Navigating the Challenges of Generative AI: A Call for Intellectual Property Reforms in India

Nischal Arvind Singh, Partner,FBDA & IPBI

Generative Artificial Intelligence (AI) has emerged as a ground breaking force, transforming the landscape of creativity and innovation. This technological marvel enables machines to autonomously generate content across various domains, from art and music to literature and software, with limited human intervention. However, this transformative capability has posed unique challenges to Intellectual Property Rights (IPR), specifically in the realms of copyrights and trademarks. In India, as in other parts of the world, the time is ripe to re-evaluate existing IPR laws and enact legislative changes to effectively address the intricacies introduced by Generative AI. This article delves into the multifaceted challenges and explores the necessary legal adaptations required to strike a balance between fostering innovation and safeguarding the rights of creators and inventors.

The Relevance of Generative AI in IP Protection:

Generative AI's relevance in IP protection lies in its capacity to create unique and original works with economic and cultural value. As these works become eligible for IP protection, it necessitates the evolution of legal frameworks to accommodate the distinctive features of Generative AI.

IP protection, designed to encourage innovation and creativity by granting exclusive rights to creators, faces new questions and challenges due to Generative AI:

1. Determining authorship and ownership of works created by Generative AI.

2. Assessing the originality or novelty of AI-generated works.

3. Defining the rights and responsibilities of human developers, users, and beneficiaries of Generative AI.

4. Detecting and preventing infringement or plagiarism of AI-generated works.

Generative AI and Copyright Protection:

The Copyright Act of 1957, the foundation for copyright protection in India, primarily caters to works authored by humans. The advent of Generative AI introduces complexities in the copyright landscape, necessitating significant reforms:

1. Authorship and Ownership: Defining authorship becomes ambiguous with Generative AI. The Act should be amended to explicitly address authorship and ownership, considering the AI developer, user, or AI system as potential authors.

2. Originality: The Act lacks clarity on the originality of AI-generated works. Revisions should specify criteria for originality in AI-generated content.

3. Infringement in the Digital Age: Clear guidelines are needed to address infringement involving AI-generated content, differentiating between intentional human infringement and unintentional or algorithmic infringement.

4. Fair Use and Transformative Works: The Act should offer more clarity on fair use of AI-generated content, creating a framework to assess transformative use.

Generative AI and Trademark Protection:

Trademark protection under the Trade Marks Act of 1999 faces challenges with the increasing capabilities of Generative AI:

1. Possible Infringement: Generative AI can create trademarks similar to existing ones, potentially leading to consumer confusion and trademark infringement.

2. Distinctiveness and Protectability: Guidelines are required to determine the distinctiveness and protectability of AI-generated trademarks.

3. Human Involvement Requirement: Clarity is needed on the role of AI in trademark registration and ownership.

Global Responses:

Countries worldwide are actively engaging with the challenges posed by Generative AI. The European Parliament, the United States Patent and Trademark Office, and China's National Intellectual Property Administration have taken steps to regulate AI, recognizing the need for collaboration between technology experts, legal professionals, and creative communities.

In India, the Ministry of Electronics and Information Technology has outlined a national strategy for AI, recognizing IP as a key enabler and recommending strengthening the IP regime.

Conclusion:

Generative AI has revolutionized creativity, innovation, and intellectual property. India's existing IPR framework faces complexities that demand immediate attention and adaptation. Reforms within the Copyright and Trade Mark Acts should explicitly define authorship, address originality criteria, establish clear guidelines for infringement, and provide guidance on fair use. Striking a balance between protection and innovation will position India as a leader in the global AI landscape, fostering creativity, entrepreneurship, and economic growth while safeguarding the rights of its creators and inventors. An adaptive IPR regime will be crucial for India's continued success in the evolving intellectual property landscape shaped by Generative AI.