Akshat

My reading of Locke and the Lockean Desert Theory of the Right to Exclude

In my reading of the Second Treatise‘s property chapter, I do not find desert absent – that would overreach. Rather, I find desert claims functioning as morally appealing packaging for arguments with instrumental aims. These aims operate at two levels: (i) individual self-preservation in an emerging market society where social relations of production are driven by creation of exchange value for survival in an ever competitive environment, and (ii) social improvement to expand the overall propensity for creating exchange value – what Locke frames as God commanding labor to “improve” land “for the benefit of life,” giving it to “the Industrious and Rational,” and increasing “the common stock of mankind.” Locke writes at a moment when feudal relations are dissolving, and market dependencies are emerging as the structure governing access to subsistence. His move is articulating a theory to enclose commons in favour of someone who is expending labour or sacrifice or effort and being productive – through property rules – while packaging them in the intuitive and morally appealing language of deserving for individual desert, divine command, and natural right – “subduing or cultivating the earth, and having dominion, we see are joined together”; “God by commanding to subdue, gave authority to appropriate”.

The chain runs: God commands self-preservation → self-preservation requires continuous production → production requires continuous labour → therefore labour deserves rights → these rights are enclosures (which provide access to means of self-preservation as a matter of transaction capacity) and hence, property rights. The weight, thus, rests on self-preservation and its consequences (including “preservation of mankind” through increasing the common stock), not on effort or exertion as possessing intrinsic moral value. How self-preservation got linked to continuous production, which got linked to labour, and ultimately provided a connection to “property” which is the bounty to ensure self preservation, is not appropriately explained by Locke or Lockeans.

As the previous piece explained, self-preservation got linked to a need for continuous and self-expanding notion of production (resulting in accumulation) only in a particular epoch where through a period of transition, humans were dis-embedded from their means of subsistence, and were forced to labour and be productive for self-preservation. Productive labour is deemed “valuable” (which I shall explore in the next piece) solely because of the prevalence of this epoch, and not for any intrinsic worth that it embodies. Touting it as god’s command ignores this factual-historical reality. Moreover, Locke, no where explains, why property or enclosure is the rightly “deserved” reward for the “labour” extended, and intuitively assumes it.

When Locke writes that someone who takes “the benefit of another’s pains, which he had no right to” [§34] commits a wrong, this is a desert formulation. But what and why are these “pains”? Notice the grounding: “the penury of his condition required it of him” [§32]; “God commanded, his wants forced him to labour” [§35]. These pains are efforts compelled by preservation necessity in prevalent social relations, where such preservation (remember “safety first”?) increasingly requires productive appropriation creating exchange value. The wrong isn’t purely about respecting individual effort as such – it’s about taking what someone’s survival needs forced them to produce and they need for their own preservation. Desert is real in Locke, but it’s an instrument towards preservation as against a moral reward for effort (for any simpliciter non instrumental moral reason, as a justification with any intrinsic reasoning for itself). One deserves the fruits not because exertion is intrinsically morally worthy, but because one needs them to survive in a market society, and one’s condition (hence god’s command) forced one to produce them, apart from it adding social value to the world (to whatever extent that is). Labor matters because it produces survival-necessary mechanisms in the relevant epoch, not because mixing one’s efforts with objects carries intrinsic moral significance which is de hors any explanation.

Further. §28 states: “The Grass my Horse has bit; the Turfs my Servant has cut; and the Ore I have digg’d in any place where I have a right to them in common with others, become my Property, without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my Property in them.” The servant performs the physical labor of cutting turfs. The servant’s preservation needs drove the effort. Yet the master owns the product as initial entitlement, without any contract or transfer. If property followed from personal desert, the servant should own. Locke could save appearances by invoking contractual transfer, but he doesn’t. He simply asserts master’s ownership. This makes sense if property follows from organizing productive appropriation – the master owns because he directs the productive deployment of labor (his own, his servant’s, his horse’s) toward creating exchange value. In my reading, Locke uses “one’s labor” to mean the labor one owns, not the labor one performs. Some argue this to be the naturalized reminiscent of feudalism still prevalent to an extent when Locke was writing, and not a foundation for employment relations that came much more subsequently. However, I believe, Locke assumes production relations similar to employment from the outset, embedding them in the state of nature itself. The framework concerns productive deployment, not rewarding individual exertion, simplicter. Also, I don’t think this is about slavery or coercion. Chapter IV explicitly distinguishes slavery and clarifies that men sold themselves “only to drudgery, not to slavery” [§24], with masters lacking arbitrary power. The servant relationship represents voluntary employment, yet master still owns as initial entitlement without requiring contractual transfer.

I see a functional role of labor in passages where Locke says labor “puts the difference of value on everything” [§40], “makes the far greatest part of the value of things, we enjoy in this World” [§42], and “puts the greatest part of value upon Land” [§43]. The language is consistently descriptive of function rather than prescriptive of entitlement based on effort, per se.

Locke measures this value through market exchange rather than use-value or subsistence. §43 is “the benefit mankind receives from the one in a year” measured by what it “is worth” versus what “an Indian received from it were to be valued, and sold here; at least, I may truly say, not one thousandth”. This completely orients toward creating exchange value. Even §50’s discussion of money supports this: gold and silver have value “only from the consent of Men,” yet “Labour yet makes in great part the measure” of value [§50].

Locke also says that Americans are “rich in Land, and poor in all the Comforts of Life” [§41] despite laboring, because they lack “improving it by labour.” An American “King of a large and fruitful Territory there, feeds, lodges, and is clad worse than a day Labourer in England” [§41]. Native Americans perform labor through hunting, gathering, and cultivation. They certainly exert effort. Their preservation needs certainly force labor. Yet Locke says they lack “improving” labor and therefore remain poor despite working. Americans labor and remain poor while English day-laborers – who don’t own land and work for wages – enjoy superior material conditions. In my reading then, what matters isn’t effort but productive value-creation organized within specific social relations. In this process he seems to naturalize a conception of “value” that is prevalent and relevant to his time (to the social relations constituting his mindset) as against anything else. What counts as “valuable” labor is determined by whether it’s organized within the market structures emerging in his historical moment, not by effort or productivity in any abstract sense. This is a value theory of labour: desert seems intuitive because labor creates “value,” but what constitutes “value” is itself determined by social relations preceding and constituting “value”.

This connects to a deeper problem with claiming market valuations, through rights to exclude (which are then transacted through licenses or assignments) measure what workers deserve, simpliciter. There are several problems with this approach. First, whether someone develops valuable marketable skills depends largely on morally random factors like their genetic makeup and the family and social circumstances they were born into – things they didn’t choose. Second, what the market values at any given moment reflects social factors that have little to do with moral merit, such as current consumer preferences and what labor or skills happen to be available from other workers. Third, the price something commands in the market isn’t just about a person’s abilities and what society wants; it’s also heavily influenced by various legal and institutional structures that determine how much bargaining power different people have in the marketplace – factors that have nothing to do with what someone morally deserves.

Property rights, in Locke’s text, seem instrumental to me because he says that without appropriation, resources “could be of no use, or at all beneficial to any particular Man” [§26]. “He who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind… he, that incloses Land and has a greater plenty of the conveniences of life from ten acres, than he could have from an hundred left to Nature, may truly be said, to give ninety acres to Mankind” [§37]. This appeals to social consequences: increased “common stock,” “plenty,” more “conveniences of life.” He further links “subduing or cultivating the Earth” with “having Dominion” [§35], showing that he values productive improvement rather than effort per se. The “enough and as good” proviso [§§27, 33] preserves others’ productive opportunities. The common stock principle [§37] makes appropriation legitimate only when it increases general benefit.

Moreover, the spoilage limitation [§§31, 46] grounds property in actual sustenance (self-preservation needs rather than unlimited accumulation. These are preservation-based constraints.

I don’t think desert or reward or deservingness is the justification itself. I think it’s a consequence of social relations that make it compulsory, and hence convincing, to link effort or labour to some kind of reward through conferment of something valuable that can provide a link to click to access resources for needs of sustenance/ self-preservation (be it exchange value through some determined form of fair compensation that is socially provided, or self-expanding market determinant property rights (which have been more so criticized for being a circular justification)). It comes across as convincing rhetorical packaging. Just as “God commanded” or “natural reason” provides intuitive force, labor-mixing language, in a social situation where access to basics are stripped off, and labour is a way of getting access to sustenance, provides intuitive force for property rules which aim towards expanding overall production of exchange value – both for individual self-preservation in market relations and for social improvement through increasing the common stock – without doing genuine desert work in the foundational sense.

And there’s an internal tension: for Locke, the liberty that an individual possesses in his person is inalienable [§23], while the argument from self-dominion is often used to justify conceptions of legal ownership that include the right to alienate. Locke immediately uses self-ownership to create transactable property rights. Self-ownership, in my reading, thus seems to be functional – it explains the technical process by which appropriation occurs in Locke’s theory to create value that fulfills preservation needs and conveniences of life, as against having any intrinsic moral value in itself.

By framing property as arising from isolated acts of individual productive labor-mixing with nature, Locke obscures that what makes labor “productive” or “valuable” is determined by a comprehensive system of social relations – the market dependencies, competitive imperatives, employment structures that capitalism creates. The framework presents isolated individuals mixing labor with unowned nature [§§26-28], when what’s actually happening is systemic transformation of social relations that creates certain behaviors as necessary for survival. What appears as individual choice – to labor productively, to improve land, to enter employment – is actually compulsion generated by transformed property relations that render access to means of subsistence market-dependent, and hence creation of maximum exchange value imperative for survival. Locke is just theorizing a further bait – through enclosures – to make sure labour is performed as it would increase overall common stock that generates value (meaning exchange value).

Thus, the preceding post showed that labor became “valuable” and “productivity” became meaningful only because of specific historical transformation – when market-dependence made labor-for-exchange-value a survival imperative – meaning “value” itself was constituted by these new social relations, not discovered as a natural property or derived from any intrinsic moral worth related to effort or industriousness. It is relevant only because it is labour that is “productive”, and not anything else, that now helps (or is useful to) realize access to conveniences of life (as access to means of subsistence is linked to it), and the more productive one is, the better they sustain in a competitive society. This means desert claims based on labor or productivity only seem intuitively compelling because we’re already embedded in social relations where productive labour equals access to means of survival; the moral force of “labor deserves reward” derives from social conditions where not-rewarding-productive labour with value would undermine the social relations of production as source of access to basics (which feudal lords competing for now “free” peasants conceptualized by dispossessing and claiming absolute control of land (through leasehold arrangements), as explained in the preceding part).

Locke and Lockeans present the causal chain as: Labor (intrinsically valuable and morally worth) → Desert → Property rights. But the actual order, revealed by historical analysis, runs: Transformed property relations → Labor becomes “valuable” (survival-necessary) → Desert claims become intuitively appealing → Used to justify property rules and enclosures (as bounty for labour). Desert presupposes what it claims to ground. Labor doesn’t possess intrinsic value that naturally generates property rights; rather, labor became “valuable” in the relevant sense – only because the transformation explained in the preceding post made it so. When Locke argues that labor-mixing creates property rights, he’s not articulating transhistorical truth but naturalizing historically specific compulsions – theorizing as eternal what the preceding post showed was created – showing that now that productive labour is a compulsion one can make it the subject of enclosure by adverting it some “value” for purposes of exchange enabling it to be a source of realizing the means of subsistence and subsequently, conveniences of life. Are enclosures that are then transactable through exchange the only source of sustenance though?

To conclude, the moral link between labor and desert may be more historically contingent than we typically assume. In pre-capitalist contexts, labor wasn’t primarily understood through desert frameworks at all – people worked the land as embedded participants in households and communities, where “return” meant participation in a shared form of life rather than individually deserved compensation for discrete labor inputs. The desert-for-labor intuition intensifies precisely under specific conditions: when labor becomes alienated and commodified, when survival depends on selling labor time, when work is experienced as sacrifice rather than embedded activity, and when there’s constant anxiety about whether one is receiving “fair” compensation (and whether enclosure/property is the best mode of providing “fair” compensation). In other words, the moral urgency of “I deserve X for my labor” emerges from the very conditions where labor is separated from life and becomes something one must do for others who control resources. The desert framework, rather than being an intrinsic moral truth about productive activity, appears to be ideology generated by the material circumstances of capitalism itself – we must believe labor deserves return because under market dependence, that transactional logic and imputing such “value” to productive labour, is the only mechanism through which we can claim access to subsistence.

The next post will thus explore “value”.

Capitalism ≠ Liberty : Notes from Wood and Brenner

Capitalism ¹ Liberty : Notes from Wood and Brenner

The conventional narrative posits that capitalism arose naturally from expanding trade, urban development, wealth accumulation, or technological advancement – elements supposedly present throughout history, requiring only liberation from feudal constraints which had stumbled their pre-presence. Ellen Wood’s The Origin of Capitalism and Robert Brenner’s Agrarian Class Structure and Economic Development and Property and Progress: Where Adam Smith Went Wrong, reveal a dramatically different story: capitalism emerged from a specific transformation of social property relations in the English countryside, creating for the first time markets operating not as opportunities but as imperatives – mechanisms compelling certain behaviors on pain of elimination. This distinction explains why capitalism emerged specifically in the English countryside rather than in societies with more extensive commerce, and illuminates why capitalism represents not natural liberation of economic behavior but creation of novel compulsions operating through apparently impersonal (and hence, “un-free” contrary to libertarian narrative) market forces.

The Concept

No quantity of accumulation – from theft, imperialism, commercial profit, or even labor exploitation – by itself constitutes capital or produces capitalism. Roman senators, Venetian merchants, Spanish conquistadors accumulated vast wealth without creating capitalism. What transforms wealth into capital is not quantity but social form: property relations generating capitalist “laws of motion” – imperatives of competition and profit-maximization, compulsion to reinvest surpluses, systematic requirement to improve labor productivity and develop productive forces for subsistence. It is when “safety first” gets linked to constant production, fundamentally reinventing social relations of production.

This means capitalism cannot be defined by the presence of markets simpliciter (which have existed for millennia), nor by trade (connecting distant civilizations in antiquity), nor even by profit-seeking behavior (motivating merchants throughout recorded history to “buy cheap and sell dear”). Rather, capitalism is defined by specific social relations that create systemic imperatives for continuous accumulation and productivity improvement

Marx identified the critical transformation in English countryside. In Marx’s account, the critical transformation occurred in the English countryside through the expropriation of direct producers (Wood, p.40). Landlords derived rents from capitalist tenants’ commercial profits. These tenants were actually leaseholders: after absolute ownership was expropriated in lords’ favor, rents were levied competitively upon lease transfers, exchanged for freedom from serfdom and common law rights in King’s Courts. Meanwhile, numerous small producers underwent dispossession and became wage laborers. Marx regards this rural transformation as the authentic “primitive accumulation” not because it created a critical mass of wealth – numerous societies had accumulated substantial wealth through conquest and trade – but because these social property relations generated novel economic imperatives, particularly the compulsions of competition and a systematic requirement to develop productive forces, producing new laws of motion unprecedented in human history. (Wood, p.40).

