The current legal structure in India around Artificial Intelligence (AI) and copyright laws needs to evolve to handle cases similar to the one filed by The New York Times (NYT) against OpenAI and Microsoft, experts told Business Standard.

“Indian law currently lacks specific provisions to address the complexities of AI-related copyright infringement,” said Aviral Kapoor, partner at Alagh & Kapoor Law Offices.

“Unlike the US, where cases like NYT vs OpenAI are unfolding under an established legal framework, India’s copyright laws do not explicitly recognise AI as authors or creators.”

In December, NYT sued OpenAI, the creator of ChatGPT, and Microsoft, which has announced substantial investment in the company. The lawsuit contends that “millions of articles” published by the NYT were used to train automated chatbots, which now “compete with a news outlet as a source of reliable information”.

NYT has not asked for a particular monetary demand, but it has stated that OpenAI is responsible for “billions of dollars in statutory and actual damages”. It has also asked for companies to destroy any chatbot models and training data.

Nidhi Singh, partner at IndiaLaw LLP, explained that traditionally, copyright protection is available only against the act of real copying or substantial copying. However, in the case of generative AI, they synthesise a huge database of the work done by the creator and produce fresh work.

According to Anupam Shukla, partner at Pioneer Legal, here copyright may be attributed to the human developers of AI models who select training data, parameters and prompts. “If copyrighted data is used to train AI models, potential claims could be built around data scraping or unauthorised use,” he said.

“Copyright regime all over the world is not equipped to handle such challenges arising from the contents created by AI Platform,” Nidhi added.

Experts also highlighted that the case hinges on the interpretation of the “Fair Use” doctrine under the copyright law. Both India and the US have established their respective doctrines. However, there are key differences in their approach.

“Fair use in India is limited to specific purposes. While the Indian Copyright Act doesn’t explicitly list these purposes, courts have interpreted them based on judicial precedents. Fair use in the US has a broader scope and the US Copyright Act lists these purposes as non-exhaustive, allowing for a more flexible interpretation,” he said.

Some experts also suggest that if AI companies store articles for creating databases, it may amount to infringement under Indian laws.

“This issue of articles being used merely as datasets in a non-expressive manner is critical in determining the culpability of AI developers, under Copyright laws,” said Subhash Bhutoria, founder & principal at LAW SB. “Storing these articles for the purpose of creating datasets may amount to infringement under Indian Copyright laws and the AI developers can be held liable for copyright infringement under the Indian Copyright laws.”

Content generation using AI may also lead to conflict in advertising, one of the most content-dependent industries.

Manisha Kapoor, secretary-general and chief executive officer (CEO) of the Advertising Standards Council of India, said that “it may also stir up copyright issues, generate unlawful and unethical content and raise concerns about data privacy”.

In any case, the legal structure in India may need to evolve to handle Generative AI. There is also a need for clarifications in legislation around such technologies.

“Either the law will have to evolve through amendments to address the specific challenges posed by AI or clarity will come through legal cases involving AI copyright infringement,” Shukla added.

“This could involve either creating a separate category of rights for AI innovations or amending existing laws to cover the authorship and ownership issues posed by AI. Clarity in legislation would help in navigating the legal complexities brought about by technologies like ChatGPT and ensure that creators, users, and AI developers are adequately protected and guided by the law,” added Kapoor.

Source: Business Standard