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INTELLECTUAL PROPERTY RIGHTS AND GENERATIVE AI

INTRODUCTION

The advance of technology is based on making it fit in so that you don’t really even notice it, so it’s part of everyday life.”

– Bill Gates

This quote describes exactly how technology has become subconscious and difficult to imagine life without. Machines were made for tasks tedious to man and had limited capacity. But a recent invention has widened the innovating capacity of machines, and the strive towards convenience has turned into pushing limits, computers nowadays not only stick to the programmed function but broaden their skill to multitask and learn, this gives rise to the need for new regulating laws.

Even though Artificial Intelligence (AI) is a common phrase nowadays, also used by companies like Google, Instagram and other platforms, for optimizing consumer experiences, what does it mean? As the name suggests, it’s the attempt to replicate human-like intelligence artificially in machines, this includes the human nature to learn and evolve. [1] [2]

By repeated programming, and inserting large arrays of data, machines have been taught to learn, connect and replicate. Therefore, there is much less programming by humans as machine learning becomes more prevalent. AI not only facilitates machines in analysing the patterns of users but also enables them to create almost unique results with minimal human instructions. The word ‘almost’ is purposely used to indicate how AI cannot create content without using existing similar data, this is where the question of law arises. Is this AI violating Intellectual Property laws? To contemplate this question, we must take a look at the Generative AI tools and their policies.

DIFFERENT GENERATIVE AI TOOLS

AI was created to be able to take commands and perform tasks, at the touch of a finger, or the sound of a voice. However, recently, it has given rise to a new arena called Generative AI[3]. This concept of artificial intelligence is an algorithm which can generate a variety of material on command.[4] ChatGPT, Midjourney, DALL-E and Adobe Firefly are a few of the numerous generative AI tools available on the internet today. Generative AI is a form of machine learning[5], where the tools with the help of existing data pre-indoctrinated into them, create new content.[6] This content can be created text-to-text, text-to-image, or image-to-video, depending on the tool and the users’ requirements. The question of law that arises with such generative results by an AI is who does this generated intellectual property belong to?

THE QUESTION OF LAW

When an AI uses other material on the internet to create something new for the user as per specific instructions, who will be the owner of the final product? Is it the user, as per whose instructions the result was created? Or the person whose image or literary work is used to create this new content, or is it the person who innovated the AI that performed this very task? In an attempt to find the answer to these interconnected questions, we must look into the multiple layers of the generative process. It’s understood that the process of generative AI essentially, takes place in a three-fold manner, this is of course excluding all the initial steps of indoctrinating data, or programming the AI to take in data from across the internet, learn and create something new using it.

 The three steps taken by the AI to generate results are:

  • The first step is taken by the user when they put in the relevant text or images which they own into the AI tool;
  • This initiates the second step of the process of the algorithm which searches for related texts and images to the data entered across its data feed;
  • The final step is when the AI, with the use of the entered text or image by the user and its data feed, creates new content.

There are very limited legal provisions to determine who this content belongs to, there is no structured legal framework in India as we lack laws that regulate AI[7], but the US Copyright Office has taken a step to solve such issues of copyright. They have launched an initiative to analyse the issues arising due to the booming use of generative AI[8]. At present, the only policy we have that somewhat regulates the copyright issues arising out of generative AI results, are the terms and conditions of the generative AI tools themselves.

GENERATIVE AI TOOLS AND THEIR POLICIES

Adobe Firefly: Adobe Firefly, which is Adobe’s generative AI, creates content from text and image generation. It has made terms which administer the copyright of the generated result with the user. Under its terms of service, it says “As between you and Adobe, you (as a Business User or a Personal User, as applicable) retain all rights and ownership of your Content (or where applicable, you must ensure that you or the Business (as applicable) have a valid license to the Content). We do not claim any ownership rights to your Content.”[9] Therefore, the content that is created by the user with their text or image, belongs to them alone, even though the tool may use other material on their data feed in addition to the user’s input, to create the final piece. Further, the copyright of the software and services provided by Adobe Firefly remains with the company. Accordingly, the consumer can use the content created as they like, but it must not have the Adobe logo. [10] 

Midjourney: Contrasting to the terms of Adobe Firefly, Midjourney, another such AI tool, has terms in place according to which you give up the copyright and ownership of your image or creation. As per their terms of use, any content or work produced by you via its services can be used by Midjourney to reproduce other work.[11] Subject to this, this platform does give the user the ownership of the assets created by them using Midjourney, as long as they are created per the agreement of the previous terms of copyright. Further, the AI tool suggests consulting with a lawyer who may look into the ownership of content created using it as per the current laws of one’s country.

ChatGPT: ChatGPT, the infamous AI among students, assists with text-to-text generation, all the input that the user enters into the AI belongs to them and this OpenAI assigns all rights of the output to the user as well. However, as machine learning takes information which is already in its data feed, the results may not be unique. Therefore, any similar or exact result shown to another user cannot be claimed as your content, because it belongs to the user for whom it was generated.