Polanyi recognized that only in “market society” do economic institutions separate from social relations, with society becoming market’s “adjunct” rather than economy embedded in society (Wood, p.26). Without “protective countermoves,” “human society would have been annihilated.” According to Wood, however, Polanyi’s explanation contained technological determinism – arguing complex machinery necessitated commodifying labor. This, according to Wood, inverts reality. She argues that radical social relations transformation preceded industrialization (Wood, p.29) – Capitalist imperatives drove machinery development, not the reverse.

What transpired in the English Countryside?

Through competitive political accumulation, particularly responding to the emerging French monarchy, Anglo-Norman lords created a more centralized feudal state than existed elsewhere in Europe at that time. By organizing through a national monarchical state that could discipline the aristocracy, English lords achieved unusually high cooperation in operating their decentralized surplus extraction system and in military ventures (Brenner, p.20-21).

A critical institutional innovation was imposing a national common law system binding the lords themselves. This system granted all free persons, including legally free peasants, access to royal courts while excluding unfree peasants and relegating them to manorial jurisdiction. The resulting enhancement of lordly power enabled English lords to experience an economic golden age from the late twelfth through early fourteenth centuries – precisely when French lords faced declining feudal revenues due to peasant gains. English lords imposed tighter serfdom with state assistance, maintaining extraction levels right until the Black Plague (Brenner, p.21).

The catastrophic post-plague population collapse undermined coercive extraction. The drastically altered man-land ratio caused lordly cooperation to collapse under competitive pressures for scarce tenants (Brenner, p.21). The 1381 revolt proved watershed – peasants streamed away, lords competed offering better terms and legal freedom through written manor roll copies (contracts between legal equals). By the fifteenth century’s second quarter, most English peasants had won freedom and paid reduced rents.

This was the social condition that created lords’ existential threat. Unable to reimpose feudal levies, they deployed their “trump card”: the powerful monarchical state they could now repurpose (Brenner, p.22). With Tudor state assistance, lords asserted that customary land remained subject to arbitrary, variable rents upon transfer – transforming it into commercial leasehold, effectively lords’ own property, as against peasant proprietorship that was prevalent in France. State power suppressed sixteenth-century peasant revolts vindicating customary rights in the land, separating the peasants from their means of subsistence. Lords cut short peasants’ push to win not just freedom but fixed payments and inheritance rights, thereby establishing their own property rights, while severing tenants from full means of subsistence, rendering them market-dependent, as the cost of freedom (Brenner, p.22). This is why it is sometimes referred to as “freedom in the double sense”.

Critically, English lords understood themselves as acting within established feudal tradition, merely reaffirming their customary prerogative to impose arbitrary levies on customary tenants. Their objective was not creating a new system but preventing peasants from consolidating possessory rights – fixed dues and inheritance rights – that would eliminate lords’ ability to obtain economic returns from customary land. Given population growth’s inflationary pressures, consolidation of such peasant rights threatened lords’ capacity to extract any meaningful rent whatsoever (Brenner, p.22).

The epochal yet unintended consequence was – subjecting tenants to competitive lease bidding, imposing necessity to abandon subsistence production and adopt capitalist reproduction rules (Brenner, p.22-23). Once rendered market-dependent, emerging farmers had no alternative but to alter their “safety first” strategy – Production and maximal accumulation to win rent-competition was initiated as that was the only way of being safe from being famished. This transformation was fundamentally political – lords inadvertently created capitalism while preserving feudal privileges.

This transformed into what Robert Brenner identifies as a classical landlord-capitalist tenant-wage labor structure (Brenner, p.35). Landholding in England was unusually concentrated. Large landowners controlled an unusually substantial proportion of land under conditions enabling them to deploy property in novel ways (Wood, p.102-103). An unusually large proportion of land was cultivated not by peasant-proprietors but by tenants – a pattern reflected linguistically in the fact that the word “farmer” originally and literally signified “tenant,” as the phrase “farming out” continues to indicate.

What English landlords lacked in “extra-economic” powers – juridical, military, political powers continental lords employed – they compensated for through increasing “economic” powers from controlling land and structuring tenant relationships (Wood, p.102-103). Their income depended on tenants’ capacity to produce profitably and remit rent from that profit. Both landlords and tenants came to depend on the market in historically unprecedented ways merely to secure conditions of their own social reproduction (Wood, p.56).

“Rules for reproduction” captures how property relations determine logic by which actors must operate to survive and reproduce themselves – they constitute individual action. Reduced to market dependence, commercial tenants had no alternative but to adopt “production for exchange,” maximizing profits through specializing, accumulating, innovating (Brenner, p.29). They abandoned peasant rules: producing numerous children for insurance, subdividing holdings. Customary leases ultimately transformed into economic leases, and property itself became an instrument of economic exchange as against ownership by conquest.

The consequence was a highly productive agrarian sector in which landlords and tenants alike became preoccupied with “improvement” – the enhancement of land’s productivity for profit (Wood, p.109). This dynamic initiated an entirely novel historical process: an unprecedented rupture with old Malthusian cycles, a process of self-sustaining development, new competitive pressures that generated their own effects upon the requirement to increase productivity, further concentration of landholding (Wood, p.56). Where other European societies remained trapped within cycles of expansion and crisis, England achieved breakthrough to sustained growth – not through technological superiority or greater commercial development but through transformed social relations imposing systematic imperatives for productivity improvement.

This makes clear that capitalism does not simply liberate pre–existing entrepreneurial tendencies or rational economic behavior. Rather, it creates entirely new compulsions that reshape behavior across multiple domains, production, investment, family formation, demographic patterns. Understanding these transformed rules for reproduction illuminates why the absence of such transformation in other contexts, most notably France, failed to generate capitalist dynamics.

French Contrast

French peasants enjoyed land at fixed rents. Where English landlords obtained rent increases through cooperation in improvements increasing output, French lords extracted larger shares of declining output. The paradox: customary property rights meant poverty and backwardness. In England, absence of secure peasant rights facilitated development (Brenner, p.47). Self-preservation became linked to production and commodifying labor.

The peasant proprietor faced relatively little pressure to operate his plot as profitably or efficiently as potential competitors in order to survive, because no direct mechanism existed through which such competitors could “defeat” him (Brenner, p.44-45). Unlike a tenant, the peasant proprietor need not provide a level of rent equal to what a landlord might obtain from any alternative tenant or face eviction. Unlike the independent artisan within a competitive urban environment, he need not produce cheaply enough to sell goods profitably at market price or face business failure and thus famine, as acquisition of means of subsistence was dependent on the market and not through basic proprietorship or general ability (but specialization). All that survival required for the peasant proprietor (assuming food production) was sufficient output to provide for family subsistence and to meet tax obligations and generally fixed customary rents, which could often be supplemented through wage labor (Brenner, p.45).

The peasant proprietor could resist market pressures simply by maintaining possession, by producing sufficient for subsistence, by supplementing farm income with wage labor as necessary. He need not maximize profit or improve productivity competitively. He could survive through satisficing rather than optimizing. Surplus could be reinvested for luxury, but adopting specialization and more productive mechanisms meant divorcing from means of subsistence, which was antithetical to the “safety first” approach. A market for basics necessarily came with the burden of risk.

Possessing means of subsistence shielded peasants from competition (Brenner, p.66). But why not pursue the gains from trade anyway, as rational homo economicus theory predicts? Here, Brenner identifies “the fatal flaw of Smithian trans-historical micro-economics”: Smith specified gains from specialization but “failed to consider and investigate the other side of the coin – potential costs” (Brenner, p.67). The primary constraint: “safety first.” Bad harvests were unpredictable, leading to subsistence crises. Peasants specializing in non-food crops faced incalculable danger of being squeezed between high food costs and low output returns – risking famine (Brenner, p.68). Given starvation as business failure’s cost, peasants adopted “safety first.” Large families provided insurance but reduced surplus, creating intolerable competitive disadvantage if specializing. No incentive is needed to not be willing to starve – it is an imperative.

Contrarily, In Adam Smith’s explanation, as merchants offer lords irresistible luxuries previously unavailable, lords, at an individual level dismiss retainers, expel peasants, offer commercial leases – producing capitalism. But Smith accomplishes this only by ignoring feudal social-property relations as constraints (Brenner, p.70-71). Smith’s lord acts rationally only if capitalism already exists – he presupposes its existence, reflecting lack of understanding the socially curated and constitutive nature of humans. This is methodological individualism failing to grasp how social structures constrain action.

Opportunity to Imperative

Throughout history, direct land access – through ownership, customary rights (common pool use rights Wood specifically recounts, before “improvement” led to “enclosures”), or traditional arrangements – was given for agricultural producers. In England, access became market-mediated, contingent on competitive success. The emergence of “economic rents” – determined by market conditions, not custom – exemplifies this transformation (Wood, p.103-104). Surveyors calculated “unearned increment” accruing to customary tenants paying below market-determined value – early capitalist rationality reducing social relationships to abstract monetary calculations.

The triad of landlord, capitalist tenant, wage laborer emerged. With wage labor growth, the same process created highly productive agriculture but also increasing propertyless mass constituting both wage-labor force and domestic market for cheap consumer goods – “a type of market unprecedented in history” (Wood, p.106). This mass market of the poor became central to industrial capitalism.

Improvement, Enclosure, and Locke’s ~~Labour~~ Producer Theory

The concept of “improvement” encapsulates the transformation in economic mentality and practice that accompanied agrarian capitalism. The word itself, in its original signification, denoted not merely “making better” in a general sense but specifically meant to render something productive of monetary profit, especially to cultivate land for profit – derived from the old French for “into” (en) and “profit” (pros) (Wood, p.109).

By the seventeenth century, the word “improver” designated someone who rendered land productive and profitable, especially through enclosure or waste reclamation. In the eighteenth century, “improvement” in both word and deed achieved its full articulation. The concept reveals how capitalism transforms the very criteria by which we evaluate resource utilization – from serving human needs or community welfare to generating profit.

An extensive new body of literature emerged in the seventeenth century elaborating techniques and benefits of improvement (Wood, p.109). This literature operated not merely at the technical level but functioned profoundly ideologically, disseminating a novel conception of humanity’s relationship to land and nature. Improvement became a major preoccupation of the Royal Society, which assembled England’s most prominent scientists – including Newton and Boyle – with members of ruling classes such as the first Earl of Shaftesbury and his protégé John Locke, who himself was a follower of Pierre Nicole (Wood, p.109-110).

Improvement did not depend primarily upon significant technological innovations. Generally, it involved new developments in farming techniques or refinements of established ones: convertible husbandry, crop rotation, drainage (Wood, p.110). The agricultural revolution that preceded industrialization was not primarily a technological revolution but a social one. The same techniques had often been known previously; what changed was the systematic compulsion to apply them.

However, improvement signified something more fundamental than novel techniques: it signified new forms and conceptions of property (Wood, p.110). “Improved” farming entailed enlarged and concentrated landholdings. It necessitated the elimination of customary practices that interfered with the most productive use of land – “productive” now defined strictly in terms of marketable output and profit. This was the first showcase of classical liberalism: a curb on regulation (through customary rights) or interference in the “market” to make it pure competition.

Peasants had employed various means of regulating land use in the interests of village communities since time immemorial (Wood, p.110-111). They restricted certain practices and granted certain rights not to enhance landlord wealth but to preserve the peasant community itself, perhaps to conserve land or distribute its fruits more equitably, often providing for the community’s less fortunate members. Distributive thinking was present but would be replaced. These practices reflected an entirely different rationality than capitalist improvement – one oriented toward community reproduction, equity, and sustainability rather than profit maximization.

Even private ownership had typically been conditioned by such customary practices, granting non-owners certain use rights to property owned by others, making it a means of subsistence for most. In England: common lands with grazing rights or rights to collect firewood; various use rights on private land, such as rights to collect harvest leavings during specified periods; traditional arrangements for crop rotation requiring coordination among landholders (Wood, p.110-111). Commons were common.

From the standpoint of improving landlords and capitalist farmers, land required liberation from any such obstructions to their productive and profitable property deployment. Between the sixteenth and eighteenth centuries, increasing pressure developed to extinguish customary rights that interfered with capitalist accumulation (Wood, p.111). This could entail disputing communal rights to common lands by claiming exclusive private ownership; eliminating use rights on private land; or eliminating customary rights of smallholders’ possession without unambiguous legal title.

This reflected a transformation in the understanding of property – from means of subsistence (access to means of subsistence) to means of maximal production to generate maximum profit, for maximum accumulation, to secure subsistence in a competitive environment. In all these cases, traditional conceptions of property required replacement by new, capitalist conceptions – not merely as “private” but as exclusive (Wood, p.111). This represents a first hint of the concept of allocative efficiency. Other individuals and the community required exclusion through elimination of village regulation and restrictions on land use, especially through extinguishing customary use rights. Property had to become absolute, exclusive, and alienable – a bundle of rights deployable solely according to owner’s calculation of profit, unencumbered by social obligations or community claims. This points toward a transformed meaning of property rights. What about the emergence of “intellectual property rights” around this time?

Enclosure is often understood simply as the physical fencing of common land or open fields. However, enclosure signified not merely physical demarcation but the extinction of common and customary use rights upon which numerous people depended for their livelihood (Wood, p.111).

The first major wave of socially disruptive enclosure occurred in the sixteenth century, when larger landowners sought to expel commoners from lands that could be profitably deployed as pasture for increasingly lucrative sheep farming. Contemporary commentators attributed to enclosure, more than any other single factor, responsibility for the growing phenomenon of vagabondage – those dispossessed “masterless men” who wandered the countryside and threatened social order.

A novel form of enclosure movement emerged in the eighteenth century: Parliamentary enclosures (Wood, p.112). The extinction of troublesome property rights that interfered with landlord accumulation now transpired through acts of Parliament. Nothing testifies more clearly to the triumph of agrarian capitalism. The state itself became the instrument for dispossessing commoners and transforming property relations. Is this neo-liberalism? So much so for law being constitutive, as against social relations being constitutive of the law.

Pressures to transform property manifested themselves in court cases, in conflicts over specific property rights (Wood, p.112). In such cases, customary practices and claims often confronted directly the principles of “improvement,” and judges increasingly recognized reasons of improvement as legitimate claims against customary rights that had existed for as long as anyone could recall. Where custom, tradition, and community need had once justified certain rights and practices, profit and productivity now became the standard.

Locke’s property theory, batting for enclosure, hinges on “improvement” (Wood, p.113-114). Locke commences with the proposition that God “hath given the world to men in common” (II.26), but proceeds to demonstrate how individuals came to possess property in particular things (Wood, p.113). Such private, individual property constitutes a God-given natural right. Men own their own persons, and the labor they perform is therefore their property. A natural right of property is established when a man “mixes his labor” with something, thereby removing it from its natural state or altering its natural condition. The theme permeating his discussion was that the earth exists to be rendered productive and profitable, and this is why private property, which emanates from labor, supersedes common possession (Wood, p.113-114).

This was the first articulation of any value – later to be revealed as exchange value – emerging out of production, in an environment where increased production and improvement was the only means of subsistence. Locke calculated “99/100” should be attributed to labour rather than nature. Crucially, Locke considers exchange value, not use value (Wood, p.114). Something particularly revealing emerges upon careful examination of Locke’s argument (Wood, p.114-115). There exists something initially appealing about the proposition that labor constitutes the source of value and the basis of property – it appears to ground property in actual productive activity rather than arbitrary power. However, something profoundly problematic becomes evident. No direct correspondence exists between labor and property because one man can appropriate another’s labor. The transferability notion becomes crucial. He can acquire a property right in something by “mixing” with it not his own labor but the labor of someone else whom he employs.

