India's IP Laws Need To Adapt To AI Creativity

Generative Artificial Intelligence (AI) is a technological marvel that has ushered in a new era of creativity and innovation. It refers to the utilization of algorithms and models that empower machines to independently generate content with limited human intervention. These algorithms often simulate human creativity by drawing knowledge from extensive datasets of pre-existing content. Generative AI has the remarkable ability to autonomously create content across various domains, including art, music, literature, and software.

However, this technological advancement has also brought forth a unique set of challenges to the realm of Intellectual Property Rights (IPR), particularly in the areas of copyrights and trademarks. In India, as in many other parts of the world, this is perhaps the time to revisit the existing IPR laws and bring the necessary legislative changes to effectively address the intricacies posed by Generative AI while ensuring fair protection for creators and innovators. This article explores the multifaceted challenges that Generative AI presents to IP protection within the framework of Indian statutes, with a specific focus on copyrights and trademarks. It also considers the necessary legal adaptations and reforms required to strike a balance between fostering innovation and safeguarding the rights of creators and inventors.

Generative AI has become extremely relevant for IP protection because it can create unique and original works of art, music, literature, design, and other forms of expression that may have economic and cultural value. These works may be eligible for IP protection and may require new legal frameworks to address the specific features of generative AI.

IP protection aims to encourage innovation and creativity by granting exclusive rights to the creators or owners of intellectual works. These rights include the right to reproduce, distribute, perform, display, modify, or license the works. IP protection also aims to prevent unauthorized use or exploitation of intellectual works by others.

The emergence of generative AI raises important questions and challenges for IP protection, such as:

• Who is the author or owner of the works created by generative AI?

• How can the originality or novelty of the works created by generative AI be determined?

• How can the rights and responsibilities of the human developers, users, or beneficiaries of generative AI be defined?

• How can the infringement or plagiarism of the works created by generative AI be detected or prevented?

While Generative AI is the future, due to the current position of our statutory laws, there is a vacuum which requires to be filled especially with the growing trend. Due to the above said, there have been situations where judicial authorities and quasi-judicial authorities have declined to accept AI generated IP protection worthy owing to them not being a result of human creativity.

The Copyright Act, 1957, forms the legal foundation for copyright protection in India. This Act primarily caters to creative works authored by humans. However, the advent of Generative AI has complicated the landscape of copyright protection in several ways, outlined herein below. While there has been some respite for significant reforms that the Copyright Act of 1957 should undergo, to effectively address the challenges posed by Generative AI, have also been mentioned.

Authorship and Ownership: The fundamental concept of copyright revolves around authorship. The Copyright Act defines an author as the person who creates the work. With Generative AI, determining authorship becomes ambiguous. Is it the AI developer who created the algorithm, the user who initiated the AI to generate content, or the AI system itself? The Copyright Act does not explicitly address this. The Act should be amended to explicitly define authorship and ownership of AI-generated works. This could involve recognizing the AI developer as the author, attributing authorship to the user, or considering joint authorship between the AI system and its developer or user, depending on the circumstances.

Originality: Copyright protection is contingent on the originality of a work. AI generates content by learning from vast datasets, leading to concerns about the originality of AI-generated works. The Copyright Act lacks clarity on whether these works meet the originality criterion. The Act should be revised to specify criteria for originality in AI-generated works. This might entail considering the extent of AI's creative input and independence when determining copyright eligibility.

Infringement in the Digital Age: The digital realm allows for widespread dissemination and reproduction of content, making instances of copyright infringement more prevalent. The Copyright Act does not provide explicit guidelines for addressing infringement involving AI-generated content, leading to legal ambiguities. Clear guidelines should be established for determining liability in copyright infringement cases involving AI-generated content. These guidelines should differentiate between intentional human infringement and unintentional or algorithmic infringement.

Fair Use and Transformative Works: The Copyright Act includes provisions for fair use, allowing limited use of copyrighted material without permission for purposes such as criticism, commentary, and education. However, defining "fair use" becomes intricate in the context of AI-generated content, and the Act does not offer specific guidance on this matter. The Copyright Act should offer more clarity and guidance on fair use of AI-generated content. This could involve creating a framework to assess whether AI-generated content qualifies as transformative use of existing material.

