A Few days ago, Akshat wrote a piquing post problematising the MEITY report, which concludes that training Large Language Models infringes and isn’t protected under Section 52(1)(a)(i) of the Copyright Act.
In his casually complex style, he noted:
“What’s missing from the current debate is a crucial understanding: copyright protects against unauthorized sharing of my work with others, potentially depriving me of credit or economic compensation that I could have gotten by sharing it with them myself. In simpler terms, while I cannot express your original expression without your permission, I can certainly consume your publicly available original expression without the same (maybe (or not?), barring paywall circumvention, which isn’t part of this current debate). The law focuses on unauthorized expression of original publicly available content—not its unauthorized consumption, as making content public already waives that claim.”
I agree with Akshat that the MEITY report is “missing” something and have made similar arguments in several of my previous works since 2023. E.g., see this article called Taking Copyright’s “Balance” Too Seriously and this recent one named Faith-Based Fair Dealing: Beware, New Exceptions Ahead (?). Indeed, many scholars have argued that the training of AI is non-infringing work and, therefore, a non-issue for international copyright law. If you haven’t seen it, check out this fantastic piece by Oren Bracha, titled “The Work of Copyright in the Age of Machine Production.” Anyway.
Reading Akshat’s piece and reflecting on my previous works, I don’t think there’s any angle that is innocently missed. The people who wrote the MEITY report very likely knew (and should have known!) that AI training can involve a different kind of “use” compared to the type of usage the Copyright Act authorises owners to exclude. Not every use constitutes infringement—only expressive ones, as Aksaht aptly pointed out. Not every act of storing a work is problematic, either. If no human involvement or communication occurs, why apply the fair use doctrine? Fair dealing, I repeat, is a tricky terrain, and sometimes it’s best not to tread there.
But I sense something more at play here, something beyond what we consider good or bad arguments, or what makes for a desirable or undesirable policy. From my limited readings, I’ve observed the AI and copyright discourse, and it feels like a loop—repackaged arguments, recycled citations, well-worn tropes of author vs. public, incentive vs. access, and innovation vs. regulation. While there are some shifts in interpretation—debates now incorporating the technicalities and workings of AI, discussing whether a use qualifies as fair, its alignment with copyright’s purpose, or invoking the balance trope—few changes reshape the discourse in any meaningful way.
This makes me wonder: Has the discourse around AI-Copyright, the way we think about the issue, been set, controlled and regulated? As Foucault says, “In every society the production of discourse is at once controlled, selected, organised and redistributed by a certain number of procedures whose role is to ward off its powers and dangers, to gain mastery over its chance events, to evade its ponderous, formidable materiality.”
Who knows and how: whether we remain caught in the act of defending or extending our current positions? I attempted to address this question in my upcoming piece for the Journal of the Copyright Society of the USA, where I argue that a “balance” discourse is grounded in a utilitarian episteme—the general system of thought—that shapes the current approach to the issue. However, I feel I have left the issue incomplete. There is a deeper layer here that extends beyond the existence of a discourse.
It is also a question of agency: who controls the discourse itself, how the boundaries of discourse are defined, and who has the authority to do so. There are “epistemic forces” at play which shape not just what is said, but how it’s said and by whom. The questions we ask, the terms we use, and even the arguments we entertain are all filtered through an underlying power/struggle. What I’ve missed, and what I believe Akshat also missed in his post, is that this discourse delimitation is not passive or neutral. It is actively shaped by those who have the power to define the terms of the debate—and by those who have the power to exclude alternative narratives or conceptions from entering the conversation.
So, why assume that an argument or conceptual angle is absent simply because people are unaware of it or fail to appreciate its significance? It could be a deliberate omission. The way copyright and AI discourse is unfolding—especially in the Global North, and now in India and China—isn’t simply a matter of organic, unregulated exchange. The way courts and policymakers approach the issue, and how it’s shaped by the agendas of those in positions of power, is far from incidental. This discourse is actively moulded, steered, and controlled by the dominant players in the field. It’s not a free-flowing debate where the most compelling and convincing claims naturally prevail. No, it’s carefully shaped and restricted by the agents involved—not just by the substance of what’s being said, but by who gets to speak, and more crucially, by the language in which those arguments are framed.
Akshat has highlighted Big Tech’s influence through ChatGPT’s Opt-Out mechanism at SpicyIP, another blog for which both of us write. Similarly, we also know that tech companies are lobbying for easier access to copyrighted works. Meanwhile, authors and rights holders are pushing for licensing or remuneration. The Standing Committee on Copyright and Related Rights of WIPO is drafting a proposal on author remuneration, a key agenda item at the upcoming March 2025 meeting. Civil society groups and scholars are advocating for new research exceptions. Even those who argue that AI training doesn’t constitute infringement still (need to) frame their analysis in terms of fair dealing as a safeguard because that’s how legal arguments are structured in courtrooms and policy debates. The field is structured to work in this way.
On top of this, since the 1980s, we’ve arguably gestated a faith in fair dealing as the default response to every new technology. It has become a kind of conceptual messiah—the go-to solution, regardless of context. At the same time, authors and copyright holders know that some uses of their works are inevitable. They can’t stop them, so they focus on monetisation—hence the push for licensing as a practical compromise.
The real issue isn’t just what arguments are being made, but who is making them, where, and why. This is a symbolic struggle for power, with different groups competing to define the world order and how copyright law fits into it. In turn, there is an effort to define how knowledge governance will happen in the coming years.
That’s all from my end for now. I’ve explored these questions in greater depth in an upcoming piece for the Indian Journal of Law and Technology, co-authored with Luca Schirru, a brilliant scholar from Brazil and a dear friend. I will share that piece once it is published.
Until then,
Thank you for reading. À bientôt
-LV
IP Musings 