By Shantanu Mukherjee, Anushka Iyer and Shruti Gupta
Artificial Intelligence (AI) is the flavour of the season. Since Open AI’s chatbot, ChatGPT, exploded onto the scene in November 2022, AI has become the single most exciting thing in tech: Microsoft invested $ 10 billion in OpenAI and integrated its engine into Microsoft’s suite of products; a dizzying array of AI tools have entered the market; and roughly $ 1.7 billion has been invested in AI companies in Q1 of 2023 alone, according to PitchBook data.
Legal and ethical concerns
“Is this a dagger I see before me, the handle toward my hand?”
AI is generating art, writing code, and inventing drugs. But this sudden, unregulated proliferation of AI has also sparked lawsuits, controversy, and calls for AI regulation globally. Concerns have been voiced over AI taking human jobs, perpetuating bias, violating data privacy, breaching competition, intellectual property (IP), and contract law, and generally posing an ‘existential risk’ to mankind.
Many artists have filed a class action lawsuit against Stability AI, Midjourney, and DeviantArt, alleging that they used artwork protected by copyright to train AI models without authorisation from the creators. The Center for Artistic Enquiry and Reporting has published an open letter referring to such unauthorised use of copyrighted images as the ‘greatest art heist in history.’
As AI has grown more sophisticated and capable of independently creating works, several questions surrounding IP have arisen, including whether AI tools can be said to infringe IP and whether they may be regarded as inventors or creators under law (most jurisdictions have held that they cannot). As for India: computer programmes and software by themselves cannot be patented under Indian law unless they exhibit a technical effect, but the Delhi High Court has recently noted that in light of “emerging technologies”, India may need to reconsider this position.
AI oversight and regulation
“Methought I heard a voice cry, ‘Sleep no more’”
OpenAI CEO, Sam Altman made the news early in May when he agreed that legislation was necessary to regulate AI, in his testimony before the US Senate Judiciary Subcommittee on AI oversight, but then threatened to pull out of Europe if they found compliance with the EU AI Act too challenging.
While several countries, including China and Singapore, have AI legislation in the works, the EU AI Act, which may become law in a few months, is probably the most comprehensive. Together with the AI Liability Directive, it seeks to implement a sweeping and restrictive AI governance framework, which will, among other things, require the developer to disclose if any copyrighted material has been used to develop the AI system (which could change how generative AI tools are trained), and implement a blanket prohibition on the use of AI for biometric surveillance, emotion recognition and predictive policing (clearly, Spielberg’s Minority Report made an impression).
While the US doesn’t have a comprehensive federal AI regulation, the White House has released an “AI Bill of Rights”, which identifies key principles such as building safe and effective AI systems and considering human alternatives as a fallback to minimise its risks. Some US states have proposed draft laws to regulate automated decision-making systems in the fields of employment, education, housing, health care, and financial services, among others.
India
“Tomorrow, and tomorrow, and tomorrow”
India currently has no AI legislation, draft or otherwise, but NITI Aayog has published two papers identifying key challenges to the adoption of AI in India; legal and ethical concerns surrounding AI use; and the need for self-regulation and collaboration between industry stakeholders. Separately, the Indian Council of Medical Research (ICMR) has released guidelines governing the use of AI in biomedical research and healthcare which prescribe, among other things, an ethics review process and requirements for a valid informed consent.
With growing international consensus on AI oversight, it appears increasingly likely that AI-specific legislation in some form is inevitable in India. Following Sam Altman’s testimony, Union Minister Rajeev Chandrasekhar addressed the question on AI governance by saying that India would do “what is right” to protect its citizen’s rights and regulate AI with the “prism of user harm”. According to him, the Digital India Act (which is set to replace the Information Technology Act, 2000) will contain an entire chapter on regulation of emerging technologies including AI.
Shantanu Mukherjee, Founder, Ronin Legal; Anushka Iyer, Associate, Ronin Legal; Shruti Gupta, Intern, Ronin Legal.
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