Introduction:
Artificial Intelligence is a technological phenomenon, or a form of intelligence demonstrated by machines that can mimic certain activities in a similar manner as to the human mind. This also includes performing cognitive functions such as learning and problem solving[1]. The term “artificial intelligence” defines an aim of empowering “computer systems to perform tasks that normally require human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.”[2] It has the potential to influence human lifestyle to a great extent. Be it a google calendar reminder, movie suggestion by Netflix, customized advertisements or display of pop-ups that could cater to the interests of an individual even on a micro level, everything is directed by artificial intelligence. This phenomenon is also capable of modifying the manner in which a human may engage with a machine or with another human. For example, for every E-message on Gmail, the platform automatically comes up with three suitable responses. This feature called Smart Reply, grew significantly in the first year of its release itself and constituted up to 12% of the replies in inbox on mobile[3].
The world is growing towards more automation of services, and globalization of this concept is inevitable. While this technology benefits many sectors, the other side of this coin that is the threat is poses to the society if misused or performed in any unforeseeable harmful ways cannot be ignored. In order to positively limit the scope of AI with accurate restrictions, it is imperative to bind it to the sphere of law. Accountability and efficient checks are essential in the continued development of AI and its application. It would be highly impractical to consider the application of this technology devoid of any legal implications.
Broadly, some of the major concerns that surround AI are on privacy and data protection, then the fact that AI can formulate new ideas in the field of art[4] raises the question of the impact of Copyright laws to this. Moreover, it is also important to evaluate the usage of AI by big corporates selling goods to customers, on the lines of Competition Laws.
Laws concerning AI:
Data Protection and Privacy:
Data is a significant driver of AI functions and its access poses strong challenges such as usage without consent, risk of identification or discrimination, etc. thus a proper handling and ensuring security and privacy is of utmost importance. This concern was also raised in the National Strategy for AI[5] announced by the NITI Aayog in June 2018. The landmark case Justice K.S Puttaswamy and Ors v. Union of India and Ors[6] declares the Right to Privacy as a fundamental right. It does not specifically talk about AI but it clearly lays down the importance of data protection and privacy. Currently, there is no legislation in India on Data Protection, let alone data on the lines of AI. However, AI finds room with data protection in the Personal Data Protection Bill tabled at the Indian Parliament that talks about creation of a Sandbox for innovation in the field of AI[7].
Copyright Laws:
The source code, as well as object code of AI are protected as ‘literary works’ under Section 2(o) of the Copyright Act[8] and it is the developer of the AI application who is considered as the owner of those rights, unless he does that as an employee in his course of employment. Fair use and reverse engineering are also permitted under the Copyright Act.
If an AI application creates any intellectual property, the rights on such property cannot be conferred to the machine even if is an original and creative work because these rights can only be vested in “a natural person, a human being, and not an artificial person” as laid down in the case of Rupendra Kashyap v. Jiwan Publishing House[9] however AI is not a natural person or a human being, but an artificial person.
Competition Law:
With the growth of AI, it has become easy for certain enterprises to speculate and envisage consumer behaviour patterns. While it may seem positive as it allows these enterprises to cater to the needs of consumers as per their individual wants and desires, it makes the market closed for other enterprises that may not have access to such data. This has been noted by the Competitions Commission of India in an Order against Flipkart and Amazon.[10]
Under competition law, certain enterprise can be said to have a superior position in a relevant market[11] if the position it holds allows it to function independently of other competing forces in that market or that position affects those competing forces or consumers in its favour.[12]There are instances where these algorithms help enterprises coordinate their pricing policies and activities, thereby increasing their collective and individual profits causing adverse effects on fair competition[13] but it is difficult to declare the practice illegal as currently, the Competition laws contain no provision against usage of AI as a loophole by enterprises to collude amongst themselves off-paper.
Conclusion
AI knows what an individual likes watching on Netflix, when he has an important meeting, which song he would listen to at night, and so on. We do not realize how deeply AI has become a part of our day-to-day lives. Considering its rapid growth it can be said that the globalization of AI is inevitable, hence it is important to have regulations and guidelines positively limiting its usage. While there are laws that talk about persons and legal entities, there are very few provisions that include AI in the ambit. While the Copyright laws in India do not require major amendments with respect to the growth of AI, it is an alarming state for the Competition Laws and a level up is important. For instance, if some enterprises mutually decide on adopting a price estimating algorithm it may not amount to an illegal agreement but would still serve the ultimate goal. The legal infrastructure of India needs to evolve, so that AI is not used as a shield to conduct activities that may otherwise be illegal.
The article is authored by Tanish Arora (NUJS Kolkata, 2024)
References
[1] Russell & Norvig, Artificial Intelligence: A Modern Approach (2009).
[2] English Oxford Living Dictionaries, “Artificial Intelligence,” available at https://www.lexico.com/definition/artificial_intelligence
(Last visited in July 2, 2020).
[3] Brian Strope, Efficient Smart Reply, Now for Gmail, May 17, 2017, available at https://ai.googleblog.com/2017/05/efficient-smart-reply-now-for-gmail.html
(Last visited on July 2, 2020).
[4] Marnie Benney and Pete Kistler, Elgammal on using Artifical Intelligence, 2019, available at
https://aiartists.org/ahmed-elgammal
(Last visited on July 2, 2020).
[5] National Strategy for Artificial Intelligence, June 2018.
[6] Justice K.S Puttaswamy and Ors v. Union of India and Ors., AIR 2017 SC 4161.
[7] Personal Data Protection Bill, 2019, 373 of 2019, Cl. 40.
[8] The Copyright Act, 1957, §2(o).
[9] Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd., AIR 1996 DRJ 81.
[10] Competition Commission of India, Delhi Vyapar Mahasangh v. Flipkart and Ors., Case No. 40/2019.
[11] The Competition Act, 2002, §2(r).
[12] The Competition Act, 2002, §4 (Explanation a).
[13] The Competition Act, 2002, §3(1).