Artificial Intelligence or AI

Khurana and Khurana, Advocates and IP Attorneys India

Artificial Intelligence or AI is the intelligence that is produced by machines. AI has become an indelible part of our lives. Our daily life is characterized by the voice of AI like Siri waking us up to scroll on Instagram, WhatsApp, etc. before sleeping. AI exists in different forms like navigation services, chat boxes, social media, e-payments, etc. AI has many benefits like increasing efficiency or work, reducing errors, etc and it helps in the facilitation of almost all sectors like education, healthcare, transport, etc. World Intellectual Property or WIPO has recognized that AI poses certain threats to ascertaining the copyright of the content, patent-related issues, etc which need to be countered. The onset of AI platforms like ChatGPT can generate human-like text and has a wide range of applications including translation, language modeling, and generating content. They are generating fundamental problems concerning intellectual property (IP) law and its application to these emerging technologies. There are special concerns over who owns the content produced by AI chatbots and how this content should be controlled and secured. The content created by humans is protected under the Copywrites Act while the content created by the AI to be protected under the law is yet to be ascertained.


‘Originality’ refers to the work which is done by you and it cannot be imitated without your permission. The word ‘originality’ takes a subjective meaning. Copyright in law protects the ‘originality’ of the work done. Section 13(1) of the Indian Copyright Act 1957 provides that copyright exists in “original literary, dramatic, musical and artistic works”. The act is silent on the definition of copyright and the test to determine the same. Therefore, it is left to the scrutiny of the courts to determine the amount of originality to claim copyright protection.

Over the years, certain tests have developed over time. One of the tests is the Sweat Brow Doctrine wherein the emphasis was completely on the author’s talent and labor. The creator is entitled to such rights on account of efforts and expenses put in by him in the creation of such a work. Over time the approach has changed from the doctrine of ‘Sweat Brow’ to the ‘modicum of creativity’. The US Supreme Court in the case of Feist Publications, Inc. v. Rural Telephone Service Co.3 rejected the doctrine and held that originality exists in that work when enough intellectual imagination and judgment have gone into the creation of a work.

The Supreme Court in the case of Eastern Book Company v. D.B. Modak abandoned the "Sweat of the Brow" concept and adopted the "Modicum of creation" strategy used in the US. The question was whether the head notes constituted "literary works" under the Copyright Act, and were therefore eligible for copyright protection. The court opined that the derivative product should contain individual skill, labor, capital, and a minimum amount of innovation and should not simply be a replica of the original work and in this case, the author applied his mind and exercised his skill. Therefore, headnotes were held to be under the category of copyright protection. Furthermore, the court stressed the significance of applying a broad and liberal interpretation of the Copyright Act's provisions in order to foster creativity and advance knowledge.


From the lens of Indian law, the law is clear that the work must be original and not a copy. This implies that AI while displaying the content would be infringing on the rights of the owners or other AI-generated content. Some AI models, like ChatGPT, create content that is derived from the writings of other authors and drawn from a plethora of literary and other works. It does not make original content instead it extracts the information from different sources and simplifies the same. It is difficult to ascertain whether the content generated by the chat boxes would be considered under the ambit of the copyright act. Also, whether the content generated is copied from different sources and modified would be covered under the law. The law is silent on the question of how would be ownership of the generated content would be determined.


With the onset of the AI technologies like ChatGPT that can generate content from the scratch, the question of copyright infringements needs to be dealt with. The need of the hour is for the legislation to address the emergence of the challenges persisting to ensure that IP rights are respected and protected. The government needs to rise on the occasion and make regulations on the ownership and copyright issue of AI. In a country like India, the infringement of the copyright by AI would affect individuals and the owners of the ideas. The acts must be amended with proper consultation with the stakeholders and experts of the field keeping in mind the dynamicity of the society. WIPO can be an excellent platform where the countries must discuss and deliberate upon the issues. WIPO must provide leadership to formulate the guidelines for the prevention of misuse of Intellectual property issues pertaining to AI.

Khurana and Khurana, Advocates and IP Attorneys

About the Firm

Khurana and Khurana, Advocates and IP Attorneys

AddressD-45, UPSIDC, Site IV, Kasna Road, Greater Noida - 201308, National Capital Region, India
Tel91-120-313 2513, 91-120-350 5740
Contact PersonTarun Khurana

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