Published On: July 28, 2026
Authored By: Manshirat Kaur
Jai Narain Vyas University
Introduction
Generative Artificial Intelligence has been on a rapid rise in the past two years. The use of AI is now ubiquitous, spreading into every field of human work. The continuous evolution of tools such as ChatGPT, GPT-3 and DALL-E, once developed to increase work efficiency, has now begun to challenge settled legal categories. Copyright law, designed to protect the creative works of humans, is now under scrutiny. AI’s capability to generate and manipulate content raises questions about the original authorship and ownership of the content it produces, giving rise to disputes over copyright infringement. This raises the question: “Can AI be the original author?” Section 13 of the Copyright Act, 1957 grants copyright protection to “only original literary, dramatic, musical and artistic works, cinematograph films and sound recordings.”[1] Section 2(d) is central to this protection, as it defines the term “Author.”[2] This article analyzes the legal questions arising from the authorship of AI-generated content, focusing on the conflict between generative AI and existing copyright law, using a comparative method and case law, and suggesting reforms for India.
Legal Framework of Authorship in India
The Copyright Act, 1957 is the principal legislation governing copyright and authorship in India. No separate law governing generative AI has yet come into force; all related matters are governed by the Copyright Act, 1957.
Section 2(d): Definition of “Author”
Section 2(d) of the Copyright Act defines the term “Author” and identifies who may be considered one. For a literary or dramatic work, the author of the work is the author; for a musical work, the composer; for an artistic work, the artist; for a photograph, the photographer; for a cinematograph film or sound recording, the producer; and for a literary, musical or artistic work generated by a computer, the person who caused the work to be created is deemed the author.
The provision therefore centres on the “natural person” — that is, a human — as author. The Act itself does not mention AI, computers or machines as authors; even computer-generated content is deemed to have a human author, namely the person who created it.[3] Technically, then, AI cannot be an “author.”
Standard of Originality: “Skill, Labour and Creativity”
Indian courts followed the doctrine of “sweat of the brow” for a long period. Drawing on English law, the courts held that copyright law does not prevent a person from selecting useful content from an original work and modifying it. In Burlington Home Shopping v. Rajnish Chibber,[4] similar to the approach in Feist Publications, Inc. v. Rural Telephone Service Co.,[5] the Delhi High Court held that a compilation of data — such as a customer database — could attract copyright protection.
The Supreme Court in Eastern Book Company v. D.B. Modak[6] shifted from the “sweat of the brow” doctrine to the “modicum of creativity” standard followed in the United States. The Court held that a work need not be entirely new or unique to attract copyright, but some degree of creativity is required, establishing what might be called a “minimum flavour of creativity” requirement.
Later decisions following this approach denied copyright protection to mere compilations of data and held that a copyrightable work must originate from an author and not simply reproduce an existing work.[7]
The AI Question: Who Is the Author?
Copyright law protects only the “original work of an author,” yet generative AI tools such as ChatGPT, Claude and DALL-E create content based on the prompts given to them. This raises the question of who is the actual author of the generated content — the AI, the person who supplied the prompt, the programmer, or no one at all.
In India, the Copyright Act, 1957 requires a human author. As discussed above, only a “human” can be an “author” under the definition in Section 2(d).[8] In Eastern Book Co. v. D.B. Modak,[9] the Court focused on the requirement of human creativity. AI alone cannot be an “author”; content generated by a human with the assistance of generative AI is copyrightable only to the extent it reflects human creativity, skill, labour or judgement. The prevailing Indian position is, in effect, that “no one is the author” of purely AI-generated content.
In the United States, copyright cannot be obtained for content generated solely by AI without human input. This principle was applied by the U.S. Copyright Office in the Zarya of the Dawn registration decision,[10] where the Office granted protection for the text and for the selection, coordination and arrangement of the work’s elements, but declined to protect the individual AI-generated images, reasoning that works produced through a mechanical process lack the requisite human authorship. The U.S. position may thus be summarised as “the user is the author” — but only in relation to elements over which the user actually exercised creative control.
