17 ASIAN LEGAL BUSINESS – APRIL 2024 WWW.LEGALBUSINESSONLINE.COM AI IP legislation” is still in an embryonic stage. “For instance, should the rights (of copyright protection) be granted to the user of AI generated content or the developer? Should it be an individual or an entity? If the same prompt words are used and different images are generated each time, how to reconcile the contradictions in ownership and technical details?,” asks He. He believes that in the short term, breakthroughs in AIrelated IP issues in Chia are likely to come through case law in various courts as opposed to from a legislative level. Another major crux testing IP lawyers in the era of AI is the use of proprietary content in training especially commercial large language models (LLMs). That’s because Gen AI tools are fed existing compilation of articles and images scraped from the internet to mimic text structure and recognise shapes and patterns in pictures. “There is potential infringement if the developer of the AI was not granted a right to use the source material to train its AI. There may also be infringement if the AI-created output is substantially similar to the source works of copyright owners,” says Lauw. Jonathan Chu, a partner at CMS in Hong Kong, lays out the questions on the top of the mind of judges. “On one hand, would this be no different than a human using resources online and the public library to learn about the world, and then creating a work or invention based on that knowledge? On the other hand, should there be some implied limitation on the use of such resources whereby some may be expected to not be used for commercial purposes?” On this front, the Indian government believes its existing IP rights regime is well-equipped to protect AI-generated works, and there is no need to create separate category of rights. Vaishali Mittal, a partner at Anand and Anand, points out that India is one of the few countries that have allowed co-authorship of AI in a work created using it. Mittal also highlights the issue of “deepfakes” and protection granted by Indian courts to victims of this type of AI-powered digital manipulation. She cited the case of Indian movie actor Anil Kapoor, who clinched a landmark court victory against websites that featured deepfakes using his likeness. “The Court has granted protection to Kapoor’s individual persona, and personal attributes, against misuse, specifically through AI tools used for creating deepfakes. The Court directed immediate blocking and suspension of the domain names involved in propagation of such deepfake contents and ordered that such links must be taken down by the internet service providers,” notes Mittal. As jurisdictions in Asia, diverse in culture and legal systems, gradually establish positions on AI-related copyright issues, IP lawyers are tasked with keeping pace with technological advancement and how it has fundamentally upended and transformed the copyright legal framework by its root. “We can expect an evolution of the law and the way we use technology in relation to IP rights. I anticipate trademarks being more important and valuable, especially if AI ends up evening up the playing field by allowing more access to content and innovation,” says Chu. “On one hand, would this be no different than a human using resources online and the public library to learn about the world, and then creating a work or invention based on that knowledge? On the other hand, should there be some implied limitation on the use of such resources?” — Jonathan Chu, CMS Image: TippaPatt/Shutterstock.com
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