Introduction
Artificial Intelligence has quietly unsettled one of the most human-centric areas of law — copyright.
For decades, the idea was simple:
creativity originates from the human mind, and the law protects that expression.
But AI challenges that assumption.
If a machine can generate art, then a difficult question follows:
Can copyright exist without a human creator?
This question came to the forefront in Stephen Thaler v. Perlmutter in the United States, and has now echoed in India through Stephen Thaler v. Union of India. The outcomes in both contexts point in a similar direction, but the implications are far more complex than they appear.
The Thaler Experiment: When AI Was Claimed as the Author
Stephen Thaler created an AI system called the Creativity Machine, which generated an artwork titled “A Recent Entrance to Paradise.”
Instead of claiming authorship himself, Thaler argued that the AI was the author and that he, as the owner of the system, should hold the copyright.
The U.S. Copyright Office refused registration. The courts upheld that refusal.
The reasoning was direct:
A work generated autonomously by a machine, without human involvement, cannot qualify for copyright protection.
The Court grounded this conclusion in a long-standing understanding of copyright — that authorship is inherently human.
It also relied on earlier precedents, which treated creativity as an intellectual exercise rooted in human personality and judgment. In essence, the law was not rejecting AI; it was rejecting the absence of human involvement.
A Case Defined by Its Own Framing
What makes Thaler v. Perlmutter particularly instructive is that the outcome was shaped as much by legal strategy as by legal principle.
Thaler consistently maintained that the work was created entirely by the machine, leaving no room for human contribution.
At a later stage, he attempted to argue that he had guided the AI, but the court refused to consider this shift, noting that it contradicted the original record.
This effectively locked the court into a narrow question:
If there is no human author at all, can copyright subsist?
The answer, unsurprisingly, was no.
The Indian Context: Stephen Thaler v. Union of India
The issue has now surfaced in India in Stephen Thaler v. Union of India, where similar arguments around AI authorship and copyrightability have been raised.
While Indian jurisprudence is still evolving on this point, the statutory framework offers some clarity.
Under the Copyright Act, 1957, authorship in computer-generated works is attributed not to the machine, but to “the person who causes the work to be created.”
This provision reflects a deliberate legislative choice:
even in technologically mediated creation, the law anchors authorship in human agency.
This aligns with the broader reasoning seen in Thaler v. Perlmutter, where the absence of human authorship proved decisive.
A Constitutional Lens: Creativity, Personality, and Rights
From an Indian constitutional perspective, this debate is not merely technical.
Copyright, though statutory, is deeply connected with Article 21 — the right to life and personal liberty, which has been interpreted to include aspects of dignity, autonomy, and intellectual expression.
Creativity is often viewed as an extension of personality.
Authorship is not just about economic rights; it is about recognition of human intellectual effort.
Allowing a machine to be treated as an author raises uncomfortable questions:
- Can non-human entities hold rights?
- Can creativity exist without human intention?
- What happens to the moral rights of authors if authorship itself becomes non-human?
Courts, both in India and the U.S., appear cautious about extending legal personality beyond humans in this context.
The Overlooked Layer: Data and Privacy Concerns
What the Thaler cases do not directly address, but inevitably implicate, is the role of data.
AI-generated works are not created in a vacuum. They are trained on massive datasets, often containing:
- copyrighted material
- personal data
- creative works of countless individuals
From a data protection standpoint, particularly under emerging frameworks like India’s Digital Personal Data Protection Act, 2023, this raises serious concerns about:
- consent
- purpose limitation
- control over data usage
If AI outputs are denied copyright due to a lack of human authorship, yet are built upon human-created data, the legal asymmetry becomes apparent.
The system depends on human creativity, but the output is treated as legally detached from it.
Where the Law Feels Incomplete
The courts in Thaler were correct in one sense:
Copyright cannot exist without human authorship.
But the difficulty lies in how narrowly “human involvement” is sometimes understood.
In practice, AI-generated art is rarely fully autonomous.
There is always some level of human input — whether in prompting, selecting, refining, or curating.
The law, however, is currently equipped to deal only with extremes:
- fully human works
- fully machine-generated works
Most real-world cases fall somewhere in between.
Between Tool and Creator
From both a legal and technological perspective, the current framework feels transitional.
It is right to reject the idea of AI as an independent legal author.
But it is equally limiting to treat AI as nothing more than a passive tool.
AI today operates in a space that resembles collaboration more than assistance.
The real challenge is not recognising AI as a creator, but recognising the nature and degree of human contribution within AI-assisted creation.
Until the law develops a more nuanced approach, cases like Thaler v. Perlmutter and Stephen Thaler v. Union of India will continue to resolve only the easiest version of the problem — while leaving the harder questions unanswered.
Conclusion
The Thaler cases establish an important boundary:
Copyright remains a human-centric right.
But they also expose a deeper tension between law and technology.
AI is not waiting for legal clarity.
It is already reshaping how creativity works.
The question is no longer whether AI can create.
The real question is:
How much of that creation must be human for the law to recognize it?
Law has always evolved with technology — from photography to software to digital media.
AI is simply the next frontier.
But this time, the challenge is not just about new tools.
It is about redefining what it means to create.
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