According to ChatGPT, you may use your content in whichever manner is desired.[12] This platform also provides an option to file a copyright complaint if any of your intellectual property rights were infringed.[13] Due to the misuse of this AI tool, universities in the UK have come together to modify and evaluate their assessment and academic policies to deal with generative AI.[14] These are the different ways in which AI service providers, software companies and universities are taking steps to regulate AI in their capacities. Does India have any laws which can regulate Generative AI?

CONCLUSION: THE INDIAN CONTEXT

New laws are the need of the hour with the rapidly expanding world of technology. In the Indian context, the only instance of the authorship of an AI took place in 2020. A generative AI tool, RAGHAV-AI was given co-authorship with the tool’s creator to an image generated by it using the creator’s input picture.[15] The Indian Copyright Office accepted the copyright application which gave co-authorship to the AI and the creator, Ankit Sahni. In other instances, the laws which regulate crimes committed by AI are the Information Technology Act, of 2000[16], cyber laws, intellectual property and criminal laws. However, there is a significant gap in the legislature when it comes to dealing with specific cases of generative AI and Intellectual Property rights violations which are bound to rise in the near future.

Author(s) Name: Mariam Fatima (Symbiosis Law School, Hyderabad)

Reference(s):

[1] ‘What is AI technology and how is it used?’ (Western Governors University, 31 March 2020) <https://www.wgu.edu/blog/what-ai-technology-how-used2003.html#openSubscriberModal> accessed 10 July 2023

[2] ‘What is artificial intelligence and how is it used?’ (European Parliament News, 20 June 2023 <https://www.europarl.europa.eu/news/en/headlines/society/20200827STO85804/what-is-artificial-intelligence-and-how-is-it-used#:~:text=Artificial%20intelligence%20is%20widely%20used,%2C%20planning%20inventory%2C%20logistics%20etc.> accessed 10 July 2023

[3] ‘What is generative AI?’ (Adobe Sensei) <https://www.adobe.com/sensei/generative-ai/firefly.html> accessed 10 July 2023

[4] ‘What is generative AI?’ (McKinsey & Company, 19 January 2023 <https://www.mckinsey.com/featured-insights/mckinsey-explainers/what-is-generative-ai> accessed 10 July 2023

[5] ‘What is Machine Learning?’ (Google Developers <https://developers.google.com/machine-learning/intro-to-ml/what-is-ml> accessed 10 July 2023

[6] ‘Introduction to Generative AI’ (Google Cloud Tech <https://www.youtube.com/watch?v=G2fqAlgmoPo&ab_channel=GoogleCloudTech> accessed 10 July 2023

[7] Bijin Jose, ‘Who is the author of this content? Generative AI wades into murky legal waters in India’ (Indian Express, 22 June 2023 <https://indianexpress.com/article/technology/artificial-intelligence/generative-ai-regulation-in-india-what-lawyers-say-8667259/#:~:text=AI%20and%20misinformation&text=There%20are%20data%20privacy%20laws,law%20regulating%20AI%20in%20India.> accessed 10 July 2023

[8] ‘Copyright and Artificial Intelligence’ (US Copyright Office <https://www.copyright.gov/newsnet/2023/1004.html > accessed 10 July 2023

[9] ‘Adobe General Terms of Use’ (Adobe Firefly, 1 August 2022 <https://www.adobe.com/legal/terms.html#content> accessed 10 July 2023

[10] Ibid

[11] ‘Terms of Service’ (Midjourney, 8 June 2023 <https://docs.midjourney.com/docs/terms-of-service> accessed 11 July 2023

[12]‘Terms of Use’ (OpenAI, 14 March 2023) <https://openai.com/policies/terms-of-use> accessed 11 July 2023

[13]‘OpenAI DMCA Takedown Form’ (OpenAI <https://docs.google.com/forms/d/e/1FAIpQLSeSq2JNu9g8skmUCXh9968brvVftNa2lNInG_KyNJlBPEuZJw/viewform> accessed 11 July 2023

[14]Sally Weale, ‘UK universities draw up guiding principles on generative AI’ (The Guardian, 4 July 2023) <https://www.theguardian.com/technology/2023/jul/04/uk-universities-draw-up-guiding-principles-on-generative-ai> accessed 11 July 2023 

[15] Sukanya Sarkar, ‘Exclusive: India recognises AI as co-author of copyrighted artwork’ (The Guardian, 5 August 2021) <https://www.managingip.com/article/2a5czmpwixyj23wyqct1c/exclusive-india-recognises-ai-as-co-author-of-copyrighted-artwork#:~:text=Several%20jurisdictions%20worldwide%20do%20not,any%20human%20input%2C%20said%20Sahni. > accessed 11 July 2023

[16] Information Technology Act, 2000