INDIA Law and Practice Contributed by: Mohit Goel, Sidhant Goel, Aditya Goel and Mehr Bajaj, Sim and San, Attorneys at Law
derogatory treatment). Moral rights are personal to the author, survive assignment of copyright, and are not freely assignable. Indian courts have applied Section 57 to AI-driven harms in the following cases: • in Arijit Singh v Codible Ventures LLP (Bombay High Court, 2024), AI voice cloning was restrained; and • in Jaikishan Kakubhai Saraf v The Peppy Store (Delhi High Court, 2024), a chatbot was restrained from commercially using an actor’s persona. 3.5 Term of Protection and Termination For literary, dramatic, musical and artistic works, copyright subsists for the author’s lifetime plus 60 years from the beginning of the calendar year follow- ing death. Cinematograph films, sound recordings, photographs and government works are protected for 60 years from first publication. Performers’ rights subsist for 50 years from performance; broadcasting rights for 25 years. Assignments without specified duration are deemed valid for five years; assignments without specified ter- ritory are limited to India. The 2012 amendments intro- duced inalienable royalty entitlements for authors and composers of works incorporated in films or sound recordings. 3.6 Limitations, Exceptions and Defences India follows a fair dealing framework under Section 52 of the Copyright Act, 1957, rather than an open- ended fair use doctrine. Permitted purposes include: • private or personal use (including research); • criticism or review; • reporting of current events; and • specified educational and instructional activities. The most contested issue is whether training AI mod- els on copyrighted content qualifies as fair dealing. The DPIIT has taken the position that no automatic fair dealing defence exists for commercial-scale AI train- ing. In ANI Media v OpenAI (Delhi High Court, 2024), the Court identified four unresolved questions:
• whether storage for AI training constitutes infringe- ment; • whether generating responses from stored content is separately infringing; • whether any of this qualifies as fair dealing; and • whether Indian courts have jurisdiction over foreign servers. 3.7 Copyright Enforcement and Remedies Infringement Section 51 of the Copyright Act, 1957 defines infringe- ment as any unauthorised exercise of the copyright owner’s exclusive rights, including reproduction, dis- tribution, communication to the public, adaptation, performance, and importation of infringing copies. Civil Remedies Under Section 55, available remedies include: • interim and permanent injunctions (including ex parte, Anton Piller-style, John Doe and dynamic orders); • damages based on actual loss; • account of profits (as an election); and • delivery-up. Dynamic+ injunctions protect content before public release. The 2026 IT Amendment Rules require plat- forms to take down deepfake content within 36 hours, label AI-generated content, and embed traceable identifiers; non-compliance risks loss of safe harbour. Criminal Remedies Under Section 63, knowing infringement is punish- able with imprisonment of six months to three years and fines. Software piracy (Section 63B), possession of infringing plates (Section 65) and circumvention of technological protection measures (Section 65A) also attract criminal liability. 3.8 Infringement Tests and Substantiality Courts assess substantial copying qualitatively rather than quantitatively, focusing on whether the defend- ant has appropriated protectable expression embody- ing the author’s creativity. Even a small portion can constitute infringement if it represents an essential or distinctive aspect of the original. For software, courts recognise non-literal copying of structure, sequence,
120 CHAMBERS.COM
Powered by FlippingBook