The Delhi high court has spared AI training from copyright liability—but by relying on an exception it rests the legality of training practices on a determination of fair dealing—a reprieve that needs to be proved in every instance. What the industry needs is a clear and invariant rule.
In recent months, there have been more than a few court rulings on the copyright implications of training artificial intelligence (AI) models. Last month, the Regional Court of Munich held that AI music generator Suno had violated copyright by training its model on a catalogue of German song lyrics, a verdict similar to the one it had handed down last November against ChatGPT. These rulings state that training involves storing content within the model, an act of reproduction tantamount to infringement.
In India, the Delhi high court in the case of OpenAI vs ANI became the first Indian court to rule on the issue. Justice Amit Bansal dismissed news agency ANI’s application for an interim injunction by declaring that training a large language model (LLM) is not a violation of copyright.
Right Result, Wrong Route
I was glad to see that in coming to its conclusion, the court adopted a human-learning analogy similar to the one I made in past articles. It went so far as to say that since machines process text to extract the information it contains, they engage in research much like human scholars do. The court also pointed out—as I have done before—that since there can be no copyright over facts, any training process that involves the extraction of information from a piece of content, separating it from the specific words used to express it, cannot be said to have violated copyright. As much as the Delhi high court’s opinion is laudable, it has elements that cause concern.
Having concluded that there is no copyright violation in extracting facts from the information contained in training data, the court, as a natural extension of that analysis, should have held that no part of the training process can, as a result, rise to the level of copyright infringement. If model training is no different from learning—as the court was so quick to conclude—surely no claim of copyright violation can stand.
The court, however, came to a different conclusion. It concluded that the ANI articles whose copyright infringement was alleged to have taken place were in fact stored for the duration of the training, and since no permission was obtained for this transient storage, it had been wrongfully copied. However, since all training is a form of research, this act of storage fell within the fair dealing exemption under the Indian Copyright Act and did not amount to infringement.
What does it matter, one might ask, if the court arrived at the correct conclusion through a different route? Isn’t dwelling on the distinction between an act that is not tantamount to infringement and one that is but has been permitted under an exemption just hair splitting?
A Defence, Not a Right
Distinctions matter. Fair dealing is a defence, not a right, and if we are going to justify AI training by claiming that even if it has been illegally copied, it is permitted under an exemption, we will have to establish that these grounds exist every time we embark on a training run. This will require us to continuously weigh the purpose of each use, the quantum copied and its effect on the market for the original. The operational uncertainty this will generate will be a precarious foundation on which to build an industry.
Fair dealing is a creation of Indian statute and as such its influence stops at the national border. Any training run that a Delhi court is willing to forgive could well be one that Munich will not. An AI industry that trains its models on the world’s content and serves users everywhere cannot afford to ground the legality of its operations on the exemptions granted by one country only to have it denied by the next.
But there is an even deeper fragility that threatens the uneasy assurance that the Delhi high court judgement seems to provide. Unlike the more open-ended ‘fair use’ standard under American law, fair dealing under Section 52 of India’s Copyright Act is tied to a narrow list of permitted purposes—research, criticism and review. To qualify under the ‘research’ exemption, the court has had to read the provision in a far more creative manner than its drafters contemplated.
While OpenAI may have prevailed against ANI in this instance, other courts in India may potentially take a less forgiving stance under different circumstances.
No Copy at All
I am not sure why the court felt compelled to conclude that content was being “stored” during training when that is actually not what happens. Whenever an article is processed during the training cycle, all that the model retains is the statistical residue of having read it but none of its actual contents. What the model carries forward is expressed in the form of weights—mathematical parameters that have no bearing on the actual words and phrases that make up the text of the article. Even if such a connection can be established, all that will be revealed is a collection of facts shorn of the “form and expression” that our copyright law protects.
While OpenAI may have been successful in this particular context, that is no guarantee that the next AI company asked to defend infringement during the training process of its models will be just as lucky. An industry that relies on the continued extension of an exemption from a rule is one whose existence will forever be conditional on the mercy of those who have the power to condone its application.
Today, all the court has granted the Indian AI industry is a temporary reprieve from prosecution. What it really needs is a clear and invariant rule.