INTRODUCTION
With the rapid evolution and wide adaptability of softwares like Copilot, Chat GPT, MidJourney, etc. technological world is meeting its new revolution. However, it brings serious concerns along. One of the major concerns is the ‘Intellectual property rights’. Intellectual Property is one’s intangible property which is the creation of a human intellect. Among conventional rights, intellectual rights stand different because of its uniqueness as it is predicated on one’s intelligence, creation and innovation. These rights are essentially governed by the Copyrights Act,1957, the Patents Act,1970 and the Trademarks Act, 1999.
A BRIEF BACKGROUND
Intellectual Property Laws were formulated years back to protect physical intellectual properties like books, articles, objects etc. For instance, the author has exclusive intellectual property rights over his work (majorly under Copyrights Act in this case). Its scope and ambit kept on increasing with the advancement of technology along with its amplifying significance.
With the growing emergence of revolutionary Artificial Intelligence in the technological world, the significance of understanding IP protection for generative AI has become all the more important. Better and guarded IP rights provides more integrity, accountability, security and upholding rights of the original author. Imagine Kshitij, a student prompts an AI tool to write a research paper for him. While generating the answer, AI replicates the exact words of another author’s copyrighted work without permission or citation. In such a case, it constitutes infringement of the copyrighted work of the original author.
WHAT DO ENFORCEMENT OF IP LAWS DO?
Intellectual Property Laws essentially and fundamentally protects the original works of its creator/author. Any infringement with such author’s protected rights is made punishable under the relevant IP laws in India. Such infringement of intellectual property rights can be understood with the help of the following illustrations:
a) Unauthorised replication of the copyrighted work of the original author by Kshitij constitutes violation under Copyrights Act, 1957.
b) A startup starts selling articles using a logo deceptively similar to an established brand’s registered trademark. This is a trademark violation under the Trademarks Act, 1999.
c) A person deliberately and deceptively claims inventorship over another’s invention is violation under the Patents Act, 1970.
GENERATIVE AI
Chat GPT, Copilot etc. have become cumulatively and massively popular. These are primarily applications mimicking human intelligence and is prominently known as “Artificial Intelligence”. Generative AI has a vast usage ranging from a student to global institutions/ markets/ content developers etc. It prominent features includes accomplishing work more expeditiously, efficiently and easily. However, there are certain complications it brings with its usage. This article expounds such legalities, complexities while discussing its evolution in the technological world.
CHALLENGES IN IP PROTECTION AND GENERATIVE AI UNDER INDIAN LAW
There are plethora of challenges in the enforcement of traditional Intellectual Property framework in the age of fast-pacing digital transformation, particularly AI.
These are discussed into three categories as below:
COPYRIGHT CHALLENGES IN GENERATIVE AI UNDER INDIAN LAW
The Copyright Act, 1957 aims at protecting the rights of the creator/author for his original creative work i.e. literary, artistic and music, films, sound recordings etc. Section 14 of the Copyright Act,1957 provides the meaning of the term “Copyright”. It is defined as exclusive rights granted to the owner/author to do or authorize the acts concerning their works. Thus, it gives the author the exclusivity to use, reproduce, perform, adapt or commercialize his work. It ensures that only the owner can commercialize his work.
Training data and Fair Dealing
Artificial Intelligence relies on large, diverse datasets for training to ensure accurate and reliable results. It processes vast amounts of data drawn from text, images, video, and audio that is much of which is ubiquitously available on the internet. Since using copyrighted work of an original author may tantamount of infringement of one’s copyrights protected under the Act, Section 52 of the Copyrights Act, 1957 delineates exceptions as to when certain acts are not to be considered a copyright infringement. However, the complication lies in the legal vacuum created by not addressing the question requiring a pressing need of certainty i.e. “Whether copyrighted works can be used to train AI models or not? Does that amount to fair dealing or not?”
Ownership of AI Generated Content
Recently Supreme Court in RG Anand vs Delux Firms made a pronouncement of exceptional judicial import by holding that copyright is granted for the expression of ideas expressed, articulated, represented, produced by the author. But another issue is the uncertainty of AI being an author? The Copyright Act, 1957 was enacted thus laying protection on human generated content. It is the intangible property of “human” intellect. Section 2(d) of the Act does not explicitly and categorically address this conundrum.
Indian laws do not recognize AI as a legal person. Hence, only individuals, companies or other legal entities recognized by law can be an author. Artificial intelligence is merely a tool which aids human intelligence but cannot take place of a human intellect.
The famous DABUS case decided by the High Court of England and Wales outrightly denied the status of an inventor to a machine/ tool i.e. an AI because it is not a legal person.
Cultural Production or Bollywood Replication
The use of AI to generate or even clone voice, images, videos, and other creative content has become increasingly prevalent. However, it is noteworthy that AI-generated outputs can severely impact the authenticity and integrity of original works. Such outputs may substantially jeopardize the interests of genuine creators and potentially infringe upon their moral rights, as protected under Section 57 of the Copyright Act.
