INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
12.2 Trade Mark and Copyright Use on the Internet The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 regulate online intermediaries. The Rules stem from the Infor - mation Technology Act 2000. Online intermediaries are granted safe harbour protec - tion under Section 79 of the Act if they comply with specific obligations and due diligence requirements set forth in the Rules. If these Rules are violated, or if the intermediaries choose to act in defiance of a court or government order, they lose their safe harbour pro - tection and become liable, along with the true source of the infringing content. The Guidelines mandate that all intermediaries exer - cise due diligence, which includes due diligence in the event of a trade mark or proprietary rights infringe - ment. Further, where a claim of infringement is brought to an online intermediary’s knowledge, the Rules require the intermediary to remove any restricted/ infringing content within 36 hours of obtaining actual knowledge of its existence. Additionally, the newly implemented Digital Personal Data Protection Act 2023 provides a Data Principal the statutory right to withdraw consent at any time, after which the Data Fiduciary must stop processing the personal data unless another lawful basis applies. This personal data may also contain IP assets.
personality rights and directed immediate deletion/ removal of videos featuring infringing content. 4. ANI Media v Open AI Inc. , Order dated 19 Novem - ber 2024 in CS (COMM) No. 1028/2024 This case filed in India follows other suits filed against OpenAI in the USA, Canada and Germany alleging infringement of copyrighted works by storage/use of the same by OpenAI as training data for its chatbot ChatGPT. It involves key legal issues including wheth - er such use would qualify as “fair use” under Indian copyright law. Though OpenAI has taken the defence that content owners are free to “opt out” from the use of their content as training data, the interesting issue is whether this would be fair. It is the early unrestricted access to data, including copyrighted data, which has made ChatGPT “intelligent”, leading it to build capa - bilities which would allow for future training even if access to training data is now limited. While in the first three cases, infringement was evident in the “output” of the AI tools, this last case highlights infringement by way of the “input” used by the AI tool, by way of its training data. In 2025, the Artificial Intelligence (Ethics and Account - ability) Bill 2025 was introduced in Lok Sabha to establish an Ethics and Accountability Framework for the use of AI technologies. The bill aims to ensure ethi - cal AI development and use, and proposes to impose harsh penalties. In a first, the Madras High Court very recently allowed the use of an AI-assisted system in pending commer - cial arbitration proceedings, restricting its use as a record-management and summarisation tool.
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