Copyright Laws must be updated in preparation of generative AI’s entry into the Creative World: Pravin Anand at FICCI Frames 2024

“It’s important to know that when we talk of artificial intelligence, you’re talking about intelligence, and intelligence has evolved. It’s not just logic and knowledge and information. Today, intelligence includes intuition, it includes humour, it includes consciousness, it includes awareness about yourself in AI. What is we have reached only the fourth stage of what have been predicted as the 10th stages of AI development. There’s a lot to go, and we will go to next stages which are far more complex, which will include divine AI and artificial general intelligence, and so on, cosmic AI, and there will come a time when the singularity state is predicted to be a state when machines will not want man, they will not need men, they will not want. When we think and talk about any solutions, any problems today, keep in mind, and whatever we do today has got to take into account the future,” said Pravin Anand, Managing Partner at Anand and Anand during FICCI Frames’s discussion on AI and copyright on March 6, 2024.

Anand was talking alongside Gautam K M, Partner at K Law, Rohit Pandharkar, Partner at Ernst & Young among others to discuss how generative AI will affect intellectual property rights in India and how laws will need to change accordingly.

Need to update IP laws for generative AI: On February 14, Minister of State Som Prakash said in the Parliament that the existing IP laws of India “well-equipped” to deal with AI-related copyright issues. During the FICCI Frames event, Anand disagreed with this assertion and stressed the need for regulation of generative AI in the context of IP law as well.

“We are all in recognition of the fact that AI poses very complex dangers… it goes down to deep faith, to bias, which can be killing, to autonomous weapons, where the weapons will decide who to bomb, where to bomb, when to bomb. So, we certainly need to regulate. Just go back in time and see how have we regulated anything. Whether it was electricity or whether it was extremism, terrorism, or any violation, it was all done through laws. So, although the minister did say a few days ago that our existing laws are good enough, I don’t think that’s true at all,” he said.

Need for a consent-based approach in IP law: Anand said that it is always better to take permission from a creator when using their content. He said a person wishing to use the created work as data has two options: to request consent from the creator or get opinion from a group of lawyers on the risks and violations of using the content without permission.

“In a practical world, we must remember that there are 788 district courts in this country and there are 25 high courts, of which five have an original side jurisdiction… and it is only up to a judge to decide whether this is or is not fair use… Therefore, it is always better to take permission. And that’s when you’re absolutely safe.. the creative world is a very small world, and people who copy and make money on the creative outputs is a huge world. And if the creative world will not be supported, then they manage money. And that’s the spirit with which you have to approach copyright. I think that’s very important for us to spread that message,” he said.

Person closest to the AI-generated content is the owner: On the topic of authorship of content created by generative AI, Anand said that as per the Indian copyright law, the author of a computer-generated work is the person who caused the work to be created.

“So, the moment you have an AI program or AI generated work, the person who caused it to be created almost responsible. All you need to do, somebody has got the data together, somebody has trained the model on that data, somebody has provided the prompts which led to the generation of the work, so that somebody, the person who has a closest link to the generated work is obviously the person. And so that question has been given more violations,” said Anand.

However, he also said that the greater importance of identifying the creator of a work is not simply authorship but because it helps with the transfer of rights, or resolution of liabilities. A machine cannot transfer rights or be held liable. He argued that the issue should be considered with this in mind.

Authorship still at the centre of copyright and AI discussions: Regarding the authorship by entities, Gautam, pointed out that there have been instances like the RAGHAV AI in 2023 that mistakenly received co-authorship for some creative work. Although the office later withdrew its decision, Gautam argued that this showed authorship in the case of AI and copyright law remains ambiguous.

Speakers also discussed the implications about original content and content derived from existing content. Gautam talked about the need to discuss authorship in the context of these two types of creatives as well since AI uses existing data to generate content. Another speaker Pandharkar also stressed the importance of this approach due to the recent inception of meta engines, which are four generative AI machines coming together to build a fifth generative AI machine, thus creating a derivative content of derivative content.

“We need to also pull our socks up in terms of redefining our laws. Like Pravin said, the current laws may not be enough. We need to rethink the laws as well to protect the copyrights of artists appropriately in the new world,” said Pandharkar.

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Vallari Sanzgiri