Context: 

This editorial is based on the news “Should AI models be allowed to use copyrighted material for training?” which was published in The Hindu. Recently, the New York Times (NYT) filed a case against OpenAI and its backer Microsoft, accusing them of copyright infringement. 

• The NYT has alleged that OpenAI used thousands of its articles to train ChatGPT, a large language model, without permission or compensation. 

Arising Question On AI-Generated Content and Copyright Infringement

• Is using copyrighted content for AI training legitimate?

About Applicability of Fair Use Doctrine

• Fair Use: It is a US concept that permits limited unauthorized use of copyrighted content.
• Balancing Factors: Fair Use involves balancing 4 factors:
  • Purpose and character of use
  • Nature of copyrighted content
  • Amount used
  • Impact on market value of original
• On Transformative Use: Transformative uses (meaning it adds something new or different to the original work) more likely to be fair use
  • OpenAI argues training is transformative and does not replace NYT
  • But verbatim reproduction proven so unclear if fair use defense will succeed.

Challenges in India Related to AI-Generated Content and Copyright Infringement

• No broad fair use doctrine like the US
• Only narrow fair dealing exception for specific purposes
• No clear exception for text/data mining or AI training purposes
• Need to argue training constitutes “research” – feasible but unclear

Way Forward

• Need for Specific exceptions for text/data mining
• Need to expand fair dealing into open-ended fair use
• Time for Judicial recognition of AI training as ‘research’ under fair dealing