The United Kingdom stands out as an exception in granting copyright to computer-generated works. Under Section 9(3) of the Copyright, Designs and Patents Act, 1988,[11] the person who undertakes the arrangements necessary for the creation of a computer-generated work is treated as its author, extending protection to the programmer or user. The UK position, in short, is that the person making the arrangements is the author.
As matters stand, India recognises human authorship only; AI is treated merely as a tool, with copyright vesting in the human who contributed skill and creativity to the work. If the “user as author” approach were adopted, two different people using identical prompts to generate identical output could both claim authorship — an issue the courts have not yet resolved. As the law evolves, new rules addressing “authorship based on prompts” appear necessary.
Comparative Analysis
The roots of the copyright regimes in India and the UK are closely related. Copyright protection was first introduced in India in 1847 and later revised in line with the UK Copyright Act, 1911. The UK introduced new legislation in 1988, the Copyright, Designs and Patents Act.
Subject Matter and Originality
Section 2(d) of the Copyright Act, 1957[12] protects literary, artistic, dramatic and musical works in India. In Eastern Book Co. v. D.B. Modak,[13] the Court adopted the “modicum of creativity” standard, holding that some degree of human creativity is required to acquire copyright. The UK’s CDPA, 1988[14] follows a similar approach: some minimum level of creativity is required, and labour or effort invested in a work cannot, on its own, form the basis for copyright protection.
The Court of Justice of the European Union, in Infopaq International A/S v. Danske Dagblades Forening,[15] adopted the standard of the “author’s own intellectual creation,” similarly requiring an element of creativity in the work.
Ownership and Authorship
Both India and the UK treat the “author” as the “first owner” of a work, but the two jurisdictions diverge on employment-related works. Section 17(c) of the Copyright Act, 1957[16] provides that where a work is created by an employee in the course of employment, the employer is the first owner in the absence of an agreement to the contrary.
Section 11(2) of the UK CDPA, 1988[17] provides a similar rule, but the position on commissioned work differs. In India, for a commissioned photograph, the person commissioning the work is the first owner under Section 17(b).[18] In the UK, the author remains the first owner unless a contract provides otherwise.
Moral Rights
Section 57 of the Copyright Act,[19] as amended by the Copyright (Amendment) Act, 2012, provides robust moral rights, including the “right of paternity” and the “right of integrity.” The 2012 amendment expanded the scope of this provision, and these rights survive assignment of the copyright and continue after the author’s death.
The UK’s CDPA, 1988,[20] under Sections 77–85, also provides for moral rights, but subject to significant limitations:
Moral rights must be asserted (Section 78).[21]
They do not apply to computer programs (Section 80).[22]
They may be waived (Section 87).[23]
Waiver is not permitted in India, reflecting stronger author protection than in the UK.
Fair Dealing vs. Fair Use
Section 52 of the Copyright Act, 1957[24] provides for “fair dealing” for specific purposes such as research, criticism, review, news reporting and education. The scope of the education exception broadened considerably after the 2012 amendment.
The UK’s CDPA, 1988, under Sections 29–30,[25] also provides a list of fair dealing purposes, though a narrower one than India’s. In 2014, the UK added “caricature, parody and pastiche” under Section 30A.[26] India has no separate parody exception; courts instead consider such uses under Section 52(1)(a).[27]
Infringement and Remedies
On infringement and remedies, the two jurisdictions largely converge. Section 51 of the Copyright Act, 1957[28] and Section 16 of the CDPA, 1988[29] both apply the test of “copying a substantial part.”
Sections 55 and 63 of the Copyright Act, 1957[30] and Sections 96 and 107 of the CDPA, 1988[31] provide for both civil and criminal remedies in each jurisdiction, and neither provides for statutory damages. However, the UK provides a comparatively stronger remedy through an “account of profits.”