It appears the issue for Locke concerns less the activity of labor as such than its profitable deployment or its link with production/productivity. In calculating the value of the acre in America, he addresses not the Indian’s expenditure of effort but the Indian’s failure to realize profit. The issue is not the labor of a human being but the productivity, rendering exchange value, and its application in commercial profit (Wood, p.114-115), increasing common stock. (More on Locke in the next post).

What then is Capitalism?

Only in capitalism are legally free direct producers completely dispossessed, surplus labor appropriated through purely “economic” means (Wood, p.99). Workers have common law rights enforceable in King’s Courts yet must sell labor power because separated from means of production. Markets existed throughout history, but capitalism’s market possesses unprecedented function: the principal determinant and regulator of social reproduction (Wood, p.100). Once food production became subject to market imperatives, once land access became market-dependent, foundation was established for generalizing market dependence throughout society. Coercion is hidden and is the real invisible hand.

This unique system of market dependence possesses specific systemic requirements and compulsions shared by no other mode of production: the imperatives of competition, accumulation, and profit-maximization, and consequently a constant systemic requirement to develop productive forces (Wood, p.100). These imperatives signify that capitalism can and must constantly expand in ways unlike any other social form. It can and must constantly accumulate, constantly seek new markets, constantly impose its imperatives upon new territories and new spheres of life.

Crucially, agrarian capitalism rendered industrialization possible, not the reverse (Wood, p.146). English agriculture’s transformation was primarily social revolution – transformed property relations and productive imperatives, not technological. Techniques like convertible husbandry, drainage, crop rotation weren’t radically novel but systematic applications of known methods. What changed was social imperatives compelling their systematic application. Technology didn’t create capitalism; capitalism created the imperative for technological improvement. And this does not mean technology would not have developed but for capitalism, but just that it would have developed over a longer period of time de hors forces of compulsion.

In pre-capitalist societies with markets, the market was opportunity to invest surplus. But it didn’t determine social reproduction or impose systematic compulsions. Only when property relations transformed such that access to means of production and subsistence became market-dependent did the market become imperative– a force commanding behaviors under threat, generating capitalism’s distinctive dynamics: relentless productivity improvement, systematic accumulation, continuous revolutionizing of production, constant expansion, at the costs of whatever comes in it way – subsistence of those who are unable to win this competition, environmental impact, impact on human development, etc.

If capitalism arose from particular historical transformations rather than inevitable progress, it can potentially be transformed through creating different social relations. Capitalism is not history’s endpoint but a specific mode of production with a specific origin that may have a specific end.

Beyond Market Imperatives: Rethinking IP, this World IP Day.

Today is World IP Day – that annual celebration where global institutions glorify a system supposedly designed to “encourage innovation” and “reward creativity.” As much as I’d love to join the festivities, I find myself unable to raise a glass to a system that has betrayed its original purpose.

Let me be blunt: modern intellectual property regimes have morphed from shields meant to protect creators from market pressures into weapons that deepen their market dependency and actively distort cultural production. The recent Daagarvani case in India, where a court granted relief against a song composed in the same traditional Ragas as another, demonstrates how copyright’s expansionary logic now threatens centuries-old cultural practices and practitioners. Meanwhile, the rise of AI systems trained on vast datasets of human creativity intensifies these contradictions potentially, through arguments by creators and publishers facing existential crises, by commodifying creative capacity itself rather than merely creative works.

But these examples are merely symptoms of a deeper theoretical problem – one that demands we reconsider the fundamental nature and purpose of intellectual property itself. What if IP’s current form isn’t an inevitable or natural development, but rather a historically contingent arrangement that has become unmoored from its original protective purpose?

From Protection to Commodification: IP’s Betrayal

Let’s get something straight about IP’s origins. Those early regimes – from the Venetian printing privilege of 1469 to England’s Statute of Anne in 1710 – weren’t designed to “incentivize” creation through market rewards. Their actual purpose was to protect creators and disseminators from emerging market pressures so they wouldn’t be discouraged from producing socially valuable expression. It was to enable them and for their economic security in a market society (not luxurious accumulation)

The Statute of Anne explicitly speaks of preventing the economic “ruin” of authors and their families – not maximizing creative output or maximal “monetizing” at the cost of access to such intangible resources. Early patent systems emphasized protection for investments already made, not incentives for future innovation. These systems were fundamentally about providing basic economic security for cultural producers in increasingly competitive market environments.

But here’s where things went sideways: by conceptualizing this protection in terms of market-compatible property rights rather than direct provision or alternative support systems, these regimes inadvertently laid the groundwork for the commodification of cultural expression and information itself. What began as attempts to shield creators from market pressures gradually transformed into mechanisms for deeper market integration and expansion.

This transformation stemmed from several theoretical misconceptions. First, a fundamental error similar to what Dianne Elson identifies as adhering to a “labor theory of value” rather than developing a “value theory of labor” – naturalizing the relationship between labor and value, creating the illusion that market value is attributable to intrinsic qualities of creative works rather than to specific social relations that impact labour used to produce such output. Second, the “pre-social creativity” myth that ignores the fundamentally social and communicative nature of cultural production. Third, “physicalism” that inappropriately attempts to derive normative conclusions about nonrival informational resources from physical descriptions of property relations.

Over time, intellectual property’s conceptual framing shifted from protection against market pressures to “encouragement” through market incentives. Its institutional form increasingly converged with conventional property paradigms despite fundamental differences between informational resources and their non-rivalrousness and physical goods. Its scope and duration dramatically expanded through legislative amendments and judicial interpretations, and its relationship to creative practice became increasingly distorted.

The Distortionary Effects: How IP Warps Cultural Production

This market-based structure generates several distinctive distortionary effects that undermine IP’s purported goals. Let me walk you through three crucial ones:

1. The Price-Tag Effect: Barriers to Access and Participation

By creating artificial scarcity for inherently non-rival resources, IP enables pricing information goods above their marginal distribution cost (which for digital goods approaches zero). This pricing structure excludes potential users whose ability to pay falls below the market price but above the actual cost of providing access.

Beyond efficiency concerns, this raises profound questions of distributive justice and cultural participation. When access to informational resources depends primarily on willingness and ability to pay, distribution inevitably skews toward those with greater financial resources regardless of creative potential or social contribution.

2. The Privilege-Expanding Effect: Whose Preferences Count

Market-based allocation through IP amplifies preferences of economically advantaged groups while marginalizing others. Because markets respond to willingness and ability to pay rather than need or potential social contribution, investment naturally flows toward satisfying demands of affluent consumers while neglecting less economically powerful communities.

This manifests across various domains – from pharmaceutical research prioritizing wealthy-world conditions over “neglected diseases” affecting billions, to entertainment industries concentrating investment in products targeting demographics with greatest disposable income while culturally significant but less commercially viable expressions receive minimal support.

3. The Distortionary Effect: What Gets Produced

Perhaps most troublingly, IP systems create systematic biases regarding which types of creative activities receive investment and development. This “distortionary effect” operates through market mechanisms that value certain characteristics of informational goods over others, independent of their intrinsic merit or social contribution.

IP’s reliance on excludability – the capacity to control access and use – as the primary mechanism for monetizing informational goods creates inherent preferences for innovations and creative works that exhibit high excludability and appropriability through existing property rights, regardless of their social value compared to less excludable alternatives.

Traditional Justifications and Their Limits

Before proceeding further, we should recognize that defenders of strong intellectual property rights have marshaled various theoretical justifications for exclusive control. These fall into several main traditions:

Labor-desert theories, often traced to John Locke, suggest creators deserve compensation for resources they produce through their labor. However, with nonrival resources, labor theories at most justify claims to fair compensation, not exclusive control. When someone creates information, preventing others from using it cannot be justified as protecting the creator’s own use (which remains unaffected by others’ use) but solely as protecting compensation interest.

Personality theories, associated with continental European traditions, emphasize the intimate connection between creators and their works. Yet the personality interests these theories identify – primarily concerning recognition of authorship and integrity – do not inherently require restricting others from using creative works. These interests can be protected through attribution and integrity rights without granting comprehensive control.

Utilitarian theories justify IP through its role in addressing market failures in information production. However, this account provides no intrinsic justification for exclusive control over information – only adequate compensation to maintain production incentives. This compensation interest doesn’t inherently require exclusive rights but merely sufficient revenue to recover risk-adjusted development costs plus normal returns.

Democratic theories evaluate IP by its contributions to robust democratic culture and equitable access to conditions of self-determination. These approaches typically support limitations on exclusivity to promote widespread participation in cultural meaning-making.

As Profs. Talha Syed and Oren Bracha remark, none of these traditions provides compelling first-order justification for exclusive control rather than appropriate compensation or recognition. The strongest remaining defense lies in second-order institutional considerations – IP’s role in harnessing decentralized market signals of information to guide innovation and prices. Yet this justification remains parasitic on first-order values and contains inherent expansionary tendencies.

The Expansionary Logic in Action

The Indian classical music case of Ustad Wasifuddin Dagar v. A.R.Rahman and Ors. exemplifies IP’s inherent expansionary logic. The court granted relief against a song sharing ragas with another composition, ignoring that such similarity is both inevitable and desirable within this tradition. Every raaga has rules making perceivable similarity between compositions inevitable, including characteristic phrases called “pakad” that signify the raaga’s identity.

This case isn’t an isolated incident but part of a systematic pattern where exclusionary rights expand beyond justifiable boundaries to encompass elements that should remain in the cultural commons. The same dynamics appear in hip-hop sampling, documentary filmmaking, fan fiction, and countless other creative practices that necessarily build upon existing materials.

Similarly, the rise of AI systems intensifies these contradictions by simultaneously drawing upon vast reservoirs of human creative expression while potentially displacing human creators from traditional economic roles. AI development creates economic interest in previously uncommodified aspects of creative expression like patterns, styles, and techniques, completely displacing the safeguards against commodification of information and ideas embedded within doctrine.

These examples illustrate the broader theoretical problem: IP regimes contain an inherent expansionary dynamic that gradually disconnects them from any coherent normative foundation. Once information becomes commodified through property rights, it becomes subject to the ceaseless pursuit of exchange value, generating constant pressure to expand protection regardless of diminishing social returns, completely in ignorance of the communicative and non-rivalrous nature of these resources.

From Incentives to Enablement: A Vision of Human Flourishing

To understand the true underlying purpose of intellectual property, we need to distinguish between two fundamentally different approaches to meeting human needs: self-preservation focused on securing basic necessities versus self-love potentially expanding into unlimited accumulation.

Jean-Jacques Rousseau’s political philosophy offers crucial insights for reconceptualizing intellectual property beyond market paradigms. Rousseau directly challenged emerging commercial society by distinguishing between apparent freedom within market relations and substantive freedom through social solidarity. His analysis illuminates how negative liberty focused on protecting market transactions fundamentally differs from positive liberty providing conditions necessary for meaningful self-determination and creative flourishing.

Rousseau recognized that genuine needs in social contexts are intersubjectively determined rather than individually defined without limit. He distinguished essential needs from luxuries, rejecting commercial society’s “compete or die” logic that transforms preservation requirements into endless accumulation pursuits. This distinction grounds his critique of financial systems that place “public good and freedom on the auction block,” making “venal souls” through constant pressure toward accumulation beyond actual necessities.

Rousseau thus emerges as an early theorist of human flourishing approaches contrasting with individualistic welfare maximization. He explicitly distinguished wealth from prosperity, arguing “it is better to live in plenty than in opulence.” His political economy focused not on incentivizing through competitive pressures but on socially enabling through provision of conditions necessary for meaningful freedom and agency.

Applied to intellectual property, Rousseau’s insights suggest shifting focus from market-based incentives to social provision of conditions necessary for creative flourishing and enablement. Rather than relying primarily on exclusionary rights enabling market success, this approach would directly address creators’ basic security needs while ensuring broader access to cultural and knowledge resources necessary for creative development.

Here’s the fundamental insight: humans don’t primarily require monetary incentives to create – they require not being disincentivized by economic insecurity. The problem IP purports to solve isn’t fundamentally about motivating otherwise reluctant creators through financial rewards, but about enabling creative expression by removing the barriers of economic precarity.

By reframing the issue from positive incentives to removing disincentives, we can envision alternative institutional arrangements that secure basic creative needs without resorting to exclusionary rights that ultimately subject creators to market dependencies.

The theory I propose, distinct from rewards or incentives justifications, is that copyright is a historically specific tool (in the age of capitalism) of enablement for human flourishing. It is a tool meant to ensure that those who wish to expressively produce are free to do so without worrying about fulfilling their basic economic needs in a modern market society – a tool to affirmatively protect those who wish to produce expressions from involuntary subjection to market imperatives.

This human enablement framework encompasses two complementary dimensions: negative freedom from market dependency and positive freedom to participate meaningfully in cultural production. Freedom from market dependency involves reducing creators’ reliance on commercial success for basic economic security, while enabling positive freedom requires developing capabilities necessary for meaningful creative participation through education, exposure to diverse cultural materials, and institutional support.

A Research Agenda: Denaturalizing and Dereifying IP

Before discussing specific reforms, we need a robust research agenda to reconceptualize intellectual property. I suggest employing two critical methodological tools from the Law and Political Economy tradition:

Denaturalizing is a mode of critique that attempts to show the pre-conditions of the existence of a legal tool and delimit the conditions of possibility of the field itself. By denaturalizing intellectual property’s social relations and examining its contextual emergence, we can uncover the historically specific social dynamics that shaped this legal tool, providing both an explanatory and programmatic frame for understanding its purpose and development.

Denaturalization allows us to understand IP not as a mere coincidence or divine realization, but as a consequence of the imperatives of a market society – its purpose not to form markets but to protect from market imperatives, ensuring fair recompense for basic necessities and risk-adjusted production costs.

Dereifying follows from denaturalizing, challenging the presumption that ownership through exclusionary rights are the only monolithic tool to further IP’s policy objectives. Through dereification, we can conceptualize IP’s commonly used tools through a relational understanding – tweaking scope, duration, and applicability in contexts where competing fundamental social interests like education, research, and meaningful cultural participation outweigh individual enablement claims.

This approach brings to light alternate tools, including non-market alternatives like public funding, compulsory licensing, remunerative levies/tax, and general social provision of access to basics and creative agency, calibrated along a continuum of contexts to embed IP’s social relations. Moreover, it allows us to inject proportionate priority, tailoring tools and remedies to prioritize interests of those who genuinely need legal tools for enablement due to no fault of their own.

Scholars and practitioners must embrace these methodological approaches to develop a framework that can meaningfully address both current distortions and emerging challenges like AI. This isn’t merely an academic exercise – it’s essential for preserving meaningful spaces for human creativity in an increasingly commodified cultural landscape.

Practical Reforms: Scaling Back Exclusionary Rights

Building on this theoretical foundation, some specific structural changes to copyright doctrine and policy could be:

1. Limiting the Derivative Right to Different Forms/Mediums

The derivative right should only cover adaptations in a different medium or instrument of expression and perception – like adapting a book to a film, not creating another book based on the original. This would eliminate excessive licensing costs for genres that inherently build upon previous works in the same medium.