PATENT CHALLENGES IN GENERATIVE AI UNDER INDIAN LAW
Since artificial intelligence is a recent phenomenon, the formulation of the Patents Act, 1970 pre-supposes the “Inventor” as a human. It is not explicitly mentioned, however, it is reflected in the provisions posing requirements such as signatures, declarations and conferring certain rights on inventor etc. India is in lines with the global trends of refusing AI as the sole inventor of an innovation. While India ranks fifth in Generative AI Patents filing, there is
created a legal vacuum as to who “owns” the AI invention.
However, I related innovations are not absolutely unpatentable. There are instances where these can be patented. This can be classified into two types:
1. Purely AI models- Pure AI models, algorithms, or the content they generate are generally not patentable, as Patent Act,1970 exclude abstract software or mathematical methods from patentability.
2. AI assisted Inventions- inventions that apply AI to achieve a concrete technical effect may qualify and may be patented. Examples include improved data processing efficiency, network performance, or security, or methods that watermark or fingerprint generated content to verify ownership, can be eligible for patents if described as “technical processes or systems.”
Given these limits, many organizations adopt a hybrid approach: patent the technical aspects that are legally protectable, while keeping model weights, training data, or proprietary techniques as trade secrets, and use licensing or contractual agreements to control usage. Emerging guidelines in India, such as the draft Computer-Related Inventions (CRI) Guidelines, signal a shift toward recognizing AI/ML inventions that deliver real technical contributions, providing more clarity for innovators in the space.
TRADEMARK CHALLENGES IN GENERATIVE AI UNDER INDIAN LAW
As per Section 2(1)(zb) a trademark is a mark capable of represented graphically and capable of distinguishing goods or distinguishing goods or services from those of others. Basically, trademark is a symbol, representation, logo etc. which is used a particular and distinctive sign of a particular business/ fora. This trademark confers a unique identity to the particular owner which helps in various purposes like identification, promotion, acceptance, advertisement etc. These are crucially a result of one’s creativity and distinctiveness.
While said so, Trademark created by an AI disrupts this idea of uniqueness and thereby fails the test of distinctiveness. This may be elucidated further by understanding how Generative AI works. AI generation is based on algorithms which analyses data, finds patterns and delivers results.
Thus, AI generated logos or even brand names based on these algorithms and data provided publicly. However, these desired outputs face the conundrums on one pretext or the other. Trademarks Act, 1990 presupposes human as the inventor and the ownership. Thus, this impugnes the ownership and authorship of the Trademark. Also, it messes with the Intellectual Property Infringement of the third party.
Since it fails the test of distinctiveness, the stumbling block in Generative AI causing Trademark infringement is categorically and seemingly twofold:
1) Authorship and Ownership
It is noteworthy that AI is not statutorily recognized as a legal person. The question remains a potential drawback as to who owns the creation of the trademark?
2) IP infringement
Can AI be legally sued in the event of any IP infringement and against whom the claims would be sought. Silence on these seminal conundrums create a massive legal vacuum thereby adding confusion and complexities in the judicial system.
CASE LAWS ON IP PROTECTION FOR GENERATIVE AI
Arijit Singh vs Codible Ventures LLP
This case of Bombay High Court reprimanded the unauthorized use of Artificial intelligence in cloning voice of famous artist Arijit Singh for cloning his voice.
RAGHAV case
When Ankit Saini applied for co-authorship of an AI named RAGHAV, it was accepted by India, however the matter is under consideration in the Delhi High Court.
ANI vs Open AI
Asian News International has filed a case against Open AI for using its news content for training its AI model (Chat GPT).
REGULATORY RECOMMENDATIONS
Given the age of AI and legal complexities, the following recommendations can be suggested:
· Clarity on points of confusion
· Direct and explicit provisions dealing with new AI developments
· Introduce transparency norms for training datasets.
· Enable licensing frameworks for using copyrighted works in training.
CONCLUSION
Artificial Intelligence is a recent technological as well as digital advancement; however, it gives rise to numerous legal complexities, which are further exacerbated by the absence of specific regulatory provisions in this domain with challenges with regard to the ownership, liability, fair usage etc.
About Author
Nikita Verma is a law student at Punjabi University, Patiala. With a keen interest in Corporate Law, Contract Law, Intellectual Property Rights (IPR) and ADR Nikita Verma aspires to contribute to contemporary legal disclosure and practice by engaging with emerging issues in corporate governance, alternative dispute resolution, and the protection of intellectual creations
FAQs
1. Is Al-generated content protected by copyright?
No, Al-generated content is not protected by copyright unless there is significant human creativity involved.
2. Who owns Al-generated work?
The ownership of AI generated work is dependent on platform policies; usually the user, but not always legally settled. There is no clarity as per present IP laws in India.
3. Can training Al on copyrighted data be illegal?
Training Al on copyrighted data may or may not be illegal depending on the provisions of the law. If it falls under the fair use or if the output is mainly a human invention with mere AI assistance, it may be perfectly legal.
4. How can companies protect their Al systems?
Companies can protect their AI systems in various ways. It includes ways like patents, trade secrets, and database rights etc.
REFERENCES LINKS:
2. http://mondaq.com/india/trademark/1409950/the-intersection-of-ai-and-trademarks
3. https://www.snrlaw.in/ai-generated-inventions-new-questions-for-patent-regimes/