Term of Protection
For literary works: India provides life plus 60 years (Section 22 of the Copyright Act, 1957);[32] the UK provides life plus 70 years (Section 12(1) of the CDPA, 1988).[33]
For sound recordings: India provides 60 years (Section 26 of the Copyright Act, 1957);[34] the UK provides 70 years, extended following an EU directive (Section 13A of the CDPA, 1988).[35]
Challenges and Suggestions
In today’s rapidly changing digital environment, even these amended statutes face significant challenges.
Rigid List of Fair Dealing
The most significant problem is Section 52,[36] which is a closed list covering only specified purposes, leaving unresolved questions around memes, remixes, parody, post-COVID online classes, and AI training data. Courts have had to accommodate these uses under Section 52(1)(a).[37]
The US four-factor fair use test is comparatively flexible, and the UK added a parody exception in 2014 under Sections 30A and 28A of the CDPA, 1988[38] (the latter addressing temporary copies); India has adopted no equivalent.
Digital and Internet Issues
The Copyright Act, 1957 was enacted before the advent of the internet. The 2012 amendment added “communication to the public” under Section 2(ff), but the law still lacks robust safe harbour provisions, and the fair dealing exception does not adequately address internet service provider (ISP) liability.
The position in the UK is comparatively better developed: the CDPA treats internet transmission as an act of “infringement” while providing a “safe harbour” for ISPs.
Orphan Works
Where the owner of an orphan work — a book, photograph or film — cannot be traced, its use remains legally precarious. India maintains a licensing board, but the process is lengthy and cumbersome, limiting its practical use.
In the UK, a licence can be obtained from the Intellectual Property Office on the basis of a “diligent search,” keeping the process comparatively fast and efficient.
Contract Override and Moral Rights
In India, the inability to waive moral rights broadens author protection but creates friction in the film industry, where producers seek freedom to edit while directors assert moral rights.
In the UK, moral rights may be waived, which facilitates commercial dealings.
Enforcement and Damages
Copyright litigation in India tends to be protracted, and obtaining an injunction is time-consuming. There is no statutory damages regime, and courts require proof of actual damage, which can be difficult to establish. The UK likewise has no statutory damages, but its specialised IP courts allow for faster disposal of smaller claims. India’s commercial courts, by contrast, have limited specialisation in copyright matters.
Suggestions
Shift Toward Fair Use
The closed list of specific purposes under Section 52 should be converted into an open-ended list, or at minimum should adopt the US four-factor test — purpose, nature, amount and market effect. Introducing separate exceptions for parody and pastiche, along the lines of the CDPA, 1988, would support this shift. Greater clarity is also needed on the scope of education-related exceptions to explicitly include online education.
Safe Harbour and Notice-and-Takedown
India should introduce a dedicated ISP safe harbour within the Copyright Act, 1957, rather than relying solely on the Information Technology Act. A notice-and-takedown and counter-notice framework modelled on the US Digital Millennium Copyright Act, 1998 (DMCA) Section 512 would give platforms protection from liability while ensuring creators have a quicker remedy.
An Authorship Rule for AI
New rules should address AI-generated content lacking human creative input, with the person who provided the prompt treated as the author where sufficient creative contribution can be shown. The UK’s approach — treating the person making the necessary arrangements as author — offers a useful model. Greater regulatory clarity is needed in India before AI authorship disputes become more widespread.
An Orphan Works Licence
India’s lengthy process for licensing orphan works could be streamlined along the lines of a US-style model, where an applicant files an affidavit of “diligent search” and a copyright board disposes of the application within a fixed period, such as 30 days, either granting or refusing the licence. Royalties could be deposited into an escrow account, allowing the original owner to claim them if they later come forward.
Commercial Courts and Statutory Damages
Greater emphasis should be placed on establishing dedicated commercial court benches for copyright matters in the states, alongside a statutory damages range — for instance, ₹50,000 to ₹2 lakh per work, comparable in spirit to the US range of $750–$30,000. This would ease the burden on small creators of proving actual damage.
