intellectual-property

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/>.

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