2. De-fragmenting the Reproduction Right

Courts should shift from analyzing similarity of fragments or elements to examining whether the allegedly infringing work substitutes for the overall aesthetic experience of the original. This would ensure that works which inevitably contain similar elements (like compositions in the same Raaga) aren’t disadvantaged by either excessive licensing costs or reduced appropriability.

These structural changes would reduce the potential to appropriate the highest possible economic value from single highly excludable expressions. However, they would enlarge the cultural breadth and diversity of expressions receiving investment – creating a more egalitarian starting point for cultural creators regardless of their chosen genre or tradition.

3. Beyond Exclusion: Alternative Support Mechanisms

We should also consider diverse institutional arrangements supporting creative flourishing beyond exclusionary property rights alone:

Direct public funding through grants, fellowships, and institutional support
Procurement systems involving public or collective purchasing
Prize systems rewarding valuable contributions without restricting subsequent use
Community-based support through patronage, crowdfunding, and membership models
Liability rule approaches allowing use with mandatory and fairly determined compensation- something embedded within our Copyright system in the name of statutory and compulsory licensing.

Different creative contexts require different support structures depending on their specific characteristics and needs. This institutional pluralism recognizes that the one-size-fits-all approach of exclusionary rights isn’t appropriate across diverse creative traditions.

Conclusion: Reclaiming IP’s Protective Purpose

On this World IP Day, rather than uncritically celebrating a system that has increasingly betrayed its original purpose, let’s commit to reimagining intellectual property as a tool for human enablement rather than market subjugation.

Intellectual property regimes present a curious paradox: they purport to promote innovation and creative expression by providing creators with economic security, yet they deploy mechanisms that ultimately deepen creators’ dependency on market success rather than insulating them from market pressures. This fundamental contradiction remains largely unexamined in mainstream intellectual property discourse, which typically accepts market-based approaches without interrogating internal tensions.

By understanding IP as historically contingent rather than inevitable, we can identify points of possible transformation. By dereifying its current institutional forms, we can develop a pluralistic approach calibrated to different contexts and cultural practices.

This reconceptualization becomes especially crucial as AI intensifies IP’s contradictions. The challenge now extends beyond protecting specific works to preserving human creative agency itself. A human enablement framework offers promising avenues for addressing these challenges by focusing on creative capacity rather than mere market incentives by commodifying “works” which potentially leads to the negative effects outlined above.

Implementing this vision requires embedding intellectual property within broader social frameworks: substantively anchoring it in democratic values rather than market efficiency alone; conceptually maintaining doctrinal integrity against market-driven distortions; and globally breaking property’s monopoly on institutional imagination by developing complementary support mechanisms beyond exclusionary rights.

By focusing on securing basic needs rather than maximizing returns, by developing alternatives to exclusive rights where appropriate, and by structurally limiting exclusionary rights to prevent their inherently expansionary tendencies, we can create legal frameworks that genuinely support diverse creative traditions while fostering broader cultural participation.

Only then can we resolve the fundamental contradiction at the heart of modern intellectual property and reclaim its original protective purpose.

Would leave you all with the best IP paper I read this last year- “A Law and Political Economy of Intellectual Property” by Profs. Talha Syed and Oren Bracha.

AI and Copyright- MEITY Sub-Committee Report

In India, there has been significant discourse lately surrounding copyright concerns in the development of Generative AI models, the most recent contribution being MEITY subcommittee’s Report on AI Governance in India, which declares that storing and copying works to create datasets for training foundation models constitutes infringement. Moreover, it isn’t protected under Section 52(1)(a)(i) of the Copyright Act.

While I have written extensively about these issues elsewhere, this piece focuses on what I believe is a fundamental misdirection in this debate—from both sides—whether it’s those claiming training-purpose usage is infringement or those arguing it constitutes “fair use.” Let us not even touch fair use. Training models using copyright works (including storing or making copies of them for training a model) is not infringement of any exclusionary right provided under Section 14, period.

The MEITY Sub-Committee’s broad conclusion that models infringe copyright holders’ exclusive rights simply by storing and making training copies of publicly available copyrighted works is deeply problematic. This stance, if accepted, would fundamentally overturn our understanding of copyright law. Here’s why:

Consider the implications of this statement. If the mere act of making and storing a copy constitutes copyright infringement, wouldn’t you be liable for printing or saving an article from my blog to read later? Could I legitimately sue you for that? If you showed it to someone else or uploaded oit n a public drive, then maybe, but otherwise could I?

The essence of copyright—whether it is reproduction, distribution, performance, or other rights—lies in the exclusive ability to express one’s original expression, translating to an ability/ or a right, to stop someone else from expressing one’s original expression. It is crucial to understand that to express is fundamentally a relative concept involving two human beings– the human “expresso” and the human “consumer” of that expression. Copyright claims, in respect of publicly available works, are only available, under law if one has substituted the position of the expressor (by becoming the expressor of someone else’s original expression)- not if someone is a mere consumer of the expression. This relative relation does not exist in AI training. It merely involves consumption of the expression of the original creation by the model to learn and train itself.

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.

This is why I struggle to understand how storing or copying for purposes that don’t involve sharing/expressing the original expression, or a substantial part thereof with third parties (what academics often call non-expressive, consumptive copying) could be considered infringement at all. This question needs to be addressed before we even enter the fair use debate, which only becomes relevant after establishing prima facie infringement. If such copying were illegal, simply printing publicly available web pages for one’s learning/consumption would constitute copyright infringement. If I store content for learning, which I might use to produce a potentially competing article, is that infringement? By this logic, academia (a commercial enterprise), which more often than not requires storing and printing publicly available articles for learning the ideas embedded within them, would equal to an enterprise built on infringement of copyright. Fortunately (and thank god for that!) that is not the case.

Developers of models aren’t exposing any humans to the expression of the inputted works—they’re creating an alternate expression. If this alternate expression substantially resembles the original expression used for learning, that will indeed constitute infringement, but that’s fundamentally different from claiming that storing and copying for model training purposes is inherently infringing.

In short – (i) no, copyright is not the answer for your existential crises, and (ii) it is a “scope of rights” issue, not concerning itself with a backend defense of fair use.

The sooner we understand this and get over copyright, the sooner we will look for other arenas that actually resolve the existential concerns.

I welcome your thoughts on this perspective.

Indian Copyright Law and Generative AI: Part 4:

Who is liable for infringing outputs?

In Part 3 of the Series, we explored the output side of things – showing how if the output generated by the Generative AI model is substantially similar or a trivial alteration, or an adaptation in a different format of a work, it may infringe the rights of the copyright owner. However, who will be liable? The user or the Model developer? or both? or neither? These questions are essential to consider given the Model itself lacks legal personhood for imputing any intent, liability, or damages – and responsibility for infringement has to be attributed to a human/corporation.

There are three distinct situations that arise here:

Would liability be on the model developer/service provider for direct infringement, as direct copyright infringement is a strict liability offence?
Would liability for direct infringement be on the user of the model, for imputing certain prompts which yield infringing outputs, and liability for indirect infringement be on the model developer/service provider?
Would both the model developer and the user be jointly liable for direct infringement?

The answer to each of the queries rests on a host of factual considerations, some of which are as follows:

A situation where the developer of the model has taken all objectively plausible, practically feasible, and technologically available steps to ensure that the model does not regurgitate memorizations or output that is substantially similar to any of its input training data.
A situation where the user/prompter has used prompt injections or the model as a copy-machine, to provoke prohibited regurgitations, exploiting the inherent vulnerabilities/fallibilities of LLM Systems, at the current state of technology,[i] and in violation of the user terms and conditions.
A situation where even upon normal/generic prompts, the model generates regurgitations of its memorized training data set, narrowing down possible outputs.
A situation where a model is specifically built to produce the inputted work in a different medium/format of expression (for instance a literary work to a dramatic work) and allows attachments to be uploaded by prompters who can upload a copyrighted script or work.

When Developer may be liable for Direct Infringement

Section 51(a)(i) provides for direct copyright infringement where copyright is deemed to be infringed if any person does anything, without a license from the copyright owner, the exclusive right to do which is, by the Copyright Act, conferred upon the copyright owner. The provision, which is a strict liability provision, however, like other strict liability provisions requires “causation”, i.e., a “but-for” cause pointing towards volition.[ii] Even around the world, volitional conduct has been deemed to be an essential component of direct copyright infringement, as compared to indirect – for instance, a copy shop that lets customers operate photocopiers is not a direct infringer, but a copy shop that makes infringing photocopies is.[iii] Thus, direct infringement, would imply a degree of “authorization” or “control” over the output produced in the hands of the developer.

In respect of the various factual situations considered above, as Generative AI is a self-evolving tool[iv], which continues to learn and expand its training data set through user prompts, beyond the control of the developer who merely trains it to understand “how to learn”, a volitional requirement is unlikely to be met especially when the developer has taken all objectively plausible, practically feasible, and technologically available steps to ensure that the model does not regurgitate memorizations or output that is substantially similar to any of its input training data. However, if the model is specifically trained to produce adaptations of inputted content (where often copyrighted content is allowed to be attached), or produces memorized regurgitations even on generic prompts, a volitional requirement may more probably be deemed to be fulfilled to attract direct liability.

A contrary view, however, could be that the inherent vulnerability associated with LLMs where they may be manipulated to produce infringing content, makes them an inherently dangerous avenue for copyrighted works. Hence, all responsibility ought to be on the developer choosing to run the platform to ensure no infringing content spurs out of its usage. However, in light of the lack of direct causation, or loss of life and limb, the strength of this argument is arguably thin.

When Developer may be liable for Indirect Infringement

When direct infringement claims fail due to lack of causation/volition, the focus often shifts to the indirect infringement standard. Section 51(a)(ii) of the Copyright Act provides that permitting for profit, any place for communications that infringe copyright would constitute indirect infringement, unless the operator was unaware or had no reasonable ground for believing such communication to be infringing.

“Reasonable ground for believing” has been interpreted by Indian Courts, in the context of the Copyright Act, to mean “consciousness or awareness and not mere possibility or suspicion of something likely.”[v] Moreover, in respect of automated platforms, it has been held that authorization/approval from a person or authority is essential to connote knowledge.[vi] In other contexts as well, the mere possibility of harm, without the existence of facts that show knowledge, has been held to be insufficient to connote knowledge for the purposes of imputing liability.[vii] Moreover, in an analogous context of banking, it has been held that for determining reasonable belief, officers of banks are not required to be amateur detectives, albeit they can be attributed the degree of intelligence ordinarily required from a person in their position while evaluating cheques for violation of the Negotiable Instruments Act.[viii]

Applying this in the context of Gen AI developers, in factual situations (i) and (ii) above, where the developer has taken reasonably possible steps to eradicate the regurgitation of substantially similar output and disallowed prompts that exploit the inevitable and inherent vulnerability associated with LLM technology at its current state, it is improbable that developers would be held liable for infringing outputs. In other words, the mere possibility of generating substantially similar outputs, due to the inherent vulnerability of LLMs in spite of the developer taking reasonable care in designing the product, would not connote knowledge or reasonable belief for indirect infringement.

To determine “reasonableness”, the classic “risk-utility” test in product-design liability could be adopted – weighing whether the burden on the product developer to eradicate the harm outweighs/is outweighed, by the gravity and the possibility of harm as well as the utility of the alternative design available that reduces the harm. The factors considered in such weighing include – (i) usefulness and desirability of the product; (ii) utility to the public as a whole; (iii) gravity of danger posed; (iv) scientific and mechanical as well as economic feasibility of an alternate design that is safer; (v) user’s ability to avoid harm by exercising care in use of the product including effect of instructions or warnings; (vi) developers ability to eliminate the danger without impairing the usefulness of the product or it being unduly expensive; and (vii) feasibility of alternate design.[ix]

Thus, so long as the developer has taken care to ensure that infringing outputs are not produced in the reasonable course of the model’s use and are only produced when the inherent vulnerabilities of the model are exploited by the user, on the basis of the risk-utility test above, it cannot reasonably be expected that the product developer is to eradicate harms driven by such uses – shifting the focus of liability to the user. In other words, so long as the Model/Product is not built willfully blind to its inherent fallibilities and an attempt to remedy the possibility of copyright infringement at the output stage to the extent technologically and economically feasible/possible is evident, it is unlikely that the developer of the Model would be held liable.

When User may be liable for Direct Infringement

It is the user’s specific interaction with the model that leads to the output generated. The user’s instructions add a filter that steers the model towards the output. Without the user’s specific directives, the potential of the model to generate infringing content remains just that – a potential.[x] The questions leading to the answer become as important as the answer itself. This is particularly relevant in a time where prompt engineering has been considered equivalent to a form of creative practice that deserves copyright protection due to its potential to specifically induce the model to create certain outputs.[xi] Therefore, in case of infringing outputs that are a result of very specific prompts, or even prompt injections (that is manipulating the model to answer certain questions it initially is refusing to answer by prompt engineering, thus capitalizing on the inherent fallibility of LLM Systems in contravention of the user terms and conditions of these products), the liability for direct infringement most probably would shift towards the user. Thus, it is important to account for the user’s actions on the product when imputing liability, especially because of the lack of ability of the developer to control the outputs produced by the self-evolving tools of Generative AI, as well as the inherent fallibilities associated with such tools at this stage of technological development.

Part 5 of this series shall look at issues concerning Moral Rights, and Digital Rights Management provisions under the Copyright Act.

[i] Ido Kilovaty, “Hacking Generative AI”, 58 LOY. L.A. L. REV __ (forthcoming), available at < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4788909>.

[ii] Municipal Corporation of Delhi v. Uphaar Tragedy Victims Association and Ors., (2011) 14 SCC 481.

[iii] CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004); Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) at 1370; Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F (3d) 121 (2d Cir. 2008) at 131. Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657 (9th Cir 2017); Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991); Princeton

Univ. Press v. Mich. Document, 99 F.3d 1381 (6th Cir. 1996).

[iv] <https://medium.com/@jitu028/the-evolution-of-ai-navigating-the-future-of-self-evolving-systems-ef0ca84b838a>

[v] MySpace Inc. v. Super Cassettes 2016 SCC OnLine Del 6382.

[vi] Ibid at para 38 and 39.

[vii] India Telecomp Limited v. Adino Telecom Limited, 1993 SCC OnLine Del 127; Collector Of Customs, New Delhi v. Ahmadelieva Nodira, (2004) 3 SCC 549.

[viii] Pradeep Kumar and Anr. v. Postmaster General and Ors., (2022) 6 SCC 351.

[ix] Barker v. Lull Engineering Co., 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1 (1978), Knitz v. Minster Mach. Co., 69 Ohio St. 2d 460, 23 Ohio Op. 3d 403, 432N.E.2d 814 (1982).

[x] Giancarlo Frosio, Generative AI in Court, in Nikol Koitras and Niloufer Selvadurai (eds)., Recreating Creativity, Reinventing Inventiveness- International Perspectives on AI and IP Governance. (Routledge, 2023).

[xi] Mark Lemley, How Generative AI Turns Copyright upside down, 25 Columbia Science and Technology Review 190 (2024).

