Can India’s Copyright Law Address AI Challenges?

Author: Tejaswita Sahoo, Campus Law Centre, Faculty of Law, University of Delhi

Introduction

On 9 February 2024, the Ministry of Commerce and Industry, through PIB, clarified that there is no need for a separate category of Intellectual property rights for AI-generated works. However, given the growth of AI content, making no rules can hamper the growth of both original authors and emerging AI technologies. There is a need to strike a balance between the rights of actual creators and fostering the growth of AI technologies. This can only begin when we know who the owner of AI content is and accordingly, this will shape the copyright ownership laws in this AI era.

Who can claim copyright over AI content?

The entire dispute is about – Who owns AI content? Is it the AI developer? User? Or the AI itself?

Why can AI Developers claim copyright over AI content?

AI Developers like OpenAI can use their own intellectual capacity to generate AI content. They put many efforts into developing a technology that can help generate AI content.

Why can users claim copyright over AI content?

Users use their creativity to give prompts to the AI to generate content as per their requirements. AI is just a tool like Photoshop, cameras that cannot create content without any directions from users and users remain the author of the final creative work.

Why can I claim copyright over AI content?

AI models entirely create new works using their human-like minds. They train themselves based on what they learn, basically like how a child learns.

Indian Copyright Law only focuses on Human authors as generators of AI content, so it needs to be pondered about who gets to rule over AI content given the emerging AI developments.

Copyright issues over AI content

Upstream (AI inputs) – This refers to training data used to develop AI models. This is based on someone else’ copyrightable matter, leading to issues of copyright infringement.
Downstream (AI outputs) – This refers to AI-generated content based on users’ prompts; this raises questions about copyright ownership over AI content.

Section 52 of the Indian Copyright Act, of 1957 – advocates fair dealing of copyrighted works such as private research and study, criticism, news reporting, teaching, and review.

Care must be taken that there is no commercial exploitation of the author’s original work. Eg: a researcher can use literary works for a research study but a publisher cannot publish a book for commercial exploitation, even when such books are meant for research use.

AI like ChatGPT will have difficulties in claiming its rights for copyright protection because of its commercial use and for-profit motives.

Current status of AI content in India

As per the PIB notification, the users are required to seek permission to use AI-generated content for commercial purposes, provided it doesn’t affect the fair use doctrine as mentioned in Section 52 of Indian Copyright Act.

The PIB notification doesn’t say who has copyright ownership over AI content. It also doesn’t include who would be liable in case of copyright infringement. It also doesn’t clarify whether AI needs to take permission from actual creators before training its data sets.

ANI v. OpenAI - ChatGPT uses ANI’s news content (copyrightable material) to train itself without ANI’s permission. ANI has thus recently accused OpenAI for copyright infringement. Even the Indian Music Industry (IMI) has expressed its concerns over the same. The case is still under the judicial review of Delhi High Court.

Global Approaches to AI and Copyright

USA, UK and EU focus on whether AI-generated content has substantial human intervention to make it copyrightable.
US has got a broader interpretation of “fair-use” doctrine but doesn’t allow fully AI-generated works as copyrightable.
The UK model says that the person who arranges the AI's input is the owner.
Singapore’s Copyright policy allows text and data mining for “computational data analysis”, making it more attractive for AI research.
Japan allows AI content as copyrightable as long as it doesn’t harm the interests of actual authors.
China considers that an AI model cannot be an owner of AI content as it is not a natural person, legal person, or unincorporated association.

Solutions to resolve the legal battle of who owns the AI content

Evolution in AI needs evolution in the Indian Copyright Act. Given India’s positioning in AI technologies and its increasing growth of the AI market, India needs to come up with a different category of IPR that deals with who owns AI content.

If AI content produced is not creative, users cannot claim copyright over it due to the applicability of fair use doctrine. Also if AI companies are required to pay for training data is also a matter of question.

India can approach in a hybrid manner, by allowing some protections for AI-generated content, while keeping the interests of human authors.

Conclusion

If India wants to emerge as a global leader in Artificial Intelligence, it is time for India to legislate matters on who can claim its ownership over AI content. Merely saying that it will depend upon the applicability of fair use doctrine by users won’t help solve major problems such as whether actual creators would get any royalties from AI who uses their content for commercial purposes and if AI is required to take permission every time, then AI-driven developments will reduce. It is time for India to take a stance.