Context: 

The recent decision of the U.S. Supreme Court in the Andy Warhol Foundation (AWF) for the Visual Arts Inc. versus Goldsmith et al. has added more unpredictability to the process of being exempted from copyright infringement liabilities. 

• The judgment is set to have implications for how we regulate a powerful form of artificial intelligence.

Extent of copyright law protection to the artists:

• Copyright law protects the work of diverse artists, including photographers, and provides a set of exclusive rights for artists over their creative output. 
• This includes controlling the manner in which others reproduce or modify their work. 
• However, these exclusive rights are balanced with the rights of the users of such work, including other artists who might want to build on or comment on them, with the help of diverse exceptions under the copyright law.

Exemption from infringement liability:

• Different jurisdictions follow different approaches to exceptions. 
• Enumerated exceptions approach:
  • Countries, particularly those in continental Europe, adopt the enumerated exceptions approach.
  • In this, the use in question needs to be specifically covered under the statute to be considered as an exception to copyright infringement. 
• Open ­ended approach: 
  • Countries like the U.S., follow an open ­ended approach that does not specify exemptions beforehand.
  • There are guidelines about the types of uses that can be exempted.
  • This open­ ended approach to exceptions provides U.S. copyright law considerable flexibility and strength to deal with challenges posed by emerging technologies on the copyright system. 
  • Major limitation: There is no way to know whether an activity will be exempted from liabilities until after litigation.
  • The U.S. courts primarily consider four factors when determining whether a particular use can be considered to be an instance of fair use 
    • The purpose and character of the use
    • The nature of the copyrighted work
    • The amount and substantiality of the portion taken by the defendant
    • The effect of the use on the potential market of the plaintiff’s work.

Judgment in the AWF case:

• The majority of judges of  Supreme Court of USA concluded that if an original work and secondary work have more or less similar purposes and if the secondary use is of a commercial nature, the first factor may not favour a fair­use interpretation unless there are other justifications for copying.
• Impact on AI: 
  • The majority position of the Court could challenge the manner in which many generative artificial intelligence (AI) tools, such as ChatGPT4, MidJourney, and Stable Diffusion, have been conceived. 
  • These models’ makers ‘train’ them on text, photos, and videos strewn around the internet, copyrighted or not.
  • If someone is using a generative AI tool to create pictures using the original work, a court is likelier now to rule against this being described as fair use, taking the view that both the copyrighted work and the models’ output serve similar purposes.

Implications on Indian copyright law:

• There may not be any direct implications for Indian copyright law, as the framework of exceptions here is different. 
• India follows a hybrid model of exception in which fair dealing with copyrighted work is exempted for some specific purposes under Section 52(1)(a) of the Copyright Act 1957. 
• India also has a long list of enumerated exceptions. However, the observations by the U.S.Supreme Court’s decision could have a persuasive effect, particularly when determining ‘fairness’ as part of a fair ­dealing litigation.

News Source: The Hindu