Concerns about AI systems misusing original content have been long raising alarms across industries including news publishing, in India. But are Indian publishers prepared to follow The Times’ lead and take on tech giants in the face of AI content misuse? Legal experts highlight potential safeguards for publishers, emphasising on copyright laws, IT regulations, and consumer protection laws.
“When original content of a media house is lifted and reproduced (wholly or substantially) in a piece generated by any third party or an AI tool in this case, legal remedies will be available under the copyright law. This is of course subject to ‘fair use’ under Section 52, for example, academic use, transient use merely for the purpose of electronic transmission and several other exceptions,” said Sudarshan Singh Shekhawat, an intellectual property rights expert and founder of Shekhawat Law firm.
Thus, even assuming that there is an underlying original content being used by an AI, it will have to be examined for each use-case, as to what is the extent of the use of the original content and whether such use amounts to infringement.
However, Shekhawat highlights that it is important to note that by ‘original content’ what is meant is the ‘expression’ of ideas/facts and not the facts or ideas themselves. This goes to the core of the copyright law principles.
Wrong attribution is something that is addressed on a daily basis on social media and should be preferably addressed through dialogue, discourse or conversations, without legal recourse, experts said.
“Operators/managers of AI tools usually have a feedback system or an email address where issues can be raised. However, if a ‘wrong attribution’ is disparaging, defamatory or otherwise injurious to any person, it may be actionable under law depending on facts of each case,” he added.
The open AI challenge
Indian digital news publishers who are already fighting for a fair revenue share with internet giants are now looking for ways to battle the new challenge of open AI with content protection being their primary focus.
Mirroring their global counterparts, news publishers are weighing in on their options. While some have started conversations with the tech giants, some are considering blocking it.
“This is an uncharted territory for us and we are learning from global trends. Blocking comes at a much later stage. Our immediate priority is to work a way around protecting our content and we’d try to solve it amicably first. Suing comes at a cost so it is not our first option,” said a regional publisher on conditions of anonymity.
Moving on from copyright laws, another intellectual property rights expert, Subhash Bhutoria, founder and principal at boutique law firm LAW SB, said in case the data (of news publishers), whether or not proprietary, is accessed without permission or through illegal means, provisions under the IT Act and Criminal Laws can also be invoked.
“Output generated by AI is based on large datasets and thus as of now, It may be difficult to identify the source of wrong or false information or to rectify the error by modifying the transformer model. Aggrieved can, however, seek damages for causing loss of reputation and even under consumer protection laws for deficient services in case the media house has used the services as a consumer,” Bhutoria added.
Experts also suggested that as a precaution, media houses can publish disclaimers and cautionary notices to the public at large, to disassociate itself from any third-party source including AI models.
Existing laws can help
Making changes in some of the existing laws can address some issues Indian news publishers have been facing when it comes to Big Tech, said experts. For instance, a fair revenue share arrangement with the Internet giants can be worked by introducing changes in the IT rules.
According to Nikhil Varma, IT law expert and managing partner at MVAC Advocates and Consultants, changes in IT rules can contribute to achieving fair revenue sharing between big tech and publishers by introducing regulations for equitable agreements. While the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, provide a regulatory framework for digital media, they may not explicitly address revenue sharing mechanisms.
Existing laws that can address this issue include competition laws, contract laws, intellectual property laws, consumer protection laws, data protection laws, and media regulations.
“These laws collectively provide a legal framework to ensure transparency, fairness, and protection of the interests of both Big Tech and publishers in the evolving digital media landscape,” Varma said.