Legal experts have noted that Indian intellectual property (IP) laws are not evolved enough to address complex issues pertaining to artificial intelligence (AI) and copyrights.
Ranjana Adhikari, partner at INDUSLAW, said, “The interface of generative AI tools based on large language models (LLMs) with copyright law is a recent phenomenon, and Indian jurisprudence in this context has not evolved sufficiently to address the various nuances.”
The New York Times (NYT), on December 27, sued OpenAI and Microsoft (MS), alleging that they had used the newspaper's content without permission to train their chatbots, thus infringing NYT’s copyrights.
According to NYT, these chatbots use its content to provide information to readers, thus taking a `‘free-ride on The Times’ massive investment in its journalism by using it to build substitutive products without permission or payment.’’
NYT alleged that both OpenAI and MS ‘greatly benefited from wrongful conduct in multiple ways.’’ The plea states that “Each defendant has reaped substantial savings by taking and using — at no cost — New York Times content to create their LLMs. Times journalism is the work of thousands of journalists, whose employment costs hundreds of millions of dollars per year.”
This case filed in the US raises an important question about how equipped Indian courts are to adjudicate such issues, should a case be filed? While the Copyright Act of 1957 exhaustively covers the infringement of copyrights, it is yet to upgrade itself vis-à-vis technological advancements and their interface with IP.
In September 2023, not only did the Delhi High Court (HC) restrain certain entities from using actor Anil Kapoor’s image without authorisation, it went a step ahead and restrained the entities from creating images and videos using AI that feature Kapoor. The orders were passed under the Copyright Act. However, in cases such as NYT’s, where sweeping allegations have been made with respect to use of technology and IP, the laws in India may fall short.
Fair use and copyright
Fair use is a concept in copyright law which permits a party to use copyrighted work without the copyright owner's permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
“Relying on existing provisions of the Copyright Act, in order to avoid infringement while using any copyrighted work, one has to either fall within one of the exceptions under Section 52 of the Act (such as fair use), or procure an appropriate licence,” said Adhikari.
Section 52 of the act lays down parameters to claim exemption from infringement under fair use, however the section does not address the use of content by or for AI.
Noting that Indian courts are yet to see such a case, Siddharth Mahajan, partner at Athena Legal, said: “In cases such as this, the claim (of infringement) would have to be analysed on the grounds of substantial similarity in the output, and fair use, as defined under the Copyright Act.”
In its plea, NYT has contended that the use of its content to train OpenAI and MS chatbots is not fair use. The media company has stated that using its content without payment to create products that are its substitutes is not covered by the concept of fair use. According to the plea, “Because the outputs of the defendants’ GenAI models compete with and closely mimic the inputs used to train them, copying Times’ works for that purpose is not fair use.”
Parliamentary standing committee’s report on the IP regime
Manmeet Kaur, Partner at law firm Karanjawala and Company, noted that the parliamentary standing committee on commerce, in its 161st report in July 2021, had observed that the Copyright Act is not armed to help decide ownership, authorship, and inventorship with respect to AI. “The committee recommended a review of the existing IPR laws to enable the government to bring AI-generated work under the ambit of IPR laws,” said Kaur.
The committee’s report said: “In order to extract benefits from AI, revisiting IPR legislations and implementing a strong IPR framework is desirable.” Furthermore, it recommended that a separate category of IPRs with respect to AI and AI-related solutions be created. It also asked the government to incorporate rules pertaining to AI and AI-related solutions in the existing legislations — the Patents Act, 1970, and the Copyright Act.
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