Trademark protection in India is governed by the Trade Marks Act, 1999. Trademarks are critical for brand recognition and protection in the marketplace. However, as Generative AI becomes more capable, it presents challenges within the trademark framework:

Possible Infringement: Trademarks protect words, phrases, symbols, and designs that are used to identify the source of goods or services. Generative AI can be used to create new trademarks that are very similar to existing trademarks. This could potentially mislead consumers into believing that the new products or services are associated with the owner of the original trademark. For example, a generative AI model could be used to create a new logo that is very similar to the logo of a well-known company. This could potentially infringe on the trademark rights of the company.

Distinctiveness and Protectability: The Trade Marks Act requires that trademarks be distinctive and capable of distinguishing goods and services. As AI generates trademarks autonomously, determining the distinctiveness and protectability of these trademarks becomes a unique challenge. There needs to be a requirement for explicit guidelines on the distinctiveness and protectability of AI-generated trademarks. This would help trademark authorities assess the uniqueness and appropriateness of such trademarks.

Human Involvement Requirement: The Act currently necessitates that a trademark application be filed by any person claiming to be the proprietor of a trade mark. Akin to the issues as discussed in the realm of copyright laws, with AI-generated trademarks, there can be serious concerns qua ownership as well. There needs to be clarity on the same as well as role of AI in trademark registration and the procedural requirements are when AI generates trademarks autonomously.

To cope with the complexity of AI-generated content, lawmakers and policymakers need to engage actively with the issues and implications. To strike a balance between promoting innovation and protecting IP rights, collaboration between technology experts, legal professionals and creative communities is crucial. Effective and forward-looking regulation can support the growth of a generative AI ecosystem, while respecting the rights of creators.

For instance, the European Parliament has proposed a draft Artificial Intelligence Act that aims to regulate the safe and transparent use of AI, imposing obligations on generative AI systems to comply with transparency requirements and ensure safeguards against generating illegal content, among other things. In the United States, the US Patent and Trademark Office (USPTO) issued a report on the public views on artificial intelligence and intellectual property policy, which covers topics such as patent eligibility, inventorship, disclosure, ownership, enforcement, and data protection of AI-related inventions. The report also discusses the implications of generative AI for trademark and copyright law. The USPTO is focused on incentivizing more innovation, inclusively and in key technology areas such as artificial intelligence (AI) and other emerging technologies (ET) through AI/ET Partnership. In China, the National Intellectual Property Administration (CNIPA) issued a draft guideline on patent examination of artificial intelligence inventions, which clarifies the patentability criteria, disclosure requirements, novelty assessment, and inventive step evaluation of AI-related inventions. The guideline also addressed the issues of generative AI for design patents.

In India, the Ministry of Electronics and Information Technology (MeitY) 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.

Generative AI has irrevocably altered the landscape of creativity, innovation, and intellectual property. In India, as in many other nations, the existing IPR framework, particularly in copyrights and trademarks, faces new complexities and challenges that require immediate attention and adaptation. While protecting the rights of creators and innovators remains paramount, it is equally essential to foster a conducive environment for AI-driven innovation.

Reforms within India's Copyright and Trade Mark framework should aim to explicitly define authorship and ownership of AI-generated works, address the originality criteria for such works, establish clear guidelines for copyright infringement involving AI, and provide guidance on fair use in the AI context within the Copyright Act of 1957. Simultaneously, the Trade Marks Act, 1999, should provide clarity on the distinctiveness and protectability of AI-generated trademarks and define the role of AI in trademark registration.

In striking this delicate balance between protection and innovation, India can position itself as a leader in the global AI landscape, encouraging creativity, entrepreneurship, and economic growth while safeguarding the rights and interests of its creators and inventors. As Generative AI continues to shape our world, an adaptive IPR regime will be the linchpin of India's continued success in the ever-evolving intellectual property landscape.

Arjit Benjamin is an Associate Partner at Prosoll Law.