as foreclosing consideration of a properly formulated request.

The Copyright Office therefore held that the conditional alternative submission did not cure the verified particulars, which continued to identify DABUS as author. Nor did the submission require determination of an independent question concerning technological provenance that had not been presented through corrected particulars or a separate request.

The Copyright Office also clarified that the present proceedings did not require determination of whether every use of artificial intelligence must, may or may not be descriptively disclosed in the register. The Copyright Office observed that such a broader administrative question might require a uniform policy or amendment of the prescribed forms and could not be conclusively settled through the facts of one application.

The applicant’s reliance on transparency and full disclosure was therefore not sufficient to override the statutory framework. The Copyright Office stated that the register must record what the Copyright Act requires, rather than what an applicant considers desirable or more informative.

Finally, the Copyright Office held that the Registrar cannot suo motu make additions or deletions to an existing application. The Registrar may identify a defect and provide an opportunity to correct it, but cannot unilaterally substitute a different author, reconstruct the asserted basis of title or grant an application on a case that the applicant has expressly declined to adopt. Entering Dr Thaler as author and DABUS as the system that created the work would, according to the Copyright Office, amount to allowing a materially different application on the applicant’s behalf.

Accordingly, the Copyright Office concluded that no case had been made out for making an additional notation recognising DABUS as the generator of the artwork in the present proceedings. Importantly, this does not amount to a final rejection of every possible neutral reference to DABUS as a technological system; the Copyright Office expressly left a properly formulated future request open.