Generative Artificial Intelligence

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03-Jul-2024

Introduction

The existing legal framework has many ambiguities and is not well equipped to deal with the challenges that the Generative Artificial Intelligence (GAI) tools will throw up.

Should Generative Artificial Intelligence (GAI) Tools be treated as ‘Intermediaries’?

There is an ambiguity as to whether the GAI tools should be treated as ‘intermediaries’ or should they be treated as mere conduits or as active creators.
In the case of Shreya Singhal v. Union of India (2015) the Supreme Court upheld Section 79 of Information Technology Act, 2000 (IT Act) which grants intermediaries ‘safe harbour’ protection against hosting content, contingent upon meeting the due diligence requirements outlined in Section 3(1) (b) of I.T. (Intermediaries Guidelines) Rules.
In the case of Christian Louboutin Sas v. Nakul Bajaj & Ors. (2018), the Delhi High Court held that safe harbour protection applies solely to “passive” intermediaries referring to entities functioning as mere conduits or passive transmitters of information.
In the case of Large Language Models (LLM) making distinction between platform generated content and user generated content is becoming increasingly challenging.
Also, in the case of AI the liability arises only when the information is reposted on other platforms, mere response to user prompts does not result in dissemination.
In June 2023 a radio host in United States a radio host in United States filed a suit against the Open AI alleging that Chat GPT has defamed him.
Therefore, there are a lot of complications as there is a lot of ambiguity in understanding as to whether the GAI tools should be treated as intermediaries, conduits or active creators.

Should Existing Copyright Provisions be Amended to Accommodate GAI?

Section 16 of the Copyright Act, 1957 specifically provides that “no person” shall be entitled to protection of copyright except by the provisions of this Act.
If the AI generated works are granted protection the question would be whether co authorship with a human would be mandatory.
The 161st Parliamentary Standing Committee Report found that the Copyright Act, 1957 is not well equipped to facilitate authorship and ownership by the AI.
The question of who is responsible for copyright infringement by AI tools remains unclear.
Although the ‘terms of use’ of Chat GPT attempts to shift the liability to the user in case of any illegal output, the enforceability such terms in India is questionable.

What are the Challenges with regard to Right to Privacy and GAI?

In the landmark case of K.S. Puttaswamy v. Union of India (2018) the Supreme Court held that right to privacy is a fundamental right.
This resulted in enactment of Digital Personal Data Protection Act, 2023 (DPDP).
The DPDP Act provides for ‘right to be forgotten’ and ‘right to erasure’.
However, once a GAI model is trained on a dataset it cannot unlearn the information it has absorbed.
Thus, the question is how individuals exercise control over the data can when it is woven into the very fabric of a powerful AI model.

What can be the Way Forward?

Firstly, we should consider granting GAI platforms temporary immunity.
- This would help in gathering data to identify legal issues that could inform future laws and regulations.
Secondly, the process of data acquisition by AI requires an overhaul.
- Developers must ensure proper licensing and compensation for Intellectual Property used in training models.
- Solution could include revenue sharing or licensing arrangements with the data owners
Thirdly, there can be creation of centralized platforms akin to stock photo websites like getty images, which simplify licensing and streamline access to necessary data to developers.

Conclusion

The jurisprudence surrounding GAI is complex and full of ambiguities. There should be a comprehensive re evaluation of the existing digital jurisprudence. The constitutional Courts of the country must ensure that the individual rights are protected.