Digital Jurisprudence in India, in an AI Era (GS Paper 2, Governance)
Context
- The rapidly evolving technology of AI poses a significant challenge to existing legal frameworks and judicial precedents designed for a pre-AI world.
Generative AI (GAI)
- Generative AI (GAI) represents a transformative force with the potential to revolutionize society.
- However, existing legal frameworks and judicial precedents may struggle to govern this technology effectively.
- GAI refers to artificial intelligence capable of generating new content, such as images, text, music, and videos, based on patterns learned from existing data.
- It is used in various applications, including art creation, drug discovery, and generating realistic human-like conversations.
Safe Harbour and Liability Fixation
- One of the most contentious issues in Internet governance is the liability of intermediaries for hosted content.
- The landmark Shreya Singhal judgment upheld Section 79 of the IT Act, granting intermediaries ‘safe harbour’ protection against hosting content, contingent on meeting due diligence requirements outlined in Section 3(1)(b) of the Information Technology (Intermediaries Guidelines) Rules.
- However, applying this to Generative AI tools remains challenging.
- There are contrasting views on the role of GAI tools. Some argue that they should be considered intermediaries, akin to search engines, even though they do not host links to third-party websites.
- Others view them as conduits for user prompts, where altering the prompt changes the output, making the generated content akin to third-party speech and attracting lesser liability for the generated content.
- In the Christian Louboutin Sas vs Nakul Bajaj and Ors (2018) case, the Delhi High Court held that safe harbour protection applies solely to “passive” intermediaries, referring to entities functioning as mere conduits or passive transmitters of information.
- However, distinguishing between user-generated and platform-generated content is increasingly challenging with Large Language Models (LLMs).
- Liability for AI chatbots arises once the information is reposted on other platforms by the user; mere response to a user prompt is not considered dissemination.
The Copyright Conundrum
- Section 16 of the Indian Copyright Act 1957 stipulates that “no person” shall be entitled to copyright protection except by the provisions of the Act.
- Globally, there is reluctance to provide copyright protection to works generated by AI.
- The 161st Parliamentary Standing Committee Report found that the Copyright Act of 1957 is “not well equipped to facilitate authorship and ownership by Artificial Intelligence.”
- Under current Indian law, a copyright owner can take legal action against anyone who infringes on their work with remedies such as injunctions and damages.
- However, it remains unclear who is responsible for copyright infringement by AI tools.
- Classifying GAI tools as intermediaries, conduits, or active creators complicates the courts’ ability to assign liability.
- ChatGPT’s ‘Terms of Use’ attempt to shift liability to the user for any illegal output, but the enforceability of such terms in India is uncertain.
Privacy Concerns
- The landmark K.S. Puttaswamy judgment (2017) by the Supreme Court of India established a strong foundation for privacy jurisprudence, leading to the enactment of the Digital Personal Data Protection Act, 2023 (DPDP).
- While traditional data aggregators raise privacy concerns during the collection and distribution of personal information, Generative AI introduces a new layer of complexity.
- The DPDP Act introduces the “right to erasure” and the “right to be forgotten.”
- However, once a GAI model is trained on a dataset, it cannot truly “unlearn” the information it has already absorbed.
- This raises critical questions about data privacy.
Steps to Pursue
Learning by Doing:
- Consider granting GAI platforms temporary immunity from liability following a sandbox approach.
- This allows responsible development while gathering data to identify legal issues that could inform future laws and regulations.
Data Rights and Responsibilities:
- Overhaul the process of data acquisition for GAI training.
- Solutions could include revenue-sharing or licensing agreements with data owners.
Licensing Challenges:
- Licensing data for GAI is complex due to the lack of a centralized licensing body for web data.
- A potential solution is the creation of centralized platforms, akin to stock photo websites like Getty Images, to simplify licensing and ensure data integrity against historical bias and discrimination.
Way Forward
- The jurisprudence around Generative AI (GAI) is still evolving and demands a comprehensive re-evaluation of existing digital jurisprudence.
- A holistic, government-wide approach and judicious interpretations by constitutional courts are essential to maximize the benefits of this powerful technology while safeguarding individual rights and protecting them against unwelcome harm.
