India’s Moment to Restore Balance to Copyright

Why in News?

The ongoing AI summit in New Delhi offers India a historic opportunity to rethink copyright law in light of technological change.

What is the historical evolution of copyright?

• The Statute of Anne (1710) – It was widely regarded as the first modern copyright statute, granted authors a limited monopoly of 14 years, renewable once.
• Protection required registration and deposit of copies in libraries, reflecting a balance between author incentives and public access.
• Indian Scenario – In colonial India, copyright law was introduced in 1847.
• Post-independence, the Copyright Act, 1957 became the governing statute.
• Over time, amendments have expanded the scope and duration of rights.
• Present status – Today, copyright protection vests automatically upon creation and extends for the author’s lifetime plus 70 years.
• The shift from a conditional, time-bound privilege to an automatic and prolonged monopoly has fundamentally altered the nature of copyright.
• Earlier, the public domain was the default and copyright the exception. Today, virtually every original expression — including social media posts and unpublished notes — is protected for decades.
• This expansion reflects what scholars term “copyright maximalism,” where protection is treated as absolute rather than balanced.

What is the issue between AI and the Centrality of Data?

• Basis of AI – AI models, particularly large language models, rely on vast quantities of training data.
• Web search engines and AI systems function by copying and indexing content from the internet through processes such as web crawling and text and data mining (TDM).
• Technically, such copying may constitute infringement unless covered by exceptions.
• Indian intervention – India’s 2012 amendment introduced an exception for “transient or incidental storage” for providing electronic links or integration.
• While this offers limited protection for search engines, it does not clearly address large-scale AI training.
• The absence of a broad, open-ended exception creates legal uncertainty for researchers and startups.
• Interventions of Other countries – In contrast, several jurisdictions have adopted explicit TDM exceptions:
  • The European Union – It provides statutory text and data mining exceptions under its copyright directive.
  • Japan – It permits uses that are not for “enjoying the ideas or emotions expressed” in a work, thereby covering data analysis by machines.
  • Singapore – It has adopted flexible copyright exceptions conducive to innovation.
  • The United States – IT relies on an open-ended “fair use” doctrine, which courts have interpreted to allow transformative uses, including certain forms of data mining.
  • India – It is lacking a comprehensive TDM exception or a general fair use clause, risks falling behind in the global AI race.
• Mechanistic use vs expressive consumption – A key distinction must be drawn between human consumption of creative works and machine processing of data.

• AI systems do not “enjoy” or “experience” creative expression; they analyse patterns statistically.
• Copyright law was originally intended to regulate expressive consumption and commercial exploitation, not mechanistic data analysis.
• Japan’s legislative language explicitly acknowledges this distinction.
• Such clarity ensures that copyright does not extend beyond its purpose.
• If machines are merely extracting statistical correlations, treating such activity as equivalent to human reading stretches copyright beyond reasonable limits.
• Copyright and Employment – Concerns about generative AI displacing creative labour are legitimate. However, copyright law is not a labour protection statute. Its objective is to incentivise creativity by granting limited monopolies, not to guarantee employment.
• History demonstrates that technological change often displaces certain professions while creating new ones.
• The advent of photography reduced demand for portrait painters but enabled new artistic forms.
• Similarly, automation reduced the need for telegraphists and typesetters while generating new sectors.
• If AI disrupts creative industries, policy responses should include public funding for arts, social security measures, or taxation of large AI firms.
• Expanding copyright protection to block AI training would be an inappropriate and ineffective tool.
• Protecting the Commons and Open Innovation – Copyright reform must also recognise the value of open-licensed AI models and datasets.
• Developers and researchers invest substantial resources to create open-source systems that benefit society at large.
• These contributions enrich the digital commons.
• Governments can play a constructive role by curating high-quality, locally relevant public datasets and establishing safe harbour provisions to protect such datasets from copyright claims when used for non-commercial or open-source AI training.
• This would align with the constitutional commitment to promote scientific temper and innovation.
• Lessons from the Accessibility Debate – The struggle leading to the Marrakesh Treaty demonstrates how copyright law can be weaponised to block socially beneficial technologies.
  • For instance, the Authors Guild opposed the “Read Aloud” function of Amazon’s Kindle, despite its value as an assistive feature for visually impaired users.
• Such episodes reveal a pattern: when new technologies emerge, copyright is often invoked to resist change.
• Over time, however, balanced reforms enable both protection and progress.

What are the policy recommendations for India?

• Introduce a Broad Text and Data Mining Exception – Explicitly permit copying for AI training and data analysis, especially for non-expressive uses.
• Adopt a Flexible Fair Use Clause – Move towards an open-ended exception capable of accommodating future technologies.
• Strengthen Public Domain and Commons – Incentivise open licensing and protect publicly funded datasets.
• Ensure Accessibility Safeguards – Build upon the spirit of the Marrakesh Treaty to ensure technology enhances inclusion.
• Separate Labour Concerns from Copyright Law – Address employment disruptions through economic policy rather than restrictive IP regimes.

What lies ahead?

• Copyright law was conceived as a limited instrument to promote creativity and the dissemination of knowledge.
• Over centuries, it has expanded into a near-perpetual monopoly covering almost all forms of expression.
• In the age of AI, this expansion risks stifling the very innovation it was meant to encourage.
• India stands at a crossroads. By embracing balanced exceptions and promoting the commons, it can demonstrate that intellectual property law need not be an obstacle to technological progress.
• Instead, it can be recalibrated to serve both creators and the public interest.
• The moment calls not for dismantling copyright, but for restoring it to its original purpose: fostering creativity, expanding access, and advancing human knowledge in the 21st century.

Reference

The Hindu| Restoring Balance to Copyright