AI models affect content creators since their works are absorbed into AI system without compensation. As we know, there has to be some regulation of the use of copyrighted material in AI training. This is an issue both in India and in other jurisdictions. Generative AI models ingest large volumes of copyrighted material. The Department for Promotion of Industry and Internal Trade (DPIIT) has released a working paper on regulating the use of copyrighted works.
The paper rejected the extreme positions. There cannot be free use of text-and-data mining (TDM). There is a suggestion for case-by-case licensing of copyright material. But it is not practical considering the scale and architecture of AI systems.
It is not possible to disaggregate training datasets into neatly identifiable units attributed to specific individual right holders. Granular permissions would be slow, fragmented and unworkable. It works in favour of the elite with resources having the capacity to negotiate at the cost of startups and small developers. Such costs could be absorbed by large firms, but not the startups and small developers.
The DPIIT would like to adopt a hybrid approach. There is statutory blanket license for all lawfully accessed works. Besides there should be remuneration right which should be activated on commercialization. It leads to legal certaintly.AI developers will not have to deal with a large number of individual permissions and yet the right holders would have a provision to claim predictable compensation. What is rejected is upfront payment and what is allowed is linkage to commercial deployment. It prevents prolonged litigation.
Another issue raised in the paper is retrospective effect. In principle, past training activities are to be brought into the remit of the new framework. However, this has several challenges. It is difficult to assess the extent of past training. Such models cannot be unwanted. There has to be calibration of retrospective royalty obligations, which is difficult. It could be arbitrary or prohibitive.
The nature of the license is mandatory. Here there are legitimate concerns. Individual consent is affected when the right holders refuse inclusion of their works. Individual consent is on par with property right. It converts private creative output into public use resource. Even if it attracts compensation, it goes against constitution. There is uncertainty about a central royalty — collection and distribution authority.
Nasscom suggests a broad TDM exception with opt-outs. Compulsory royalties in fact amount to innovation tax.
The paper is in the public domain. The majority view of the committee cannot be the final answer. Suggesation have to be invited from the public. There is a need for coherent legal framework. Blanket license is not an ideal solution. There should be pragmatism. AI training is structural. The legislation should use logic to make it implementable.
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