Indian IP laws not equipped to address AI-related issues, say experts
Legal experts have highlighted that Indian intellectual property (IP) laws are not sufficiently developed to handle complex matters concerning artificial intelligence (AI) and copyrights. According to Ranjana Adhikari, partner at INDUSLAW, the intersection of generative AI tools based on large language models (LLMs) with copyright law is a recent development, and Indian jurisprudence has not progressed enough to address the various nuances involved.
The New York Times (NYT) has filed a lawsuit against OpenAI and Microsoft (MS) on December 27, alleging that they used the newspaper’s content without permission for training their chatbots, thereby infringing on NYT’s copyrights. The lawsuit claims that these chatbots utilize NYT’s content to provide information to readers, taking advantage of the free-ride on The Times’ massive investment in its journalism by using it to build substitutive products without permission or payment.
The allegations against OpenAI and Microsoft suggest that both companies have greatly benefited from their wrongful actions 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.
One crucial question raised by this case is whether Indian courts possess the necessary expertise to adjudicate such matters if a similar case were to arise. Although the Copyright Act of 1957 extensively covers copyright infringement, it has yet to adapt to technological advancements and their interface with intellectual property (IP).
In September 2023, the Delhi High Court (HC) prohibited certain entities from using actor Anil Kapoor’s image without authorization. Furthermore, the HC restrained the entities from creating images and videos using AI that feature Kapoor, both actions taken under the Copyright Act. Nevertheless, in cases like the NYT’s, where sweeping allegations have been made regarding the use of technology and IP, Indian laws may prove inadequate.
Fair use and copyright play significant roles in these matters. Fair use is a concept in copyright law that permits the use of copyrighted work without the owner’s permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Adhikari explains that to avoid copyright infringement while using copyrighted work, one must either qualify for one of the exceptions under Section 52 of the Copyright Act, such as fair use, or obtain an appropriate license.
Section 52 of the act establishes the parameters for claiming exemption from copyright infringement under fair use. However, this section does not specifically address the use of content by or for AI. Siddharth Mahajan, partner at Athena Legal, notes that Indian courts have yet to encounter cases of this nature and suggests that claims of infringement must be analyzed based on substantial similarity in output and fair use, as defined by the Copyright Act.
In its lawsuit, NYT argues that the use of its content to train OpenAI and Microsoft chatbots does not fall within fair use. The media company contends that using its content without compensation to create products that are substitutes for its own is not covered by the fair use concept. The lawsuit states, 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.
The parliamentary standing committee on commerce, in a July 2021 report, acknowledged that the Copyright Act is ill-equipped to determine ownership, authorship, and inventorship concerning AI. The committee recommended revisiting existing intellectual property rights (IPR) laws to incorporate AI-generated work into the IPR framework. It also suggested the creation of a separate category of IPRs for AI and AI-related solutions, along with the inclusion of rules pertaining to AI and AI-related solutions in the Patents Act, 1970, and the Copyright Act.
Experts believe that India’s IP laws need to be updated to address the unique challenges and opportunities presented by AI. The case between NYT, OpenAI, and Microsoft serves as a prominent example of the need for clearer regulations in this field. As the world continues to advance technologically, it is crucial for lawmakers and legal systems to keep pace, ensuring that intellectual property rights are adequately protected while promoting innovation and fair use.
