Copyright in the Age of Algorithms: Navigating the AI Revolution

Khurana and Khurana, Advocates and IP Attorneys India


The influence of Artificial Intelligence has had a widespread effect on fields like art, film, law, and healthcare in the last few years. Generative AI seems like magic with its ability to create human-like content such as images, paintings, audio, text, video, etc. without human intelligence. These AI software(s) create work after being trained on large amounts of data taken from the web which includes copyrighted materials. The data obtained from the web is often taken without the consent of the Copyright owners. [1]Due to this, there is always rivalry between them and AI developers.

Artificial Intelligence which seems like a remarkable boom but is it really beneficial for people? As AI tools become more prominent, it is raising many complicated questions concerning copyright infringement. Many people believe that output generated by only humans is eligible for copyright infringement but other argues that AI operators may also qualify for the same if the originality of the work is sufficient enough. And now the question arises is, if AI creates content through this process, does this have the protection of copyright for its work?


Does AI have copyright?

Copyright eventually comes up in any conversation that involves the term creative works. The term copyright aims to protect the originality of work in order to foster innovation in the fields of music, literature, and artistic work by giving legal rights to the owner. Copyright protection was extended traditionally only to humans but rapid growth in technology has made it possible to create original work even without human involvement through Artificial Intelligence.

AI uses various algorithms and takes information from a large amount of existing data. Due to this process, the work produced by AI tools may never be found on the Internet. But the work produced contains no human work. There are different views in different countries regarding the copyright for AI-generated work. In the United States, in a recent case of Burrow-Giles Lithographic Co. v. Sarony[2] it was held that copyright laws are such that they are limited to the original intellectual commencement of a human author, and with no human author, their work cannot be protected. But in the states like UK, their copyright laws are wider as they give copyright protection to AI-generated work also. In India, there is no specific laws on whether copyright can be given to AI work also but India has mostly followed the narrower term such as of USA and gives copyright protection to a human author only. In the amendment of 1994 in the Copyright Act of 1957, Section 2(d)(v) was added to define the authorship of such works in order to include computer-generated works. The definition and interpretation of the term “person” here becomes relevant as it determines AI authorship[3]. However, the term person only recognizes the natural person as author until now.

 In the case of Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd.,[4] a traditional approach was observed. The Delhi High Court held that authorship can only be given to the work of a natural person and CBSE being a juristic person, copyright cannot be proclaimed in framing of those question papers. This interpretation was reaffirmed in the case of Tech Plus Media Private Ltd. v. Jyoti Janda[5].  The current Indian law does not include AI-generated work as eligible for copyright. It is up to the law or courts to determine the legal status of AI and decide whether AI can be considered as a ‘person’.  

Section 13 of the Indian Copyright Act, of 1957 states that copyright shall subsist throughout India for “original literary, dramatic, musical, and artistic works.” Here the term originality is not explicitly defined, leaving it up to courts to determine by checking various parameters. AI does not merely ‘cut and paste’ any original data but creates altogether new work by taking billions of already existing data. But sometimes AI produces work “in the style of” of a certain artist. However, in the case of R.G. Anand v. M/S Deluxe Films[6], the Supreme Court held that the copyright owner does not have the legal standing to sue the defendant as only ideas are copyrightable and not artistic style.  

Although the government has acknowledged the significance of AI with the advancement in technology, it becomes crucial for the government to re-evaluate the intellectual property framework to ensure that laws keep up with these developments. AI output can somewhat escape from infringement but the same cannot be guaranteed for data mining operation which is accessed and analyzed for the purpose of training AI.


AI tools and copyright infringement

In the 21st century, technology has made data as valuable as oxygen. Data is very important for AI tools as AI applications rely upon machine learning technique that needs data to train algorithms. AI training provides original, authentic, and refined results. Undeniably, during data mining, analyzing large amounts of data to train AI may result in copyright infringement. While training AI tools, data used may include copyrighted materials. Because of this  AI has often been criticised. This contains problems like unauthorized web scraping. In India, section 14 of the Indian Copyright Act of 1954 provides exclusive rights to the copyright owners for their work. Only the owner has the right to use their work to reproduce, make translations, etc. unless the use of data is permitted by exception.

Section 52 of the Copyright Act, of 1957 states that certain acts are not to be an infringement of copyright if there is fair use of data such as criticism or review of that work or reading or reciting in public of any literary work, etc. Throughout time, the court has judged fair use through these parameters  which constitute[7]:

  1. The purpose and character of the usage. In the case of The Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House and Ors.[8] the court held that if the work is transformative i.e., the work supersedes something original and not merely a substitute, then it can be considered as fair use.
  2. The nature of copyrighted work. If the work is used for commercial purposes, then it becomes difficult to justify fair use.
  3. The substantiality of the portion used concerning the copyrighted work as a whole. In some cases, a small portion of work may be considered fair use. However, if that portion is deemed to be the most memorable or essential part of the work, it cannot be considered fair use to copy it.
  4. The effect on the potential market for the value of the copyrighted work. The effect is minimalized if work is transformative and not substitute. Buyers generally prefer to buy the original artwork of a human artist rather than AI artwork. However, the prices are comparatively higher due to the significant amount of time and effort consumed throughout the process of art created by humans. In such an event, buyers prefer AI-generated artwork due to its affordability.


These four factors that work as legal loopholes certainly have the potential to cause market disruptions in the future.



In conclusion, the intersection of AI and copyright law prompts complex debates. While some jurisdictions extend copyright protection to AI-generated works, others limit it to human authors. Challenges arise from data mining during AI training, potentially infringing copyrights. Legal frameworks, like fair use, attempt to balance rights, but loopholes exist. As technology evolves, governments must re-evaluate intellectual property frameworks to ensure relevance. The 161st Parliamentary Report has recommended the reviewing of IPR policy and the creation of a separate category for AI-related works and rights of AI[9]. The determination of AI's legal status will profoundly impact creativity, innovation, and ownership, shaping the future of copyright law and societal norms. While AI outputs are innovative, the use of AI inputs is a tightrope walk bordering on copyright infringement.


  1. Gil Appel et al., Generative AI Has an Intellectual Property Problem, Harvard Business Review (Apr. 7, 2023), (last visited April 23, 2024).
  2. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 , 58 (1884)
  3. India Today, "ChatGPT: AI-Generated Content Raises Copyright Ownership Complexities in India," India Today, April 22, 2024, (last visited June 23, 2023).
  4. Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd., 1996 (38) DRJ 81
  5. Media Private Ltd. v. Jyoti Janda, (2014) 60 PTC 121
  6. R.G. Anand v. M/S Deluxe Films, AIR 1978 SC 1613
  7. Guardians of Genius: Securing Tomorrow's Generative AI via Copyright Protection, Cyril Amarchand Mangaldas Blog, October 2023, (last visited April 22, 2024).
  8. The Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House and Ors, CS(OS) 2439/2012
  9. India Today, "ChatGPT: AI-Generated Content Raises Copyright Ownership Complexities in India," India Today, September 22, 2023, (last visited April 22, 2024).

Khurana and Khurana, Advocates and IP Attorneys

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Khurana and Khurana, Advocates and IP Attorneys

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Contact PersonTarun Khurana

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