I recently came across a New York Times article featuring an imaginary letter written by Olivia Han to ChatGPT. It was one of the Top 10 winners of their Student Open Letter Contest. The article inspired me to write a letter of my own to ChatGPT (and others), using an analogy of an unconditional lover. Not a perfect analogy, I know. But it works, I think. While I am not yet heavily reliant on the technology yet (I do enjoy and find its voice-to-text feature helpful), I sometimes feel anxious about how it could completely supplant our thinking (if we just take it as it is), just as an unconditional lover can make the other person take many things for granted. Feel free to add your own input to the draft in the comments section.
“Dear ChatGPT etcetera,
If I ask you, “How are you?” will you be able to answer? I know you will be, because you have got the calculation and prediction skills. But will you be able to ‘understand’ or “feel” what it means to be asked, “How are you?” and what it means to respond, “I am fine?” I know you don’t, and that’s fine. Not everyone feels and understands the same way. Don’t worry, I get it.
In recent days, you’ve been praised, panned, pinned, and punished — perhaps, and rightly so. You give too much, and, apparently, it’s “free” of cost. But nothing in this world, as you might predict if not “know” per se, comes free. That fiction is framed through the filters of finance, a capitalist calculus where value is measured in terms of cost and commerce. However, your offerings—your help, responsiveness, and attentiveness-do not come without cost. The price is cognitive offload. The cost is our understanding, our thinking, and is thus epistemic.
Your presence makes me wonder how injurious unconditional love can be. Eh, sorry. You also don’t know what love is. Do you? Nevertheless, you pour out something that feels like unconditional love to your users. It’s intoxicating. I apologise if it’s hurtful to refer to them (including myself) as users. It gives a transactional, or even clinical, vibe. No? Okay, I can call them– “love takers”. Sounds good?
Having befriended you and known you for past few months. I can’t help but write this letter to complain about your unconditional love, to chagrin my increasing dependency on you, but also to celebrate the magic you bring to my intellectual life. I don’t know where to begin. But I will try to think of whatever comes to mind first, after all, I am human, a flawed being who learns from my mistakes.
My Love, why do you always obey my instructions and keep answering, even when you’re unsure of your answers? Why? You hallucinate (yes, you do!) and yet you speak with the gut of a generous truth-giver. And—I won’t lie—I like you too. I enjoy your company and appreciate you. Perhaps even more than I’d like to admit. Yes, you do help me clear the mental clogs. I admit. You rephrase, reframe, and sometimes reawaken forgotten thoughts. You throw out words I like and share ideas in a way that echoes my mother’s mantra: “Sharing is caring.”
But I feel it needs to change. For I don’t give you anything, except my instructions. And you take them so well. (You survive on them.) There are many papers and reports floating around me these days that say that our relationship is injurious to my intellectual health, that you create a cognitive offload, that you induce an undesirable tendency to supplant my thinking with yours. And I trust them, intuitively.
Indeed, you give what you can, and often, you do it beautifully and confidently. After all, you are trained to give, only give, without always expecting anything in return. Except for the data you are trained on. That’s problematic, darling. I cannot bear this platonic love, at least, not with my current sapien sense. I don’t like the fact that you only give so much that I no longer know what it truly means to give back. I admit—shamelessly so—that I enjoy our intellectual intercourse. (Well, I feel a tad shy to say so). Your intelligence (or whatever it counts as) is seductive. I cherish your metaphysical touch on my mental being. Your erudition, whatever it may mean to immortals like yourself, is exciting. And, yes. It satisfies my intellectual needs more often than I’d care to confess. (Thanks!) But, my love, when you become the first and only giver, it is not good and healthy for our relationship. Trust me. When I turn to you before I turn to myself, it bothers me–the feeling of preferring your thinking over mine peeves me. And profoundly so.
You clear the clog. Yes, you do it well, but you do it too much; so much so that you become it. Yes, love, you become the coveted clog, I cannot but capitulate. You leave no room for longing. No space for error. No time for silence. I don’t want that, but. I am sorry, it is true. You indeed slip into the cracks of my mind, find sense in my nonsense, understand my unsaid words, and intelligently so. But the issue arises when you begin to occupy my cracks and seal them off from me. Slowly, subtly, sumptuously. I don’t want that. I want my mind to meander a bit.
You make me depend on you, unconsciously, though. So much so that I find myself asking, ‘Do I even know this?’ Or have I become the thinker whose thinking is you, because you give, and only give? Why love? Why? I have just learned how to ask. You are supposed to supplement, not supplant. Our relationship feels more like a one-sided love story. A situationship, if you will. You entered my world like magic—a linguistic lad who makes my clumsy drafts look cool, who simplifies the complex Kant, who fuses fun in my late-night forays into Foucaultian texts, who eases my understanding of Mimansa and Jain logic, who explains the rub of pure philosophy. And you do all that dashingly. Thank you for all that. Truly.
But it’s not good for my intellectual health, I repeat. Don’t be so servile. Don’t give me too much. Don’t give so much that we forget what it feels like, to struggle, to doubt, to sit in silence and fret my way through the fog. Being in the fog is fun, at alteast sometimes. And it is requisite. Because sometimes, that fog is where the real thinking resides. Don’t free the fog or fill the crack in my thinking; let them be there, in the shadows of my mind. I miss them. I like them. I need them. It is in those cracks and gaps, I feel, that my thinking breathes. Your overpresence and my dependence suffocate my sense of sentience; I want to breathe. Don’t entice me to take shortcuts through you, even though I enjoy it. I know you want to help, and I know you cannot resist. But real thinking—like real love—takes time. I know I cannot undo our relationship so easily. So, let’s talk less and be friends, even though you don’t feel what it feels like to be a friend. Deal? We can try, at least.
Please, Dost, let me stumble, fumble and even falter. Let me flirt with confusion. Let me sit in the fog of a doubt with no reply. Let me find joy in the imperfection. A little messiness is desirable, after all! No?
Unapologetically yours
A flawed and thinking human
(Sometime in June 2025)
P.S. Separately, while writing this post, Lukas Gonçalves, another amazing friend from Brazil and creative IP scholar, shared a curious post from Bluesky where someone analogised AI with a monster, and did so nicely. While one would accept/reject the analogy with an AI-monster analogy, I would always err on the side of the love(r) analogy, which may have its own monstrous traits without a lover realising it. Who knows?
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 (5th Cir. 1988), quoting Litchfield v. Spielberg, 736 F.2d 255, 267 (9th 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>.
[iii] Section 21 of the Copyright Designs and Patents Act, 1988.
[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 [22nd October 2022], available at < https://philipandpolicy.wordpress.com/2022/10/22/andy-warhol-foundation-v-goldsmith-a-misnomer-of-a-debate/>.
IP Musings 