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ChatGPT and Looming Concerns of IP infringement

The sporadic technological advancement of Artificial Intelligence was a variable that could not have been speculated to led us so far to an era of Machine Learning and development of cutting-edge language models. So, let's start with the elemental part of it all itself, AI. AI refers to the ability of a digital computer or computer-controlled robot to perform tasks commonly associated with intelligent beings.1 Marvin Lee Minsky and John McCarthy, two American computer scientists described Artificial Intelligence as a machine, using its own intelligence to perform a task.2 If expressed, in stark terms, it become a question of computers adapting human behavioral patterns.

OpenAI, a prodigious company, focusses on developing safe and beneficial AI endowed with the intellectual processes posing characteristics of human beings.3 They have developed language models such as GPT-4, GPT-3, DALL-E, and transformer models that can be utilized in various applications such as text generation and sentiment analysis.4

ChatGPT is a natural language processing tool which is trained to follow an instruction in a prompt and provide a detailed response.5 It interacts in a conversational way. The dialogue format makes it possible for ChatGPT to answer follow up questions, admit its mistakes, challenge incorrect premises, and reject inappropriate requests.6 It has proven quite commendable in generation of ideas or addition to them. It can also assist as personal recommendations provider.

The concerns arose with the concept of idea generation and expression, with a simple prompt input from the user, regarding the intellectual property rights over the created matter and the capability of OpenAI in infringing them. The idea of copyright infringement protection began to emerge with the invention of printing, which made it possible for the literary works to be duplicated by mechanical processes.7 The present times have presented the infringers with multitude of ways on interfering with the IP rights.

Copyright refers to an exclusive right of the owner or author of the subject matter concerned to exploit their work to the extent of others. The Copyright Act, 1957 empowers the owners of various works underlined in the act by endorsing them with economic and moral rights over their work. It protects their right to original expression, simultaneously balancing it with interests of public.

The Act allows public to build freely upon the ideas and information conveyed by a work.8 Notably, the Supreme Court remarked that there is no copyright in facts as facts are nor created nor have they originated with the author of any work which embodies these facts.9 Section 51 of the Copyright Act, 1957 outlines the scenarios or conditions where the acts mentioned therein would constitute infringement of a copyright. The acts are differentiated into primary and secondary infringements. The existence of a copyright is not affected by registration, but the latter is a necessity for obtaining any kind of remedy against copyright infringement.

Generative AI programs have shown astounding success in the current era, especially in recent years. The praiseworthy creations of developers have made it possible for human beings to create wide range of content such as digital art, video scripts, literary pieces, musical compositions, and much more based on the prompts.

This seemingly limitless ability of creation content raises the dilemma of the right owner to the created work. The highly debated question persists that if someone create content using AI who, if any, would hold the copyright considering that AI is the programmer, the program and creator all in itself.10 At this point, a distinction has been made between the works created by AI and works created with the assistance of AI. WIPO considers that work created by AI may qualify for copyright protection for deemed satisfaction of skill and judgment in originality by the virtue of programming and parameter on which AI compiles and creates the work.11

The broad possibilities of authorship by AI have been issued, yet they are debatable all the same. A copyright is aimed as an incentive for enhancing author's creativity but when the current approach has been thoroughly criticised for protecting machine creativity by giving copyrights to AI generated work. The creation of work presents the concept with the idea of similarities arising between an already existing work against the content generated by AI. As predicted, it would be impossible to held generative AI as an infringer.

A legal person has been enabled by the laws to enjoy copyright protection. The question, now, is whether generative AI like ChatGPT enjoy copyright protection? Does the AI training process count as infringement of copyright laws. Open AI companies and developers have argued that it is a fair use of the work by purpose of it to be transformative and not expressive.

In the case of Nova Production Ltd. v. Mazooma Game Ltd.12, the dispute was regarding the authorship of the video game which was produced by generative AI. UK High Court held the programmer to be the author of the work as he devised the various elements of the game and the rules of logic and who wrote the relevant computer program. In Australia, a copyright is available to the creator of an AI machine in the source code only and not in the work owing to lack of human intervention. This was held in the case of Acohs Pty Ltd. v. Ucorp Pty Ltd., the court declared that a work created without the intervention of a human, by using AI, is not protected under copyright.

Surprisingly, India have relaxed the rules of copyright as evidenced by the recent event where an AI named RAGHAV and its owner have been granted co-authorship for a painting image called 'Suryast' which was produced by the AI itself. This raises a major problem as Section 2(d) of the Copyright Act, 1957 states that for ownership of copyrighted work, the person should fall under the domain of an "author".

An AI is not a legal person and thus can't be granted a copyright. The dilemma further spirals when the act specifies that the person must have created the work. On a plain reading, the work was by the AI but it is not a person, so how was it granted co-authorship in violation of the act.

A plethora of cases have been filed around the world pertaining the issue of uncertainty about ownership of AI generated work. A simple reference to a copyrighted work to the AI can generate a similar content violating the rights of copyright owners without presence of applicable remedies. A large subset of the generative AI platforms are trained using copyrighted work for upcoming trends without any repercussions. The legal systems has been challenged to limit or even define the boundaries of what are derivative works under intellectual property laws and the extension of faire use or fair dealing doctrine.

The ambiguity surrounding the Open AI platforms like ChatGPT came like a sudden hit with the advancement of machine learning. The transformative platform has been used by many users as a means to create original content. The boundless possibilities has made it difficult for defining the boundaries of originality of expression creating a ruckus in the legal industry.

The dilemmas pose a valid threat to the industry at large threatening the creativity of the owners of the work. Moreover, by not fitting into the existing limits of the copyright laws and diverging views is leading to a difference of opinion among the countries. An international solution should be devised to set a standard for treating AI generated work. Although, the absence of creativity bugs an artist who gives his all to the work against a person commanding a program to build the same for him.

  1. Copeland, B. J. "Artificial Intelligence (AI) | Definition, Examples, Types, Applications, Companies, and Facts." Encyclopedia Britannica, 17 Apr. 2023,
  2. What Is Artificial Intelligence (AI)? | IBM.
  3. OpenAI.
  4. Patel, Rakesh. "6 Real-life Examples of Using OpenAI Models." Space-O AI, Feb. 2023,
  5. Introducing ChatGPT.
  6. Introducing ChatGPT.
  7. Ahuja, Virendra Kumar. Law Relating to Intellectual Property Rights. 2007.
  8. Supreme Court of India. Eastern Book Company v. D.B. Modak. (2008) 1 SCC 1.
  9. Supreme Court of India. Eastern Book Company v. D.B. Modak. (2008) 1 SCC 1.
  10. Christopher T. Zirpoli. "Generative Artificial Intelligence and Copyright Law." CRS Legal Sidebar, vol. LSB10922, Version 2, Feb. 2023.
  11. WIPO/IP/AI/2/GE/20/1 REV dated May 21, 2020, para 12.
  12. [2007] ECDR6,[106].

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