Delving into the evolving interplay between Artificial Intelligence (AI), trademarks, and copyright law, former Bombay high court judge Justice Gautam Patel discussed the legal dilemmas posed by AI-generated works, fair use considerations, and the challenges posed by deepfakes at the 5th Professor Shamnad Basheer Memorial Lecture on Wednesday.
Referring a case where the Delhi High Court issued summons to OpenAI in a copyright infringement lawsuit filed by the news agency ANI, Justice Patel said the case raised crucial questions regarding the intersection of artificial intelligence and copyright law, particularly concerning the principles of fair use and open-source exemptions. “The question framed is: Is open source exempt from normal considerations of copyright law? For AI, does the fair use and fair dealing standard mean something different?” The case is scheduled for a hearing in January 2025.
On the role of pattern recognition in AI, Patel said it involves sophisticated computer algorithms designed to analyse and interpret data. “Data inputs can be words, texts, or files,” he said, emphasising that pattern recognition encompasses a broader scope than computer vision, which is primarily concerned with image recognition.
He further illustrated this concept by saying, “Patterns include various trends in the form of repeated data, e.g., a fingerprint, a handwritten cursive work, or a human face.” Patel said that the goal of pattern recognition is based on the premise that human decision-making is often tied to the recognition of patterns: “For instance, the next move in a chess game is based on the board’s current pattern.”
In discussing the implications of AI in creative processes, Patel said, “AI can be used to create derivative works based on copyrighted material—fair use, copyright infringement—what are the tests to determine either?” He noted that AI could be a powerful tool for detecting copyright infringement online and plagiarism, but cautioned against the potential for bias and the consequences of false positives and negatives for copyright owners.
He recalled how, in 2016, a group of museums and researchers in the Netherlands unveiled a new art piece generated by a computer after analysing thousands of artworks by the 17th-century Dutch artist Rembrandt. Additionally, he mentioned a short novel written by a Japanese computer program in 2016 that reached the second round of a national literary prize. He also cited Google’s AI company DeepMind, which created software capable of generating music by listening to recordings.
‘AI is no longer just a tool like a paintbrush and easel’
“The point is that AI is no longer just a tool like a paintbrush and easel—things used in the creative process to generate original works that ‘sweat of the brow’ qualify for copyright protection,” Patel said, adding that the newest iteration of AI, the algorithm, is not merely a tool; it is a creator that brings works into existence independently and makes decisions.
Referencing literary classics, Patel discussed how AI-generated content raises questions about copyright. He cited works such as Metamorphosis by Franz Kafka, Pride and Prejudice by Jane Austen, and 1984 by George Orwell. He shared his own experimentation with ChatGPT, where he prompted the AI to generate opening lines reminiscent of Anna Karenina. “What did I do? I wrote none of it. What I did was to create on my own, arguably, entirely originally, the keywords or phrases that generated this result,” he said.
Patel raised a crucial question: “Is there copyright in my own unique arrangement of keywords and phrases? A different set or arrangement may yield a different result.” He illustrated this by noting that when he tried different keywords like “giant whale” and “novel,” ChatGPT produced entirely different results.
“What I have said about literature is equally true about AI-generated images. Using any of the popular AI image generation tools online, one can create seemingly original works based on a unique arrangement of keywords and phrases. Where lies the copyright?” Patel described this situation as a “twilight zone in copyright law,” questioning how one would even begin to bring an infringement or passing off action in such complex circumstances.
Speaking of a case where a university student was failed after it was discovered that his answer sheet was entirely AI-generated, Justice Patel said the incident underscored the growing reliance on AI tools and its implications on academic integrity.
Referring to the ongoing case before the Punjab and Haryana High Court, Justice Patel explored the broader question: Can AI-generated works that incorporate copyrighted material be protected as fair use or fair dealing? He observed that global judicial perspectives on this issue remain unsettled, referencing landmark cases such as Anderson v. Stability AI, Getty Images v. Stability AI, and Author’s Guild v. Google. These cases, he argued, reveal the “shifting sands” of copyright jurisprudence in the AI age.
‘How much is too much’
Justice Patel also raised a fundamental query on the extent of permissible usage: “How much of the original is too much for AI purposes?” This question becomes more pertinent in AI-driven image generation, where uniquely composed texts are used to trigger AI-generated visuals.
The lecture touched on future legislative needs, particularly in addressing deep fakes. Justice Patel batted for the need for “new legislations and building awareness about detecting and recognising deep fakes,” calling it a key challenge for regulators and stakeholders alike.
Concluding his address, Justice Patel left the audience with a thought-provoking question: “Is this entire address of my evening original or wholly AI-generated?” The remark, met with a mix of amusement and reflection, encapsulated the core debate of originality and authorship in the era of AI-driven creativity.
The Professor Shamnad Basheer Memorial Lecture series commemorates the legacy of the late Professor Basheer, a renowned intellectual property scholar, and serves as a platform to discuss frontier issues in IP law and technology.
(With inputs from Live Law)
Why should you buy our Subscription?
You want to be the smartest in the room.
You want access to our award-winning journalism.
You don’t want to be misled and misinformed.
Choose your subscription package