Revisiting Trade Dress Protection

Trademark policy is a tool to facilitate consumers to distinctly identify the source of goods or products that they like. Its goal is to ensure that a consumer who wants to specifically use product x is not confused or deceived into using product y, believing it to be from the same source and hence of the same value- be it aesthetic or functional, as product x. To fulfill this goal, law makers have deemed it fit to confer exclusionary rights in the use of such source identifying attributes– often affixed to the products- to those who provide these products. What are these source identifying attributes? The legislators seem to understand these attributes to include verbal and non-verbal identifiers.-n“any word, name, symbol, or device” or any combination of these tools of source identification that a provider may use in conjunction with their product to facilitate recognition- as being excludable.

The underlying purpose of this exclusionary right is to protect the interest of consumer in being able to firmly identify the source, and to protect the interest of the provider in being able to use such distinctive identifiers enabling consumers to identify the source. It logically flows from this that such exclusionary rights are only to be extended to those attributes that are primarily and specifically used for identifying the source of the product. However, by broadly interpreting the meaning of “symbol” and “device”,[1] courts have rendered even attributes that generally are not considered by consumers to identify source, as being source identifiers or performing a source identification function.[2] Courts have reasoned this on the basis of the capability of such attributes to have a source identification function,[3] without investigating into whether – when divorced from the word mark and/or the distinctive logo (that primarily have source-identifying functions)- these attributes are even considered by consumers while identifying source, or not.

The upshot? Exclusionary rights have been extended to even (i) attributes which- even when divorced from the word mark or the logo- almost never actually have a source identification function but are merely attractive design features with their own non-source identifying significance (and its own legal tool of enablement – copyright law or design law)[4]; (ii) attributes which sometimes form part of the product- thus allowing an exclusionary right over the product itself- a product which may have use significance, although not functional utility in its strict sense;[5] (iii) attributes which flow from the experience of the product – its sensory characteristics- aesthetic, auditory, olfactory.[6] These although, almost always are a subject of originality and creativity and sometimes even novelty, are rarely primarily performing a source identifying function, especially when used in conjunction with a word mark or a logo. Most of the time, the originality of their sensory expression is excludable through other forms of intellectual property – copyright law, design patent law etc.- however given trademark protection, at least theoretically is perpetual (although we have the genericide doctrine), providers would often love to double up these exclusionary rights by portraying these attributes to also be source identifying.

A further radical upshot, with potential to be dismissed as being a conspiracy theory- Almost all of visual and auditory copyrightable subject matter could potentially be overlapping with trademark law- thus providing double and perpetual exclusion of works which are socially valuable to be accessed and used. The way trade dress protection has expanded- it is not inconceivable that Taylor Swift seeks trade dress protection over her songs arguing that – Hey! Someone listening to my song will immediately identify that this song comes from me, or Banksy seeks trade dress protection arguing – Hey! Anyone who sees that art on the train would obviously know that it’s me who has done that. We all know this has nothing to do with the goals of trademark policy and why it exists.

Such analysis is not limited to product configuration but extends to product packaging too- where even when divorced from the wordmark and the logo, the packaging would mostly be attractive – and that would be its primary function as against source identification -which automatically flows from that attraction because we would want to know who produced this attractive packaging. But such secondary potential of source identification is possible with all subject matter of copyright law as well. I might like a song by Radiohead because of its sensory attributes, but I would then associate Thom Yorke’s voice with him as a byproduct of the attraction. This source identification function although does not seem to be the concern of Trademark law because it directly flows from the song (product configuration) or its amazing sound recording (product packaging), as against a specific attribute peculiarly intentioned to help a consumer identify source. That specific attribute is the concern of trademark law. Put another way, how much ever Thom Yorke wants to trademark his sound, because as soon as we hear it- we know it distinctively is Thom Yorke’s attractive voice, that is not the kind of source identification trademark law protects – by providing an exclusionary right over the product itself.

If at all trademark protection is to be extended to product packaging or product configuration as source identifiers, the relevant enquiry could be:

Divorced from verbal and logo- identifiers which primarily serve as source identifiers- does the consumer, almost inevitably, associate the sensory attribute to be source identifying, as against anything else?

Maybe in the absence of the logo and the word mark on the product packaging, I would have to rely on distinct design features or packaging color (product configuration or product packaging), but when the product already has specific source identifiers in the form of a word mark and/or a logo, associating any source identification function on the trade dress/ design- be it of the product or the packaging- is a leap, which, on an objective basis, average consumers would not rely on.

This is where secondary meaning comes at play. If there is a product which does not have a specifically dedicated source identifier but rather relies upon its product packaging or product configuration to perform an identification function, and the consumers realize this and rely upon the said attribute over time (hence secondary meaning), there could be enough of a claim to extend source identification to trade dress. But this is as rare as it gets, and this is why, as Glynn Lunney recognizes- the legislators did not envision this, specifically including “packaging” or “configuration of goods” in the definition of a trademark only in the secondary/supplementary register and not for purposes of the principal register.[7]

Thus, J. Breyer’s broad reading of “symbol and device” in Qualitex, to conclude – any and everything that could possibly, inspite of the existence/ or in the absence of a dedicated source identifier, be a source identifier – is overzealous interpretation- completely ignoring the purpose and the interest sought to be achieved by the tool of trademark policy. It, as Lemley and Dogan argue, is a tenuous presumption of consumer behavior.[8] Put concretely, in my opinion, it is not objectively reasonable to assume that inspite of the boldly written distinctive name- Reese, in its distinctive style, font and logo-like characteristics, the consumer would continue to rely on its orange-colored wrapper to identify its source. And even if the consumer unbelievably loves associating the color- orange with Reese- thus showing certain amount of secondary meaning, still- so long as primarily specific source identifiers in the form of the logo or the word mark exist, there is no reason to allow excluding some other chocolate manufacturer- with a different logo and word mark to use the color orange on its packaging.

There is thus a need, and a strong one, to get rid of the propertarian impulse that provokes an exclusionary right on packaging or product design or sensory features, in the presence of other and specifically dedicated source identifiers. An exclusionary right on such features in some cases could be the domain of copyright law and in some of patent law, but in none is it a concern of trademark law and policy. When these specifically dedicated source identifiers are not present, it is only then, as a policy matter, that it could be explored whether upon finding secondary meaning- product packaging or product configuration could be rendered excludable for the purposes of source identification, or not.

[1] In Two Pesos, the Supreme Court interpreted trademark protection to extend to the total image of the business, general appearance of the product/its exterior, the décor, the menu and collated it into a single test – distinctive total image and overall appearance. The Court noted that in §43(a) or in the definition of Trademark under §45, legislators have not differentiated between a trade dress and a trademark – and hence an inherent distinctiveness approach ought to be followed, as against a secondary meaning approach. The Court said that legislators have given no basis to differentiate between a trademark and a trade dress or to not include the latter as a subset of the former. It thus differed from the logic of the 2^nd Circuit in Stormy Clime Ltd. v. Pro Group. This was applied to extend protection to the festive eating atmosphere and the interior and exterior design of a Mexican restaurant. As Glynn Lunney argues in The Trade Dress Emperor’s New Clothes: Why Trade Dress Does Not Belong on the Principal Register, 51 Hastings L.J. 1131 (2000) [Emperor’s New Clothes], the Court completely ignored the distinction between the definitions of trademark for the purposes of the principal register and the supplementary register. It was a conscious omission- conscious decision of the legislators according to Prof. Lunney, to not include trade dress for purposes of excludability through the principal register. Such excludability was wrongly first initiated by A.C. Daphne Roberts Leeds in Exparte Haig & Haig Ltd., 118 U.S.P.Q. (BNA) 229 (Comm’r Pat. 1958), and has since, according to him, begun to spiral out of control.

Even in Qualitex v. Jacobson, J. Breyer extends the meaning of symbol and device to include anything capable of carrying meaning. He logically supports this by referring to the registration and validity of shape marks, scent marks, sound marks etc. He accordingly posits if all of that is in scope, why would not the scope extend to color? Justice Breyer thus seems to, without any reasoning, accept the premise that shape marks, scent marks and sound marks are protectable. He assumes the authority of these registrations, without questioning whether they are within the scope of the interest sought to be furthered by the tool of trademark law or not- and on the basis of that presumption extends protection to colors.

[2] Graeme B. Dinwoodie, The Death of Ontology: A Teleological Approach to Trademark law, 84 Iowa L.Rev. 611, 621-622 (1999) [“Courts have protected as trade dress the design features of extensive range of products including kitchen appliances, sporting equipment, candies, bathroom fittings, sports cars, giant gumball machines, furniture, hardware items, fashion accessories, lamps and even golf holes.”] See also, Justice Breyer in Qualitex, where he states- “The courts and the Patent and Trademark Office have authorized for use as a mark a particular shape (of a Coca–Cola bottle), a particular sound (of NBC’s three chimes), and even particular scent (of plumeria blossoms on sewing thread). See, e.g., Registration No. 696,147 (Apr. 12, 1960); Registration Nos. 523,616 (Apr. 4, 1950) and 916,522 (July 13, 1971); In re Clarke, 17 U.S.P.Q.2d 1238, 1240 (TTAB 1990). If a shape, a sound, and a fragrance can act as symbols why, one might ask, can a color not do the same?”

[3] In Two Pesos, the Court prominently focused on capability of having a source identification function as against whether the attribute is generally considered to be performing a source identification function or not. The Court held any attribute that is an “inherently distinctive dress that is capable of identifying a particular source of the product” to be eligible to be excludable. Glynn Lunney argues against this in Emperor’s New Clothes, where he asserts- “First, the mere possibility that trade dress can serve a trademark function does not mean that a product feature or design is serving as a trademark in any given case. Yet, the recognition of trade dress as principal register subject matter encourages the assumption that some aspect of a product or its packaging claimed as trade dress is necessarily serving a trademark function. This assumption is unwarranted, particularly when a party claims a product’s features or configuration, rather than its packaging, as trade dress As the Restatement (Third) of Unfair Competition has recognized, consumers seldom perceive and rely on product configuration or product features as a source of information regarding the product, rather than as an aspect of the product itself.”

[4] In Christian Louboutin, the use of an aesthetic product or its aesthetic feature was protected. In Wallace, the use of the silverware, in case it was a part of a competitive market, would have been held to be excludable. In Qualitex, the particular product and its color feature was protected. In Best Cellar, the interior design of a wine cellar was held to be protectable, inspite of ambience being one of the core elements of the market of the product. Lemley and Buccafusco argue this to be an awkward overlap with Copyright law which is completely undesirable and comes with much more costs- and should be scrapped. See, Mark Lemley and Chris Buccafusco, Functionality Screens, 103(7) Virginia Law Review 1293, 1373 (2017).

[5] The decision in Wallace Int’l Silversmiths, Inc. v. Godinger Silver Art Co. clearly shows this – where the Court falls in what Richard Stallman calls intellectual property law’s seductive mirage- conflating the propertarian impulse associated with copyright law- with the extremely distinct purpose of trademark law. In Wallace, the Court rejects, what I believe to be the sound rationale of the 2^nd Circuit in Pagliero to hold that “Under Pagliero, the commercial success of an aesthetic feature automatically destroys all of the originator’s trademark interest in it, notwithstanding the feature’s secondary meaning and the lack of any evidence that competitors cannot develop non-infringing, attractive patterns. By allowing the copying of an exact design without any evidence of market foreclosure, the Pagliero test discourages both originators and later competitors from developing pleasing designs.” This extremely significant portion of the Wallace decision shows how court is confused about the difference between the trademark and the copyright doctrine and its goals- and extrapolates copyright’s logic on a trademark issue. The court limits the doctrine of aesthetic functionality as a defense to only when market competition is being foreclosed- another logic that flows straight from the logic of the merger doctrine and the scenes a faire doctrine in copyright law- without understanding that most of these aesthetic feature are actually valuable for their attractiveness, and what the actual subject matter of trademark protection is, is the name or logo that accompanies it for the purpose of associating this attractiveness with the one who provides the attractive work. The court also relies on Illustration 6 of the Restatement which says- “A manufactures china. Among the products marketed by A is a set of china bearing a particular “overall” pattern covering the entire upper surface of each dish. Evidence indicates that aesthetic factors play an important role in the purchase of china, that A’s design is attractive to a significant number of consumers, and that the number of alternative patterns is virtually unlimited. In the absence of evidence indicating that similarly attractive “overall” patterns are unavailable to competing manufacturers, A’s pattern design is not functional under the rule stated in this Section.”- In my opinion- by adopting this rationale, the Restatement and the Court in Wallace has conflated the subject of copyright protection and its rationale supported by Clause 8 or the IP Clause of the Constitution, with the subject and object of trademark protection- which is completely distinct and is more of a source identification function with roots in the commerce clause. See also, Mark Lemley and Chris Buccafusco, Functionality Screens, 103(7) Virginia Law Review 1293, 1346-1347, 1373 (2017).

[6] Justice Breyer in Qualitex, where he states- “The courts and the Patent and Trademark Office have authorized for use as a mark a particular shape (of a Coca–Cola bottle), a particular sound (of NBC’s three chimes), and even particular scent (of plumeria blossoms on sewing thread). See, e.g., Registration No. 696,147 (Apr. 12, 1960); Registration Nos. 523,616 (Apr. 4, 1950) and 916,522 (July 13, 1971); In re Clarke, 17 U.S.P.Q.2d 1238, 1240 (TTAB 1990). If a shape, a sound, and a fragrance can act as symbols why, one might ask, can a color not do the same?”

Even J. Scalia in Wal Mart Stores, to avoid disagreeing with Two Pesos, teleologically finds (awkwardly- as noted later in Best Cellars Inc. v. Wine Made Simple) that “Two Pesos is inapposite to our holding here because the trade dress at issue, the decor of a restaurant, seems to us not to constitute product design. It was either product packaging—which, as we have discussed, normally is taken by the consumer to indicate origin—or else some tertium quid that is akin to product packaging and has no bearing on the present case.” It is unfathomable as to how the interior of the restaurant does not function as a product design – because in a restaurant, the product is not just the food and drinks but also the ambience- which significantly drives consumer choice and motive of visit.

[7] Glynn Lunney, Emperor’s New Clothes, supra notes 1 and 2.

[8] Stacey L. Dogan & Mark A. Lemley, Trademarks and Consumer Search Costs on the Internet, 41 HOUS. L. REV. 777, 777 (2004) (“[C]ourts have stretched trademark doctrine . . . based . . . not on the normative goals of trademark law, but on unexplored instincts and tenuous presumptions about consumer expectations and practices.”).

Indian Copyright Law and Generative AI: Part 3- The Output Stage:

Co-authored with Sneha Jain

In the first two posts in this series, we addressed Copyright concerns raised by Generative AI, primarily at the stage of training the LLM as well as using certain datasets. In the first post, we considered whether storing copyrightable works for training purposes is an infringing reproduction. In the second post, we analyzed whether extracting meta-information or using meta-information embedded within copyrighted works for the purposes of training the model would be infringing of any of the exclusive rights of the copyright holder, including when such content is scraped out of paywalls. We also briefly evaluated the impact of the codified exceptions and limitations under Indian Copyright law and their implications at the training stage.

In this third post, we are finally moving to the Output stage- or the downstream side of things. We address two questions here:

Would the output generated by the AI Model, basis a query from the user, infringe the Reproduction Right of a copyright owner, whose work was inputted at the training stage?
Would the output generated by the AI Model, basis a query from the user, infringe the Adaptation Right of a copyright owner, whose work was inputted at the training stage?