Balancing Moral Rights
A limited, specific and written waiver of moral rights could be permitted for films and commissioned work, allowing directors to retain authorship recognition while giving producers a defined right to edit.
Conclusion
AI has fundamentally altered the landscape of copyright law. Indian law recognises only human authorship, leaving no scope for machines to be treated as authors. Who, then, owns content generated by tools like ChatGPT? The law remains largely silent. The UK has taken a clearer position, treating the person making the arrangements as the author, while India has yet to adopt comparable rules. India’s copyright framework retains several gaps — the absence of an ISP safe harbour, a closed list of fair dealing purposes, and the lack of rules for AI-generated work. If the law is not updated to keep pace with technology, both creators and innovation risk being left behind. Technology will continue to evolve at speed; the law must adapt to keep up.
References
[1] The Copyright Act, 1957, § 13, No. 14, Acts of Parliament, 1957 (India).
[2] The Copyright Act, 1957, § 2(d), No. 14, Acts of Parliament, 1957 (India).
[3] The Copyright Act, 1957, § 2(d), No. 14, Acts of Parliament, 1957 (India).
[4] Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber, 1995 PTC (15) 278 (Del) (India).
[5] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
[6] Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1; AIR 2008 SC 809 (India).
[7] Suchi Mehta, Analysis of Doctrines: “Sweat of the Brow” & “Modicum of Creativity” vis-Ã -vis Originality in Copyright Law, Indialaw.in (June 21, 2026).
[8] The Copyright Act, 1957, § 2(d), supra note 2.
[9] Eastern Book Company v. D.B. Modak, supra note 6.
[10] U.S. Copyright Office, Re: Zarya of the Dawn (Registration No. VAu001480196), letter decision (Feb. 21, 2023).
[11] Copyright, Designs and Patents Act 1988, c. 48, § 9(3) (U.K.).
[12] The Copyright Act, 1957, § 2(d), supra note 2.
[13] Eastern Book Company v. D.B. Modak, supra note 6.
[14] Copyright, Designs and Patents Act 1988, c. 48 (U.K.), supra note 11.
[15] Case C-5/08, Infopaq Int’l A/S v. Danske Dagblades Forening, 2009 E.C.R. I-6569.
[16] The Copyright Act, 1957, § 17(c), No. 14, Acts of Parliament, 1957 (India).
[17] Copyright, Designs and Patents Act 1988, c. 48, § 11(2) (U.K.).
[18] The Copyright Act, 1957, § 17(b), supra note 16.
[19] The Copyright Act, 1957, § 57 (India), as amended by the Copyright (Amendment) Act, 2012.
[20] Copyright, Designs and Patents Act 1988, c. 48, §§ 77–85 (U.K.).
[21] Id. § 78.
[22] Id. § 80.
[23] Id. § 87.
[24] The Copyright Act, 1957, § 52, No. 14, Acts of Parliament, 1957 (India).
[25] Copyright, Designs and Patents Act 1988, c. 48, §§ 29–30 (U.K.).
[26] Id. § 30A.
[27] The Copyright Act, 1957, § 52(1)(a), supra note 24.
[28] The Copyright Act, 1957, § 51, supra note 24.
[29] Copyright, Designs and Patents Act 1988, c. 48, § 16 (U.K.).
[30] The Copyright Act, 1957, §§ 55, 63, supra note 24.
[31] Copyright, Designs and Patents Act 1988, c. 48, §§ 96, 107 (U.K.).
[32] The Copyright Act, 1957, § 22, supra note 24.
[33] Copyright, Designs and Patents Act 1988, c. 48, § 12(1) (U.K.).
[34] The Copyright Act, 1957, § 26, supra note 24.
[35] Copyright, Designs and Patents Act 1988, c. 48, § 13A (U.K.).
[36] The Copyright Act, 1957, § 52, supra note 24.
[37] The Copyright Act, 1957, § 52(1)(a), supra note 24.
[38] Copyright, Designs and Patents Act 1988, c. 48, §§ 30A, 28A (U.K.).
