Use of content by ChatGPT without necessary consent

Use of content by ChatGPT without necessary consent

Recently, ANI ( a news agency) has filed a copyright infringement suit against ChatGPT (Open AI platform) wherein ANI have alleged that ChatGPT has used its copyrighted materials to train its AI model, without due consent of ANI and such use, without due consent, amounts to infringement.

ANI has relied on the below mentioned three major cause of action in its suit for infringement—

1. Making copies of its copyrighted materials to train its AI model;

2. Verbatim of ChatGPT response is either similar or substantially similar to the content of ANI copyrighted materials;

3. False or misleading responses.

OpenAI has relied its defense on the below mentioned—

1. The material which has been used to train the AI model is freely available over the internet;

2. Similar lawsuits have been filed in multiple jurisdictions but none of the court has granted injunction against OpenAI;

3. It does not reproduce the material of ANI but rather generate responses based on various materials available over the internet.

Section 14 of the Copyright Act, 1957 provides for the meaning of copyright wherein sub-section (a) clearly provides that the exclusive right for making any adaption of the work or authorize someone to do such work shall lie with the first owner of copyright.

Merely saying that a material is available over public media and can be used without consent and such use will not be considered as infringement is erroneous claim and any use without the consent shall amount to infringement unless such use is exempted and falls within the ambit of section 52 of the Copyright Act, 1957. Section 52 of the Copyright Act, 1957 provides for certain list of events that will not amount to infringement and Fair Use is one of the widely accepted principle across the world. In the present case taking the plea of fair use will be quite a difficult to sustain as neither the use is private or personal or for research purpose.

Hamburg District Court dismissed the complaint for copyright infringement against LAION (Large Scale Artificial Intelligence Open Network) use of the photograph as the use by LAION was covered under the limitation specified in the German Copyright Act which permits the text and data mining for scientific research purpose.

The copyright Act, 1957 which governs the copyrights and the matters arising thereto in India is silent on whether data mining without consent for research purpose would amount to infringement or not.

Moreover, the terms of use of ANI website clearly states that creating any derivative work using the content available on their website, without the consent, is not permissible.

Now the Hon’ble Delhi High Court needs to determine whether—

i. Use of ANI content falls within the ambit of fair use;

ii. Does the use of freely available material require the explicit consent of the copyright owner;

iii. Using the material of ANI to train the AI model amounts to infringement or not.