WHAT IS ARTIFICIAL INTELLIGENCE?
The field and advancement of computer systems capable of executing functions typically demanding human intelligence, such as tasks like visual interpretation, speech understanding, decision-making, and language translation.
HOW ARTIFICIAL INTELLIGENCE IS TRANSFORMING THE CREATIVE INDUSTRY?
Artificial Intelligence (AI) is rapidly transforming various aspects of our lives, and the creative industries are no exception. In India, where art, literature, music, and cinema have a rich cultural heritage, AI’s role in these creative domains raises questions about copyright, fair use, and the creation of transformative works. This article explores the impact of AI on creative industries, highlighting the legal and ethical considerations in the Indian context.
POTENTIAL USES OF AI IN THE CREATIVE INDUSTRY
AI can be potentially used for numerous purposes in the creative industry. It can be used to generate art, compose music, write literature, and even produce films. These AI-generated creations challenge traditional notions of authorship, leading to debates on fair use of copyrights and transformative works.
THREATS TO COPYRIGHTED WORKS
Copyright law serves as a protective framework for original works of authorship including literary, dramatic, musical, and artistic works. Unregulated use of AI in the creative industry poses a great threat to copyright protection guaranteed under Copyright Act, 1957 and questions the unauthenticated and unregulated use of AI due to the following reasons:
- Challenge to originality and creativity of the work
The increasing utilization of AI systems to generate diverse content, from articles and paintings to music and even software code, challenges the very notion of originality and creativity. To qualify for copyright protection, a work must display a certain level of creativity and originality.
AI-generated creations, resulting from data processing and algorithmic techniques, spark discussions regarding their suitability for copyright protection.AI-generative tools possesses the capability to reproduce and emulate copyrighted works, causing a blurred distinction between original and AI-generated content and giving rise to legal intricacies.
- Unintentional infringement
AI systems, in their quest to learn from data, may unintentionally reproduce or copy copyrighted works, potentially treading into the territory of copyright infringement. For instance, an AI system trained on a dataset of copyrighted images might inadvertently create new images that incorporate elements from the copyrighted originals.
Addressing this challenge may involve the development of AI systems equipped to recognize and avoid the use of copyrighted material. Nonetheless, this approach may not always be practical, especially when the copyrighted content is fundamental for the AI system’s learning and development. In such cases, exploring licensing agreements or considering the application of fair use principles may become necessary to tackle potential infringement issues.
APPLICABILITY OF FAIR USE DOCTRINE IN INDIA AND ITS IMPACT ON THE AI INDUSTRY.
Fair use allows limited use of copyrighted material without the need for permission or payment. In India, fair dealing is a legal concept that resembles fair use. However, its scope is narrower than that of fair use in countries like the United States. AI’s role in creating derivative works complicates the application of fair dealing in India.
PROVISIONS OF THE COPYRIGHT ACT, 1957 WHICH MAY PROTECT AI CONTENT TO SOME EXTENT.
The utilization of copyrighted material by AI tools can find justification through the fair use or fair dealing doctrine within copyright law. Section 52 of the Indian Copyright Act outlines certain exceptions to copyright infringement, allowing for a limited use of copyrighted material without the owner’s explicit authorization.
Although not expressly defined in the legislation, fair dealing with literary, dramatic, musical, or artistic works for purposes like research, private study, criticism, or review may fall outside the realm of copyright infringement.
The Indian judiciary will need to adapt to the changing landscape of AI-generated content by reassessing the provisions related to fair dealing. Courts may be required to contemplate whether AI-generated content should benefit from a broader fair use exception.
ARTIFICIAL INTELLIGENCE AND RIGHT TO PRIVACY
Anil Kapoor V. Simply Life India & Ors CS(COMM) 652/2023
RELEVANT FACTS OF THE CASE
- Anil Kapoor, a prominent figure in the Bollywood film industry, found himself in a challenging predicament. Unauthorized individuals were utilizing advanced technologies, including artificial intelligence, to manipulate his name, voice, lines, and images. This misconduct not only tarnished his reputation but also posed a threat to his financial interests. Mr. Kapoor opted to take legal action and filed a petition with the Delhi High Court to safeguard his rights over his persona.
- The actor’s concerns encompassed various aspects of his persona, including his iconic characters like Lakhan, Mr. India, Majnu Bhai, and the well-known catchphrase “jhakaas.” Mr. Kapoor’s argument aimed to prevent the unpermitted use of these attributes, especially for financial gain. It’s important to note that the court’s decision only permits the use of the term “jhakaas” for purposes of mockery, parody, and critique, but not for commercial purposes.
- Anil Kapoor pursued legal safeguards for his legal name, appearance, voice, and other defining attributes that constitute his identity. His primary objective was to prevent any unauthorized commercial exploitation of these elements.
- A significant aspect of this matter revolved around the inappropriate utilization of advanced technologies, including artificial intelligence (AI), to manipulate and capitalize on a celebrity’s persona.
- Delhi High Court held that the use of generative AI tools (such as MidJourney AI) to portray famous personalities in fictional settings constitutes a violation of their personal rights.
- Delhi High Court Protects Actor Anil Kapoor’s Personality Rights, Restrains Use of His Name, Image or Voice Without Consent.
EVOLVING LEGAL TRENDS AND ANTICIPATED LEGISLATIVE FRAMEWORK
India had joined a league of leading economies – including the United States, the United Kingdom, the European Union, Australia, Canada, France, Germany, Italy, Japan, Mexico, New Zealand, South Korea and Singapore – in launching the Global Partnership on Artificial Intelligence (GPAI). The GPAI is an international, multi-stakeholder initiative to guide the responsible development and use of AI, grounded in human rights, inclusion, diversity, innovation, and economic growth.
Furthermore, in 2021, the Parliamentary Standing Committee, in its 161st report had evaluated the Indian Intellectual Property Rights (IPR) framework and proposed the establishment of a distinct classification of rights designed for Artificial Intelligence and related advancements. The committee offered potential solutions for safeguarding these innovations as intellectual property rights (IPRs).
- The Ministry of Electronics and Information Technology, released a national strategy for artificial intelligence, which outlines the vision, mission, objectives, principles, and challenges of developing and deploying AI in India. The strategy also identifies IP as one of the key enablers for AI innovation and recommends strengthening the IP regime and creating an IP facilitation centre for AI.
- The legislature has also proposed the Digital India Bill which is expected to replace the IT Act. The much-awaited Digital India Act is also expected to have provisions to govern emerging technologies such as artificial intelligence (AI) and quantum computing.
As the dawn of AI unfolds, India is diligently working on incorporating and refining its legal and regulatory frameworks, ensuring a brighter and more secure future. The infusion of AI into India’s creative industries presents a complex landscape of legal, ethical, and cultural considerations. Addressing these matters is of paramount importance as the nation strives to adapt its intellectual property and regulatory frameworks to the era of artificial intelligence. One of the central issues revolves around establishing copyright ownership for artistic, musical, or literary works generated by AI. In certain legal contexts, such as in India, copyright is typically assigned to the individual most closely associated with the AI, often the programmer or the AI’s owner.
Furthermore, it is imperative to engage in meaningful dialogues that involve artists, AI developers, legal experts, and ethicists. These discussions are crucial for striking a delicate equilibrium between fostering innovation and safeguarding the rights of creators. By adopting a proactive stance, India can harness the full potential of AI while concurrently preserving its rich cultural heritage and creative legacy in the digital age.
Author – Pooja Singh, Senior Associate and Ketan Joshi, Senior Associate
Co – Author – Aditi Arora, Assessment Intern