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AI Tools and the existential crisis of IP protection across the globe

With the advent of AI tools into the daily life where even the most basic tasks can be accomplished via AI tools, IP management and protection has never been under fire more now than before. AI tools like ChatGPT and such use the Large Language Model (LLM) format wherein massive Petabytes of data is fed to it through which it 'learns' and engages in machine simulated human intelligence which enables to perform tasks which require human cognitive processes and accomplishes such tasks via the usage of prediction and recognizes patterns through such data. AI tools require complex algorithms to process such complex data to facilitate such complex tasks which to human intelligence maybe considered banal in nature.

Certain AI like ChatGPT are fed data through multitude of sources and it cannot differentiate between what is considered proprietary data and publicly available data which is very different from Gemini by Google which can differentiate between the proprietary data and publicly made available data so in case of Gemini if one requires it to infringe upon a for example a well known trademark and asks them to make something similar which is considered infringement according to trademark law it will state that it cannot process such a request as it will be considered an infringement upon IP law and there will be legal actions taken against it should it follow through such a request.

The main factor of AI and AI tools are that it does not generate original content and as such are not able to creatively make new content but remake previously fed content. Creativity is under the human domain and as such as mentioned under The copyright Act of 1957 Section 2(d)(VI) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created. So hence under the Indian Copyright Act the creativity which is rendered through an AI generated wok will be given to the person who uses the necessary prompts to render such a result provided it does not infringe upon the original creator of such works. The generated work should be distinguishable from the original works of the person who initially created such works of art.

According to the European Artificial Intelligence Act[1] which is the first of its kind of legislation which implements regulations on the usage and development of AI across the EU:
  • This Act introduces mandatory legislation based on human oversight and guidelines which Open AI and Google and the other AI creators to adhere and establish a new category of AI works which will be protected under this act and let us establish this addition according to the existing framework thus ensuring no system overhauling is required.
  • This Act ensures that there is a transparency in the system for AI related operations and gives the requirements which needs to be followed by the creators when training such models to understand the need for IP rights while at the same time ensuring innovation into such scientific advancement.
  • By establishing such an Act, the EU has managed to ensure comprehensive IP protection across all member states and paved the way for a globalized system for AI related IP rights. Thus, this ensures that 2 birds are hit by the same stone.
  • Under the Indian Legislative perspective there are various challenges which need to be mentioned as the legislations in place regarding IP protection have not been updated to stay abreast of the AI wave and some of those challenges are:
  • The challenge between authorship and ownership as according to a creator of work the copyright of the same is given to the author and first owner of the copyright thus in an AI generated work of art will the programmer be given or the person who put the prompts leading to the generation of such work of art or the AI itself.
  • The most base question of originality and creativity will be under question as the AI uses algorithms and LLMs to learn and predict patterns and such which leads to the question of originality into question as there are questions of replication of existing sources thus there is no constitution of creativity leading to the courts being engaged for decisions regarding the same. As such there has not been an Indian case regarding this issue as of writing this article and as such the decisions by the Court of Law will lay down the roadmap to the AI and its IP works for the Indian subcontinent.
  • The duration for copyright is lifetime of creator plus 60 years under Indian law leading to the question of who has the copyright and whose lifetime will dictate the protection period and since AI is the author in AI generated works and such will have limitless copyright until the AI model is decommissioned and post decommission will it also have copyright protection.
  • Under the Indian Patent Act should a new invention be attributed to an AI model will it have protection as AI models do not have the necessary human creativity embedded into its core programming but prediction analysis and as such should any invention even occur due to the researchers using AI model which have been proprietary data will it infringe upon the original creators works as in essence it is considered corporate espionage and patent infringement.
Some of the most recent Judgements regarding AI are:
Mattel Inc v Jayant Agarwalla[2]: Under this case Mattel sued the defendant for selling AI generated pictures of Mattel's trademark Barbie and the Delhi High Court granted Mattel a permanent injunction against the defendant for Mattel's trademark right infringement.

Anil Kapoor v Simple Life India and Ors[3]: Anil Kapoor sued the defendant in this case for using Generative AI to create scenarios using his likeness through his works without prior agreement and as such the Delhi High Court stated the defendant violated the privacy and personality rights of Anil Kapoor.

Despite there being so many drawbacks when using AI there are some positive feedbacks regarding the same. Some of these are:
  • AI can be used to find infringed copyrighted material as the human element will need hours to figure out the same even the human element will ultimately be needed to figure out the infringed from real works at the end, but the process becomes much more simplified through the usage of AI tools.
  • AI is not enclosed within geographical boundaries but works through the Internet and as such has no limitations which the human element will face in terms of language and legislation but we cannot eliminate the human element as there can be false positives in the system leading to wrongful infringement claims being filed thus to ensure it doesn't occur there needs to be a human at the end of the chain.
  • Due to AI being more cost-effective than humans it is useful in the long run even though there needs to be human oversight to make the ultimate judgment, but it helps put a deterrent effect on the infringement process as there will be a less likelihood of persons being under the radar for infringement.
In conclusion AI is something which has become an important invention in today's time and will become more complicated as time passes as the Turing test which tells us that the artificial intelligence has become human adjacent or at the same level has yet to be beaten by any AI and such once AI can start to beat the Turing text will we as lawyers and those in the legal field will have our work cut out for us.

  2. 2008 (153) DLT 548
  3. CS(COMM) 652/2023

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