Similarity in Output and the Reproduction Right

The Reproduction Right under Section 14 of the Copyright Act protects the primary market of the original work [for derivative works like sound recordings and cinematograph films, a distinct right to exclude the making of a copy of the said work is provided. We are currently not concerned with that]. While analyzing the contours of this Reproduction Right, courts use the test of substantial similarity, to conclude whether the Defendant’s work, overall, is substituting the primary market of the owner of the Plaintiff’s work. In the seminal decision of R.G. Anand v. Deluxe Films [AIR 1978 SC 1613 [52]], the Supreme Court held that “One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.” This test clarifies that unless the output generated by the model is substantially similar, i.e., unmistakably similar or a literal imitation of a previous work/ a work that is a member of the dataset, it would not infringe on the Reproduction Right of the Plaintiff.

As many have argued [see here and here], the possibility of an LLM model trained on a dataset to produce an output that is unmistakably similar or a literal imitation to any one of the inputs of the dataset, is considerably low, although it cannot be ruled out due to inherent fallibilities of LLMs as well as the potential mindset of the developer.[i] Even if the prompts inputted as queries are very specific, yet the possibility of output, that so closely resembles a single individual input that the model is trained on, is low, unless the model is specifically trained to produce regurgitations from its memorizations. Prompt injections, however, change this. Prompt injections mean inputting certain carefully designed prompts to trick the model of manipulated Gen AI into disregarding its content generation restrictions.[ii] These are often in violation of user terms and conditions. Susceptibility to such manipulation is an inherent fallibility of Generative AI and here to stay, however it requires carefully and wickedly engineered prompts, often in violation of user terms, to exploit this vulnerability of the model.

In any case, if the output produced by the model is a literal/substantial imitation of any of its training inputs, of course there would be a claim of violation of the exclusive Reproduction Right i.e., Section 14(a)(i) / (c)(i) r/w Section 51(a)(i) and Section 51 (a)(ii) of the Copyright Act. However, who will be liable for this is a different question that we shall explore in Part 4 of this series.

What we, although, need to be mindful of is that liability may only arise for violating the reproduction right if the output is substantially similar to the input. The Reproduction Right only protects against substantial similarity, which as the Supreme Court in R.G. Anand (supra) holds means similarity of the nature that will result in a situation where a person when looking at the two works as a “whole” would conclude unfair appropriation. The similarity may be in respect of certain fragments or hook parts of the original work, however, if- when looked as a “whole”, a lay person does not think it to be literal imitation or thinks of it to be a different work, the same would not be infringing. [Para 53 and 71]. In simpler terms, “substantial” has been held to mean a part of the original work which is qualitatively or quantitatively so significant that inspite of merely being a part, it makes the whole of the two works seem similar, thus reducing the differences to plain noise, and giving an impression of it being a colorable imitation.

As per a couple of interim orders of the Bombay High Court in Ram Sampath v. Rajesh Roshan and ors. [2008 SCC OnLine Bom 1722] and Twentieth Century Fox Film Corporation v. Sohail Maklai Entertainment Pvt. Ltd. and Anr. [2010 SCC OnLine Bom 1577], copying of even fragments of works, which may be “hooks” would be infringing, terming the test to be where an illiterate person thinks that “Hay! I have heard this tune before”, i.e., is reminded of the former tune.

The correctness of the legal position of these interim orders, when analyzed in context of the binding judgment in R.G. Anand (supra) is doubtful. For instance, I may think of so many songs to have sequence of notes that are similar to the basic hook note sequence of “Hey Jude” by The Beatles, embedded within their work. However, that would not mean that the analysis of similarity would have to be divorced of the context of the work looked at/compared as a “whole”. Such a test ignores the material context surrounding the fragment, and its contribution to the originality of the whole work over which copyright rests in the first place. Such an inward fragmentation approach to the Reproduction Right, expanding exclusivity to include even fragments or elements of the work divorced from its context, is arguably outside the scope and purport of the right. In other words, the “substantially similar” test mandates a holistic comparison of the works, as against comparison of certain elements (which may be qualitatively significant) of the work, divorced from its overall context.

In any case, for our purposes, it is noteworthy that Courts may hold reproduction of notable or qualitatively essential fragments of works at the output stage to be infringing relying upon the aforementioned interim orders.

Importantly, however, the Reproduction Right does not extend to the the basic themes of the work, style of the author, or the generic storyline of the work, but only the expression as a whole. The former constitute ideas and are not protectable.

The Adaptation Right

When a claim under the Reproduction Right fails, the focus shifts towards the “Adaptation Right” which, due to its literal phrasing, has a seemingly larger scope, encompassing uses of works which even alter or re-arrange the original so long that it retains the core of the primary expression. The connotation, as commonly understood, is similar to extending the primary market of the copyright owner to works that are based on a previous work [creation of a secondary market]. However, arguably this common understanding is at odds with the purpose of the Adaptation Right.

In fact, the Adaptation Right for original works (the said right is not available for derivative works like sound recordings and cinematograph films), as originally conceived under the Indian Copyright Act, limited the secondary market of the Copyright owner to conversions, translations, abridgements and transcriptions. [Section 2(a)(i)-(iv) of the Copyright Act]. What this arguably indicates is that the focus of the Adaptation Right was on the same expression (originally produced by the owner of the primary work), communicated in a different format / medium. In other words, originally conceived, the Copyright Act created a secondary market for the owner of a work but limited its scope to representations of the identical work in a secondary format. However, with the Amendment to the Copyright Act in 1994, the scope of the Adaptation Right was expanded to include any use involving re-arrangement or alteration [Section 2(a)(v)]. This was, according to the Notes to Clauses to the Amending Bill, added to bring the Act more in consonance with the Berne Convention, which provides in Article 12, exclusive rights over rearrangements and alterations.

However, an expansive reading of alteration has potential to swallow all transformative depictions, using elements of prior works, including meta-information embedded within them. This has, in fact, been clarified by the Division Bench of the Calcutta High Court in Barbara Taylor Bradford and Anr. v. Sahara Media Entertainment Ltd. and Ors [2004 (28) PTC 474 (Cal)], which consciously restricted the scope of the word “alter” to minor alterations, which do not transform the core purpose and character, as well and meaning and message conveyed by the overall work. Holding against full internalization of value even through use of fragments of a work, the Division Bench of the Calcutta High Court held that a purposive interpretation of the definition of Adaptation under Section 2(a) of the Copyright Act, clearly points towards a limited reading of “alter” to only be used in cases of works which cannot ideally be represented in a different medium- for instance computer programmes, as well as to reduce its purport to slight or minor changes which do not transform the work. The Calcutta High Court held:

“125. This argument of Mr. Sen deserves full attention. Rearrangement not being very much in issue in our case, we put to Mr. Sen the question what the meaning of the word “alteration” in this sub-section was. Did it mean mutation or transformation, and did it include such extreme changes also ?

126. Mr. Sen could not maintain any argument of this extreme form, that by introduction of this amendment, the Copyright Law has been so altered in India, that if a literary work is taken by somebody other than the author, and it is so changed and muted as to make it transformed, and a different work altogether, even then copyright would be infringed. Such an interpretation of this sub-section would make nonsense of the Indian Copyright Law. A totally changed thing can never be termed a copy of the original thing. How can copyright affect the right in something, which is not related to the protected work’s copying or reproduction at all ? Pursuant to our queries, Mr. Sen referred us to several Dictionaries. Dictionaries are the last resort of Judges who either find it difficult to give a meaning to a particular word, or, having deal with all the other principles and authorities, and just for the sake of completeness, refer to these voluminous and useful works.

127. On the basis of what we saw from the Dictionaries, and on the basis of common knowledge of the English language, it appears to us that the word “altered” is capable both of meaning slight changes and of meaning extreme changes.

….

131. In our opinion, the large change meaning cannot be ascribed to the word “alter” in Section 2(a)(v) of the Copyright Act, 1957, because it renders the interpretation absurd. Minor change, slight change, not making the original something beyond recognizable possibilities, changes in some of the details, this would be the meaning that would fit the word alter in Sub-section (v). In our opinion this sub-section might have a very good bearing when applied to copyrights of computer programmes and databases, but in relation to literary works, the sub-section does not bring in any very great changes in the law; one can at best say that the subsection would make it slightly, we repeat only slightly, easier for an author or an authoress to establish infringement, after its introduction, than it would have been before the introduction. It is often misleading to speak of percentages in legal matter, but the difference made by introduction of this sub-section for literary works is the sort of difference that exists between two mathematics answer papers, one of which gets, say, 46% and the other 52$. There is no reason why we have mentioned these two figures but if this clears the understanding even a little bit, then the illustration would have well served its purpose. In our opinion, the view that we take of the strength of the prima facie case of the plaintiffs, cannot be altered (meaning radically changed) by the introduction of this subsection only, and by reason merely of the presence of this single new sub-section.”

Even in UK, which is a fully Berne compliant country, adaptations are limited to medium/format changes, and alterations/rearrangements are only considered adaptations for computer programmes.[iii]

This interpretation is arguably in line with the decision of the Division Bench of the Delhi High Court in University of Cambridge v. BD Bhandari [2011 SCC OnLine Del 3216], which protects uses of works for “transformative purposes” or a “transformative character”. It ensures that the Adaptation Right, Reproduction Right as well as the transformative use exemption (3 distinct concepts within the same Act), harmoniously co-exist without impinging on either of their scope and purposes.

In light of the above, output produced by Generative AI models which are merely based on inputted datasets/works, would arguably not ipso facto be hit by the Adaptation Right, unless the output is essentially the same/substantially similar work in a different format of expression, or the output even in the same format merely includes trivial/minor variations which do not rise to the level of transforming the character of the work.

It may be noteworthy to mention that no analogy can be drawn to the “based on” framing of the Derivative Works Right in the United States because of two reasons:

The Derivative Work Right in the United States self-proclaimedly is beyond Berne, following the logic of expanding exclusionary rights to all channels which expose even fragments of the primary work to the public. The US had a similar restricted framing in its 1909 Copyright Act, however it rejected the same and rather adopted a broader and more open-ended Derivative Works right in its 1970 Statute. As Prof. Pamela Samuelson documents,[iv] at least one publisher wanted the Derivative Right to cover more than Berne-Style adaptations as an “adaptation” oriented framing cut down the intention of excludabilities covering any work “based upon” a preexisting original work. India refuses this and is fully Berne compliant.
Even in the US, as many scholars argue, the scope of the Derivative Right is restricted to transformed forms/formats and not all kinds of alterations or outputs based on a previous work, which impinge on the transformative use doctrine within its Fair Use doctrine.[v] Moreover, the Ninth Circuit in the United States has rejected the “based on” understanding of this right, and has reiterated that to constitute a derivative work, the “infringing work must incorporate in some form a portion of the copyrighted work,….[and] must be substantially similar to the copyrighted work.” [Vault Corp v. Quaid Software Ltd., 847 F.2d 255, 267 (5^th Cir. 1988), quoting Litchfield v. Spielberg, 736 F.2d 255, 267 (9^th Cir. 1984)].

Finally, as an epilogue to this piece, we would like to suggest that when thinking about copyright liability of allegedly infringing outputs, one needs to be mindful of the fact that even if the act of creating substitutes of human creativity, based on datasets that are exemplars of human creativity, seem “harmful” from the point of view of the copyright owner, more often that not, they are not copyright’s concern, unless the expression is actually copied. Independent creation that is not copied is infact fostered in copyright law as against constrained even when it uses the meta-embedded information within previously produced expressions. It increases competition, which is desirable in a cultural and semiotic society. Hindering the same, using the tool of copyright law, basing it on an argument of existential crises for creative industries [an argument non-existent in copyright jurisprudence] is undesirable. We rather need to look towards more social solutions of providing external opportunities for creative industries to not lose out in competition to AI, by using it as a tool, or by political changes like social basic income, as against shrugging Gen AI models which significantly enrich our cultural realm.

[i] Ido Kilovaty, “Hacking Generative AI”, 58 LOY. L.A. L. REV __ (forthcoming), available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4788909>. See also, Katherine Lee, James Grimmelmann, A. Feder Cooper, “Talkin’ Bout AI Generation: Copyright and the Generative AI Supply Chain”, Journal of the Copyright Society of the United States (forthcoming 2024) < https://arxiv.org/pdf/2309.08133>.

[ii] Yangyi Chen, “Exploring the Universal Vulnerability of Prompt based learning paradigm”, arXiv:2204.05239v1 [cs.CL] 11 Apr 2022, available at <https://www.researchgate.net/publication/362254964_Exploring_the_Universal_Vulnerability_of_Prompt-based_Learning_Paradigm>; See also, Ido Kilovaty, “Hacking Generative AI”, 58 LOY. L.A. L. REV __ (forthcoming), available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4788909>.

[iv] Pamela Samuelson, The Quest for a Sound Conception of Copyright’s Derivative Work Right, 101 GEO. L.J. 1505,1512-1513 (2013).

[v] Talha Syed & Oren Bracha, Copyright Rebooted, Presentation at the 2022 Stanford University Law School Intellectual Property Scholars Conference (Aug. 12, 2022) (unpublished manuscript) (on file with author), See also: Akshat Agrawal, Andy Warhol Foundation v. Goldsmith: A misnomer of a debate, PhilIPnPolicy Blog [22^nd October 2022], available at < https://philipandpolicy.wordpress.com/2022/10/22/andy-warhol-foundation-v-goldsmith-a-misnomer-of-a-debate/>.

Understanding IP and its Relationship with Natural Rights ft. Prof. Talha Syed

I did not end up posting anything on World IP Day this year. So here is a consolation for that. I am leaving all of you with a beautiful and provocative portion of the inimitable Prof. Talha Syed’s [my mentor, supervisor, and favorite law professor] speech at UC Berkeley as part of a debate (linked here). I hope you enjoy:

“For me, intellectual property rights—you have to begin with the basic idea that they are rights to exclude others from using a resource—information or knowledge or culture—which resource is intangible. And because it’s intangible, it’s nonrival, and because it’s nonrival, many people can use without anyone degrading anyone else’s use. So, it’s really unfortunate, unfair to restrict access on that. For me, the harm is that it restricts access to something which, once created, should be available to all because it does not derogate from anyone’s use that others share it. That’s the miracle of intangible resources.

Having said that, there are both fairness and incentive arguments for why the creator might be owed a decent return for the effort that went into creating something that’s socially valuable and that, if we don’t get that decent return, it might be that others will be discouraged from doing so, and we might get less innovation. That’s my basic, very modest framework. Access restrictions on intangible resources are a default bad idea But some way of generating those resources may be required through some legal policy to promote fairness and robust production and robust innovation.

What the ultimate principled basis of that is we could explore, and I’m happy to discuss. But it’s this mix of sort of basic ideas of wide access and fair returns that motivates my view that intellectual property rights, like some other innovation policy mechanism, should be evaluated in terms of how well they enable wide access and robust production and fair, equitable returns.

And on that, I’m not committed to intellectual property rights as being the best scheme or to how strong they should be. My own view is that current rights are, through the roof, way too strong. There’s a massive overreach. There’s a very clear, political economy story why that happens. It’s completely unfortunate, and it’s expanding to this day. And what’s happening on the internet with criminal enforcement and so forth makes it all even much worse.

