­As much as we may boast over our ability to clearly communicate a message by way of expressing it in terms of concrete professional language, we can’t help but secretly admire the astounding communicative powers that are hidden in the usage of a simple emoji. A simple emoji, being a graphical representation of a human face or an object, expresses ideas and emotions which sometimes a bunch of words may fail to do.

Rarely we’ll come across a netizen ignorant of the meaning and usage of emojis, rendering the need to define it practically unnecessary. Still, for the uninitiated, emojis can be understood as small text-sized graphical icons, often representing human faces or daily life utilities, which are often used by people in the course of their regular online communications. Almost every electronic and instant messaging service and social media platform today has adopted the usage of emojis into their platforms.

Originated rather irregularly, and preceded by emoticons, emojis have now been standardised by UNICODE – UNICODE now lists over two thousand emojis along with a unique number, a black and white shape outline, and a short description assigned to each of them. These UNICODE defined emojis, around two thousand in number, are accepted as rather universal emojis, and generally are used across platforms and services. However, there are some services/platforms which have gone a step ahead to create their own set of emojis which do function on their platform only, and generally are shown as a blank square when viewed/used on other platforms/services. Such emojis are not UNICODE defined and are commonly known as proprietary emojis.

Emojis and IP Protection

When it comes to IP protection, emojis need to considered separately for each of the potential IP protection they can afford to claim. Considering protection under the patent and design regimes, emojis clearly stand a very weak case. Under trademark system, emojis do present a somewhat reasonable case when they are used to represent a brand. However, even when they are used to represent a brand or corporation, they are often not capable of protection under the trademark protection simply because of two reasons – either they’re not distinguishable enough, or they are too descriptive to be trademarkable. However, emojis do present a strong case for protection under the copyright law. Emojis are works of authorship, and can be categorised as original artistic works, and hence are capable of claiming protection under the copyright law.

There exist, however, certain legal loopholes, or rather obstacles, to be more precise, which can obstruct the copyright claim of an emoji. The first and foremost possible ground for such rejection is failure of the emojis to exceed the threshold of creativity required for copyright protection. Emojis are often too simple, and lack significant creativity – which may result in authorities denying copyright protection to emojis.

The second possible reason can be the merger doctrine. The merger doctrine, simply understood, is a principle of copyright law which denies copyright protection to expressions when there are only one or limited way to express an idea. This is so because in such circumstances, the expression is said to have been ‘merged’ with that particular idea and is difficult to separate in the sense that one can’t express that idea without resorting to that particular expression. The limited possibilities in the design of emojis renders it vulnerable to the application of the merger doctrine.

Another possible and predominant reason can be the fair use doctrine. Emojis are primarily used in non-commercial private communications and hence are pretty much under the scope of fair use exception under the copyright law. Also, as rightly observed, courts often may not want to extend the reach of copyright law to such depth so as to affect how human interact and communicate among themselves in private.

IP protection in AI-generated emojis

With rapid advancements in technology in the recent years, we now have artificial intelligence driven emoji generators – AImoji, for example. Things start getting complicated here – we’re still in an era where the copyrightability of human generated emojis is still in question, and we’ve also stepped into the era where the emojis are generated no longer by the humans but the artificial intelligence.

Copyrightability, when it comes to the works that are intellectual creations predominantly of an artificial intelligence with little or no help from a corresponding human intelligence, is often in question. Theoretically, the principles of copyright law grant copyright protection only to creations of human intellect and labour – thus denying copyrightability to creations of an artificial intelligence.

However, in recent times, claims have risen to reject the pre-existing proprietarian approach to Intellectual Property theories, and adopt an instrumentalist approach instead – Peter Drahos being one of the leading advocates of the same. Adopting such an instrumentalist approach, denying copyrightability to AI-generated emojis would be not the best course of action since it’ll discourage the corporations and service houses to invest in research and development leading to establishment of emoji-generating AIs.

However, such conferment of copyright wouldn’t go unchallenged. Conferring copyright on AI isn’t specifically prohibited in any of the legal systems, but most of the legal systems specifically mention that copyright can be conferred only upon human creations - one of the primary reasons therefore being that the death of the author is a prerequisite to limit the duration of the copyright protection. Conferring copyright upon AI would mean a virtually ever-lasting copyright protection.

Concluding remarks

Emojis are an amazing but still emerging way of expression in inter-human interaction that should be encouraged by way of adequate protection and other benefits to the creators. However, care should be taken by the jurists and judiciary involved to come out with a comprehensive theory of Intellectual Property that not only takes into account but also addresses the issues raised by the ever-changing technologies.