So, on all that, we, I think, are not too far apart, although one could have various sort of modest disagreements. But where we disagree is sort of the foundational basis of our positions. And so, on this, I don’t have much time, so I’m going to just try to say a few things. So, Mr. Kinsella has what he claims is a sort of a libertarian, principled position based on natural rights arguments.

Now, to me, there’s a few problems with this.

First of all, it’s always puzzling to me why it’s called the libertarian position when it’s really the propertarian position. It’s not about freedom. It’s about property rights. Well, then say that. It’s a propertarian position. It’s not about an unvarnished, principled commitment to freedom. It’s about the guiding motif being something called property rights. Now, on the idea of property rights, I just want to say three things and see if I can get it in in this time.

First, of all, natural rights. I’ve never understood what people mean when they say natural rights. To me, rights are claims against others. Mr. Kinsella seems to agree. There are no rights on a desert island by yourself. Rights are claims against others. Rights are social relationships.

Now, the basis of those rights can be in various different kinds of arguments. Those are arguments. Calling them natural is just cheating. Where do they reside? They’re not your eyesight. Eyesight might be natural for some. To call something natural is a dishonest way of trying to get pre-modern warrant for a normative argument as quasi-non-normative. It is, in a word, bullshit.

There are rights, which we can respect based on reasons. We have to give reasons for those rights. When the reasons are given, they can be more or less persuasive. Calling them natural does nothing to the argument except try to convince you that it’s not a normative argument at all. It’s like a physical act. Well, there’s a chair there, don’t you know. Well, okay, good. But that doesn’t tell me about whether the chair is nice or not nice, pleasing or not pleasing, should be sat upon or not, whose chair is it, and so forth.

Those are normative arguments. Historically, until about 1700-1800s, normative arguments were couched in the language of time inmemorial, divinity, revelation, and so forth, or something called natural rights, which was a fusion of them, natural reason, according to Locke in the Second Treatise. Ultimately, natural reason is just reason, and I’m fine with arguments from reason. But putting this label “natural” on it as if it’s not any longer something human, something social, something historical, something normative, is a cheat, pure and simple. It is an attempt to deny the inescapable reality that rights are social relationships, which we have to argue about to determine which interests merit protection over which other interests.

I have no problem saying the argument should be grounded in something called right reason of the Second Treatise, but then you have to tell me what the premises and principles of that right reason are. So let me go to that second point in a moment.

On natural rights, I think the word “natural” has mental-blocking properties. The minute you say natural right, you’ve made it seem as if you’re making an argument of individuals outside of society. All rights are social, period, conceptually and institutionally. That’s just a truth. There’s nothing you can do about it except cry. But that’s what it is. All rights are social. Natural rights theorists have, for most of history, argued that natural rights can be justified in unilateral, individualist ways. Any time you get an argument that justifies someone’s rights in a unilateral, individualist way, without taking into account competing bilateral claims, it’s someone who doesn’t understand what a right is conceptually and institutionally. And that misunderstanding is facilitated by the rhetoric of natural, which has had, historically, that role. Second, “natural” also has the rhetorically loaded character of inviting you to believe that this is something you observe as an empirical claim rather than something that you argue for as a normative claim. The minute someone says, yeah, of course, all rights are social and normative and backed in normative reasons, we’re fine. Then the word “natural” plays no role. If you say, well, that’s what the word means, then my question is, well, why use the word “natural?” What does natural add except to say certain reasons do not depend on their recognition by certain contingent legislatures? Well, that I agree with. Of course, I absolutely agree that rights are not just the conventional positive legal rights that our legal system may or may not recognize. Of course, I agree we all have the right and obligation to be critical of the existing rights of a legal regime according to reflection and reason. Of course, that’s right. Anyone who doesn’t think that besides Bentham is crazy. But that’s a different view. The word “natural” doesn’t add anything.

On that second point, the idea that all rights are property rights strikes me as patently bizarre. Either it’s going to be tautologically true, because we’re going to empty the concept of property rights of any content and meaning, in which case what’s the point of the exercise? Or it’s going to be false because I don’t understand what it means to say that my interest in being able to express myself should be protected as a right against other people’s interests in not hearing what I say, and being able to violently stop myself from speaking.

Oh, well, that’s really a property interest because you’re using your vocal organs, and you own them. I don’t know what that means. I don’t know how that helps anything. I don’t know what that means except to illicitly try to reduce all human interests to the logic of the market. And that’s, to me, a very historically specific recent phenomenon, and when libertarians, or what I call propertarians, think it is somehow true from time immemorial, they’re just wrong.

There are no such arguments until very recently on the stage of history because the social form that those arguments track is very recent on the stage of history. Propertarian mindsets are the mental expression of people who live in capitalist societies. That’s fine, but that shouldn’t be then naturalized into some sort of trans-historical, human phenomenon through the gobbledygook of natural and blah, blah, blah. It just doesn’t make sense. It’s dishonest. It’s patently absurd. The argument should be made on their own terms, not with the implication of unhelpful metaphors, which try to hide the ball.

Last point. The rights of property that are being claimed as absolute and sacrosanct here are the rights in one’s body, self-ownership, and the rights in external resources based on first occupancy, fundamentally [then there’s contract and rectification]. But that’s a very strange argument, first occupancy. The first person who delimits or does something that no one else has done now has it. Locke never made that argument fully. He thought that that argument by itself was too thin a read, and he was right because, of course, by itself, that can’t be enough, just being there first.

What if you’re there first in a lot of places, and you don’t leave “enough and as good” for others? Well, there’s a problem. Locke understood that. The propertarian literature has struggled with this from the beginning. How do you deal with the in-built limit on property rights in external resources based on the “enough-and-is-good” proviso? There is a whole industry on talking about this. What does it mean to be born into an Earth that’s already been occupied and owned by everyone? What is all this about? And fundamentally, I can’t really argue against this at this time, I’m happy to argue it against it at length.

But I just want to leave you with an idea that, fundamentally, this whole mindset is a bizarre idea that humans are born fully form, self-autonomous beings at birth. They are not. They are born vulnerable, fragile, deeply dependent, social beings all the way down. Adults at some point in a market society come to resent this reality and deny it deeply by pretending something else is the case and then invent a series of fictional just-so stories which none of which have any grip for anyone who’s not already in the grip of the idea, the infantile desire to escape the reality of society and history and go back to some primordial, fictional story in which there are absolute rights, sacrosanct between self-governing sovereigns who relate to each other as pinball machines and can’t define their rights in any plausible way.

There is no such thing, period, as an absolute right because rights are social relations, and to have an absolute right would mean to have an interest protected against any other interest absolutely. And that is conceptually and institutionally not on the cards. Okay, I’ll stop.”

Hope you enjoyed it. All of this is of course “owned” by Prof. Syed. It is his “vocal organs” after all!

Indian Copyright Law and Generative AI: Part 2- Transformative and Extractive Use

Co-Authored with Sneha Jain

Having first considered the question of whether storing copyrightable works for training purposes is reproduction that amounts to copyright infringement under Section 51 of the Indian Copyright Act, 1957, in this second post of this series we will specifically be looking at transformative and extractive uses, applicability of exceptions and limitations under Indian Copyright law, as well as implications of Anti-Circumvention laws.

Transformative Use

India does not recognize the transformative use exception to copyright infringement within the parameters of Section 52 of the Copyright Act. However, the Division Bench of the Delhi High Court in University of Cambridge v. BD Bhandari [2011 SCC OnLine Del 3216][i], has held use of a work for purposes of making a guidebook to be a substantially different purpose from the purpose for which the original work of the Plaintiff was made. The Court recognised this purpose to be a transformative purpose, which did not impinge upon the expressive purpose for which the Plaintiff had an exclusive reproduction right. The reproduction right, or its scope, was thus, arguably restricted by the Court to the expressive purpose for which the original work was curated.

Can a similar analogy be extended to use for training genAI models, where genAI developers argue that not even a single human being is exposed to the expressive content of the work? Not even the Large Language Model (LLM) reads or experiences the work in its expressive sense, and storage of a single copy merely enables the foundational model to discern, among other things, the “structure, syntax, and semantics of language,” including “grammar, sentence construction, and how words and phrases are related to each other” in order to facilitate the generation of “coherent and contextually appropriate output”[ii].

Unlike the United States where there is a contrast in statute- i.e., the Copyright Act, 1976 itself provides for transformed forms of works to be protectable derivatives, as well as provides fair transformative use to be exempted from infringement, the Indian statute is not clear on whether use of a work for an expressively different purpose, or in fact for a non-expressive purpose is within the domain of the creator’s market. The Division Bench of the Delhi High Court inUniversity of Cambridge (supra) recognised that if the use of the work is of a “transformative character” i.e., the purpose served by the use is different from the purpose for which the work was made, it is a limitation to copyright protection or its subject matter. The Court also held guide books to be a transformed work, not amounting to reproduction of the original. The Division Bench of the Calcutta High Court in Barbara Taylor Bradford v. Sahara Media Entertainment [2004 ILR (1) Cal 15] has also recognised that a work which is taken, and then used for producing a subsequent work that is so changed and muted as to make it transformed, and a different work altogether, would not generate an actionable claim for the owner.

This line of decisions presents an important question. Is use for the purposes of training, to enable the Gen AI model to produce accurate responses to user queries, a part of the expressive purpose for which the work was originally created? Or is it a transformed purpose that is beyond the circumscribed domain of exclusionary rights granted to the copyright owner? Is use for training purposes, when the work is primarily expressive, and meant to be expressively consumed as against used for non-expressive training, infringing? This would require an analysis of what really comprises the subject matter of protection for the owner- their primary and secondary markets – and how much of it is linked directly with the purpose for which the work was created- expressive purpose or training purpose? In other words, does use of a copyrighted work for a non-expressive/ non consumptive purpose amount to copyright infringement, or is it a distinct and transformative purpose outside copyright’s boundaries/scope of protection?

Extractive Use

A distinct question here deals with use and copying of even protected material for arguably extracting unprotectable elements, that would otherwise not be possible to be extracted. The affirmative essence of such use is to extract unprotectable elements from copyrighted works, elements which are not a subject matter of copyright protection.

In Akuate Internet Services Pvt. Ltd. v. Star India Pvt. Ltd [2013 SCC OnLine Del 3344][iii], the Division Bench of the Delhi High Court has recognised that copyright’s balance is maintained by ensuring that information, facts and knowledge embedded within expression cannot be monopolized using Copyright law. The Court has further held that protection cannot be extended to information and facts embedded in protectable works, even under the premise of unfair competition. Extending the same would inevitably restrict the ability to extract and disseminate information which is a critical component of Article 19(1)(a) of the Constitution of India. Thus, Indian Copyright jurisprudence clearly recognizes that information embedded within expression is not protectable and no monopoly can be extended in respect thereof. The said rationale of balancing copyright protection with access to unprotected information for the purposes of furthering expressive and speech values has also been recognised by the Division Bench of the Delhi High Court in Wiley Eastern Ltd. v. Indian Institute of Management [61(1996)DLT 281].

This is furthered by the idea expression dichotomy under Copyright law that is widely accepted in Indian Copyright jurisprudence. Useful information contained in any expressive work is not protected. It is only the form in which the said information is contained/presented that is a protectable expression for purposes of Copyright law. This is line with the fundamental purpose of Copyright law which is to reward and incentivize/enable production of creative expressive forms, that disseminate useful information. This, as Prof. Molly V. Houweling recognizes, is not because information and facts are not valuable enough to justify copyright but rather because they are so valuable that they belong to the public domain for everyone to be able to access.[iv]

For instance, in the case of a poem that expresses conceptions of thoughts, copyright in the poem gives no monopoly in the ideas or conceptions of facts expressed by the said words, but merely to the arrangement of the words used to express those thoughts. Others have a right to discern that information and exploit the information within, provided they do not substantially reproduce/adapt/communicate to the public, the concrete form in which the ideas have been arranged or put into shape.

The basic rationale for protecting uses of copyrighted expressions which are not reproductive of the expression or expressing form but are merely to extract the ideas or the unprotectable elements embedded within, flows from this idea expression dichotomy. For extraction however, it is arguably necessary and could be essential to access the whole copyrighted expression, and even store it, without exposing it in its expressive form to a single human being- which is exactly what GenAI systems often do. Without such access to the complete work, extraction of embedded information becomes impossible, inevitably extending copyright protection to such unprotectable elements. That, of course, is not a desired outcome of copyright policy. In other words, copyright does not give the “right to control access” to extract unprotectable elements (Anti-circumvention provisions do- which are dealt with below). It merely gives the right to exclude reproduction/adaptation/communication of the expressive form of the work (No wonder, Section 14 of the Copyright Act does not include “right to control access” within its sub-provisions).

Even well recognised doctrinal principles like the merger and scenes a faire doctrines in Copyright law provide scope for extractive uses of seemingly expressive elements. These doctrines recognize that unprotectable ideas, facts, stock characters, incidents, images and themes sometimes do not lend themselves to a wide variety of expressions. Thus, these doctrines prohibit protection of seemingly expressive elements that represent only a few limited ways of expressing certain ideas. Without being able to extract these seemingly expressive elements which have merged inseparably with the unprotectable limited ways of expressing ideas, and use them, the purpose of the idea-expression and merger doctrine is rendered illusory.

The analysis may, thus, focus on the nature of the expression used, and the purpose of storing that seemingly expressive expression i.e., merged into an idea – whether it is to extract informational content out of it, or for expressively reproducing it? Many a times, we will realize that without accessing, copying and using the entire expressive form that is protected, extracting unprotectable ideas out of such expressions would be impossible.

Codified Exceptions and Limitations:

Under Section 52 of the Indian Copyright Act, fair dealing for the purposes of private or personal use, including research is permissible. An important question that Courts will have to grapple with, as they deal with extension of legal personality to Artificial Intelligence Technologies (separate article soon!), is whether use by AI systems for training and for its models to learn would be private or personal use, that does not expose the expression to a single human being apart from the AI system. Moreover, whether private use by a corporate entity like Open AI for its own learning and development (for its models), even if that learning leads to a competitive product, is permissible or not will also have to be examined. Would the defense of private or personal use under Section 52(1)(a)(i) of the Copyright Act only extend to humans or also to corporates or juristic personalities?

On the side of research use, it is arguable that use for the purposes of extracting information embedded in expressions, without exposing a single individual to the expression, could amount to research use that is protectable under Section 51(1)(a)(i) of the Copyright Act. Importantly, the explanation to Section 52(1)(a) also provides that storage for fair dealing for a private or personal use, including research, is not infringing.

These questions at the back end, however, will only arise if Courts, in the first place, deem such storage and use for training purposes, to be a part of subject matter of protection under Section 14 of the Copyright Act.

Anti-Circumvention and the Training stage (Para-copyright right to “control access”)

Anti-circumvention provisions under Copyright laws are essentially to prevent unauthorized access to copyrighted works that are safeguarded in the digital realm using modes like, inter alia, paywalls etc. In the United States, New York Times in its complaint against Open AI has alleged that Open AI has trained its model by circumventing paywalls and unauthorizedly accessing its copyrighted protected articles that are behind technological protection tools that prevent circumvention. The allegation is synonymous to unauthorizedly circumventing its security measure put in place to prevent access, for purposes of training the model. Would a similar act be actionable under Indian Copyright law?

Section 65A(1) of the Copyright Act provides that circumvention of a technological protection measure is forbidden under the Indian Copyright law. It is the only provision that controls the “access” to copyrighted digital works and is a para-copyright measure to ensure that even unauthorized access is actionable. However, importantly, Section 65A(2) specifically prescribes that technological protection measures can be circumvented if it is for purposes that are legal, or not expressely prohibited by the Act. This provision was specifically inserted keeping in mind the importance of access for permitted purposes. The Standing Committee that was constituted for the 2010 Copyright Amendment Bill, that translated into the Copyright Amendment Act 2012, specifically argued that without a provision that allows circumvention of technological protection measures for permissible purposes under the Act, access to works for permissible purposes would be impossible and exceptions and limitations to Copyright Act would be rendered redundant – “In the absence of the owner of the works providing key to enjoy fair use, the only option was to circumvent the technology to enjoy fair use of works.”[v]

Thus, if Courts find use for training purposes transformative, extractive or outside the subject matter of protection, or for that matter, permitted under Section 52 of the Copyright Act, circumventing technological protection measures to enable extraction would be permissible under the Copyright Act.

Section 65A (2) however comes with a condition, i.e., every person facilitating the circumvention of a technological protection measure (“hacker”) has to maintain a complete record of the name, address, and all relevant particulars of the person (“fair dealer/user”), as well as the purpose for which he has been facilitated. So long as this is maintained by the hacker, Section 65A (2) allows circumvention of technological protection measures. Importantly, this also ensures keeping a record of every protected work that is accessed for training purposes, for the purposes of technologically facilitating attribution, which is a desirable goal of copyright policy.

In the next part of this series, we will transcend from the training stage to the output stage, to analyze whether outputs produced by GenAI systems would be violative of the owners reproduction or the adaptation/derivative rights.

[i] Special Leave Petition before the Supreme Court bearing – SLP(C) No. 029951 / 2011, dismissed vide order dated 27^th January 2016

[ii] Understanding Generative AI and its relationship to Copyright, Written Testimony of Christopher Callison-Burch before the U.S. House of Representatives Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet Hearing on Artificial Intelligence and Intellectual Property: Part I– Interoperability of AI and Copyright Law, available at <https://docs.house.gov/meetings/JU/JU03/20230517/115951/HHRG-118-JU03-Wstate-Callison-BurchC-20230517.pdf>

[iii] SLP(C) No. 029629 / 2013 pending before the Supreme Court.

[iv] Molly S. Van Houweling, The Freedom to Extract in Copyright Law, (unpublished draft on file with the author)

[v] Standing Committee Report on the Copyright Amendment Bill 2010, available at https://prsindia.org/billtrack/the-copyright-amendment-bill-2010#:~:text=The%20Bill%20allows%20for%20the,for%20use%20by%20such%20persons.

Indian Copyright Law and Generative AI- Part 1 -Mere Storage as infringing?

Co-Authored with Sneha Jain

The scope of copyright liability of Generative AI (‘genAI’) models is a hot topic globally. copyright issues that stem out of genAI technology can be categorized into four heads. All the litigations in the United States form a part of one of these four heads:

Allegation of copyright Infringement due to copying/storage of copyrighted works as data sets for the purpose of training models;
Allegation of copyright Infringement due to substantial similarity of the output produced, as well as the output produced being based on the inputted copyrighted work;
Allegation of copyright Infringement due to lack of attribution or lack of disclosure/tampering with Rights Management Information;
Whether genAI models can be “authors” for the purposes of copyright law.

Most defense briefs in the various litigations filed in the US till now, have relied upon the transformative fair use defense to avoid copyright liability. Relying on the idea-expression dichotomy, these briefs have argued that genAI models have not copied any protectable copyright “expression” but only copied unprotectable ideas.

While the contours of the idea-expression dichotomy, the merger doctrine, as well as protectable subject matter, as applied in India, remains largely similar to the US copyright jurisprudence, the transformative fair use defense, as it has developed in the US, is not statutorily available under Indian law (though it arguably is available under judge-made law). A question then arises – how will such litigations fare under Indian copyright law? Will genAI tool providers like ChatGPT, Sora, SDXL Turbo, Google’s Music LM etc., face incremental risk under Indian law, even if they succeed in their transformative fair use defense under US law?

Through these series of articles, we will be exploring the peculiarities of Indian copyright law that may pose incremental risk to genAI tool developers, as well as models. Before we dive into legal issues, it is crucial to understand how a genAI tool is crated and works.

How are genAI tools are developed:

Visualize how a child learns reading and writing – by copying, imitating and repeated tracing of the alphabet (ABCs), followed by simple words, sentences and so on. Similarly visualize how a child learns to speak – by listening to and repeating sounds and words spoken by a parent/teacher or other care giver. Having learnt how to read, write and speak, the same child, being exposed to a wide spectrum of social, cultural and informational content and experiences, is not only intrinsically shaped by such content and experiences but also shapes the cultural realm through her contributions. It is this exact process of being shaped by, and at the same time shaping back, the cultural realm that genAI is mimicking through its algorithms that read the vast data sets of content and information available in digital form (‘training sets’) and extract ‘knowledge’ from the training sets. The ‘knowledge’ is nothing, but the meta-information embedded within the training sets. This knowledge extraction happens by firstly breaking and categorizing the data into fundamental ‘tokens’, secondly, identifying statistical patterns from the placement of such tokens to learn the relevance and context of each word in a sentence, and thirdly apply the knowledge to predict answers based on the statistical patterns learnt. Thus, what Gen AI systems most likely tend to do is “produce a “reasonable continuation” of whatever text it’s got so far. It essentially mimics the process of learning and knowledge sharing adopted by a human mind, by converting words into numbers (tokens) and finding massive statistical patterns for learning through the numbers. In other words, creators of genAI tools/models are attempting to create a human brain through computers, as opposed to through natural conception or IVF or test tube baby brains.

Whether storage by genAI systems is copyright infringement?

The current stage of training genAI models involves making copies (fixing) of data sets, which include copyright protectable works, and storing them for varied periods. Storage of data sets for the purposes of training can happen in three distinct ways:

Storage throughout the subsistence and use of the models.
Storage until the data is extracted and absorbed.
No storage, and use of Federated or Collaborative learning, where data sets are not stored on a centralized cloud server. The training happens through data on decentralized servers, i.e., without storing data on any particular server.

It is important to note that irrespective of the fact of there being a copy of the work, which is then stored, the same is solely used by the model developers for extracting the meta-information contained within the expression of the content, through the model, and is not exposed to any human. Copying and Storing are two different acts or uses of a copyrighted work. For training genAI models, though the model does read the content per se to tokenize it for the purpose of weighing the model and parameters, to gauge the logic of the next possible sequence, it is however not reading or enjoying a copyrighted work in the context in which a copyrighted work is meant to be seen or heard or enjoyed. For instance, a musician does not produce a song for the primary purpose of it being used for training. The primary purpose of the same is entertainment.

Under the Indian Copyright Act, the exclusive right of reproduction is conferred to owners of literary, dramatic, musical, artistic works, sound recordings and cinematographic films, as well as to the owners of performers rights and the broadcast reproduction rights. While the contours of the right may be different for each of these, the common thread is that reproduction and storage mostly go hand in hand The Copyright Act distinctly provides an exclusive right to copyright owner of a literary work, dramatic work or a musical work, under Section 14(a)(i) to reproduce the work in any material form, including the storing of it in any medium by electronic means. It also provides an exclusive right to the copyright owner of an artistic work under Section 14(c)(i) to reproduce the work, including storing it in any material form. In context of cinematographic films and sound recordings, Section 14(1)(d)(i) and 14(1)(e)(i), distinctly provides an exclusive right to copyright owners – to make a copy of the film/sound recording, including storing of it in any medium. Neither is “reproduction”, nor a “copy” defined in the Act. However, the definition of an “infringing copy” under Section 2(m) of the Act, clearly differentiates the concepts of “reproduction” and “making a copy”, as applicable to different set of works. Arguably, this is to eradicate any associated physicalism with literary, artistic, dramatic or musical – i.e., underlying works- and to showcase as to how reproduction of their forms of expression is relevant – and not the mere act of making copies which may not be for the purpose of reproducing the expression. The dictionary meaning of reproduction is to create or bring into existence again, and of copy is to imitate or transcribe. In MRF v. Metro Tyres, the Delhi High Court has also read the meaning of copy to be expansive to include imitation of the substance copied, and not merely a physical copy.

Reproduction includes the act of storing the expression of the work in any medium by electronic means. This deeming fiction of including “storage” within the meaning of reproduction was brought in by the 1994 Amendment to the Copyright Act to comply with TRIPS which extended protection to broadcasters and producers of phonograms. The Parliamentary Standing Committee Report in 2010, clarified that storage was to be held to be infringing specifically qua Internet Service Providers, who would unauthorizedly store content to provide exposure to the same for impermissible purposes.

The reproduction right protects recompense in the primary market for the owner of the work. It is to protect the owner of copyright from losing out economic returns by substitution in its primary market, by the act of copying the expression of the work, or unauthorizedly exposing the expressive originality of the work. This right is limited by various doctrines that have been developed by courts. For instance, courts do not extend the primary market of the work to ideas embedded within the expression. The idea-expression dichotomy clearly recognizes that protection is only limited to the expressive form, and the right only extends to denuding unauthorized reproduction of the expressive form of the work. This dichotomy has even been recognised in Article 9.2 of the TRIPS Agreement, which also explains that protection extends only to the original way in which the information or idea is expressed, and not to the information or idea embedded in the work. The Supreme Court in RG. Anand v. Deluxe Films has also recognised, while providing helpful guidance on the meaning of what constitutes a “copy” under the Act, that the fundamental fact to be determined for violation of copy is whether the manner, arrangement, situation to situation, scene to scene with minor changes or super additions have been adopted, as against the mere idea or information embedded. Even in Barbara Taylor Bradford v. Sahara Media, the Division Bench of the Calcutta High Court has recognised that ideas embedded within works are not protected, and only if the expression is appropriated would it form subject matter of copyright protection. The rationale of the same stems from the principle that copyright does not give an exclusive right over the information, experiences or facts embedded, but only over the concrete form in which these ideas are developed. Thus, unless reproduction, including storage is for the purposes of exploiting or substituting the market of the copyright owner in this concrete form, it would not be copyright’s concern. This principle espouses the complex compromise that copyright engages in with the freedom of speech, where access to using speech is restricted only to the extent of reproduction of its concrete form- in order to incentivize and acknowledge the creator of the concrete form of the speech, but not to the idea or information embedded within the speech. The Division Bench of the Delhi High Court in Wiley Eastern v. IIM has also recognised that copyright consciously restricts its application to ensure it does not override concerns of Article 19(1)(a) of the Constitution of India.

The merger doctrine, also recognised in India, further limits protection in those cases where the ideas expressed can only be expressed in a limited number of ways, are functional, or core to the genre of expression. Here as well, protection is limited to the concrete expressive form of the work and does not extend to, in any way, monopolize the idea embedded. Moreover, the de minimis rule further limits protection to the extent that trivial parts of the work being used, which do not form a substantial part of the expressive form of the expression, are not protected.

The focus of the reproduction right, as can be seen from these limiting doctrines, is on unauthorized exposure/consumption to the expressive forms of the work, as against use to extract ideas or the meta-information embedded in the works. In fact, these doctrines make sure that copyright does not stifle with the flow of ideas, however, protects the expressive form in which these ideas are embedded in order to provide economic baits for people to clothe these ideas in different original expressions.

The question is whether copying or storing, which is completely non-expressive or non-consumptive, that is – copying that does not involve appropriating the expression of the said work or exposing the expression to any human being, but rather is only for the purpose of extracting meta-information for weighing models and parameters, and training the genAI model, is an act of infringement? Would extraction of ideas constitute an existing market?

A few examples which scholars quote are – can reproduction of a book for use as a doorknob (a purpose for which the book hasn’t been written or published) be infringement, merely because a copy of the physical book was made? Can storage of student papers on a plagiarism software to decode whether the student plagiarized its paper with other papers available on the internet, be infringing use/copy/storage? Can a web-crawling software that makes cached copies of works on the internet, in order to enable search engines to respond to queries of search by matching queries with cached data, be infringing use/copy/storage that is a part of the reproduction right? Can use of a book for following the procedures provided therein be infringement of the reproduction right? Can use of books for allowing search of the said books by search engines, amount to infringement of the reproduction right? These are questions that Courts will have to grapple with in the coming times.

A purposive interpretation of the meaning of “Reproduction, including Storing of works” within Section 14 of the Copyright Act, would probably exclude an exclusive right over storage that is not for the purpose of expressive reproduction and is only for the purpose of extracting meta-information, in any case protected by the limiting idea-expression dichotomy in copyright law. The physical fact of storage or copying would be irrelevant to such an analysis- as long as the form of expression, i.e., the protected element in the work,is not being exposed to anyone.

To the contrary, however, a literal construction of the said provision would probably lead to a conclusion that extends the primary market of the copyright owner even to the mere storage/ or copying of the work, irrespective of whether the same is for a reproductive purpose (in an expressive context) or not.

Which way will the courts go is yet to be seen!

Transient Storage

Even if storage is considered to be infringing under Section 14 read with Section 51 of the copyright Act, Section 52(1)(b) and (c) specifically provide for exemption of transient or incidental storage of a work purely in the technical process of electronic transmission, and transient or incidental storage for the purpose of providing electronic link or access where the same is not expressely prohibited or infringing.

Courts will have to grapple with the question as to- (a) whether storage of training data sets for the training period, can be considered transient; and(b)whether storage of training data sets would amount to being incidental to providing access to the genAI model to extract meta-information.

The concept of “transient and incidental storage” was somewhat clarified by the Delhi High Court in MySpace Inc. v. Super Cassettes Industries Ltd. In My Space, the Court was dealing with the question of whether My Space can be obligated to monitor and review to report any infringing content of Super Cassettes on its platform. The Court while analyzing the purpose of the transient or incidental storage exception held transient to mean temporary, and incidental to mean subordinate to something of greater importance. This was deemed to include “cached data”, or other data generated automatically to improve performance of the core permissible function. Moreover, the text of the Copyright (Amendment) Bill which introduced Section 52(1)(c) shows that storage is permissible when exposure as a result of storage is permissible and non-infringing.

Thus, it is arguable that storage for the sole purpose and functionality of training, which arguably is a transformative and permissible purpose, would be incidental storage that is permissible under the said section. However, Courts are yet to clarify this.

On the aspect of temporary storage, legality would depend on how long the storage is for. If the data set automatically is removed once the meta-information used for training is extracted, it is arguable that storage would be transient and temporary, all the more due to the fact that not even one human is exposed to the stored copy. However, Courts would have to render more clarity on this aspect.

In any case, the next part of this series will delve deeper into use for extractive purposes and whether any of the defenses under Section 52, including fair dealing private use/personal use, use of illegal copies as against lawfully acquired copies, would probably extend to “use” at the training stage of Gen AI models – by AI or by the facilitator, i.e., the company building the AI, or not.

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