INDIA: An introduction to TMT: Technology & Telecommunications
Development of Anti-Piracy Jurisprudence
Piracy and proliferation of nefarious websites/domains and mobile applications serving predominantly, or even solely, infringing purposes has long plagued the Indian copyright industry and had a significantly adverse impact on rights-holders’ ability to exploit their exclusive rights to the fullest and maximise the economic potential thereof. Over the years, Indian courts have accordingly fashioned reliefs which effectively protect such rights through balanced and pragmatic reliefs – specifically through "dynamic injunctions". Borrowing from established practices in other jurisdictions, the High Court of Delhi, in 2018, delivered a pathbreaking judgment (UTV Software Communication v 1337x.to & Ors [2019 SCC OnLine Del 8002]) which recognised the need for and legitimacy of "dynamic injunctions" under Indian copyright law.
Since then, Indian courts have effectively tailored and evolved the relief of "dynamic injunctions" to cater to further practical concerns faced by rights-holders. Traditionally, such an injunction envisaged extension of blocking orders to websites subsequently found to be engaging in identical acts as those originally identified in the suit, through filing of appropriate/formal applications to array such additional websites as defendants. However, owners of rights in live sporting events were often left remediless in such circumstances, as by the time such an application was listed before the court for requisite reliefs, the sporting event had concluded and the deleterious impact of pirate websites had already been felt. Accordingly, conscious of such pragmatic concerns and to ensure that the court’s directions aren’t rendered ineffective, the scope of "dynamic injunctions" has been expanded to allow for real time blocking. In such a scenario, rights-owners may communicate details of the infringing websites to ISPs for urgent action in terms of the court’s directions, and simultaneously, file detailed affidavits with evidence demonstrating the "rogue" nature of such additional websites before courts. Recently, orders in the nature of a "Dynamic +" injunction have also been passed, which recognise and afford requisite protection to works which come into existence subsequent to the initial injunction order / TRO being passed by the court (for instance, Season 2 of a popular web series which is released subsequent to protection being afforded against piracy of Season 1 of the same series).
Such orders have ensured that India remains at the forefront in terms of effectively tacking piracy and counteracting the virtually instantaneous mushrooming of "rogue" websites in the most efficacious and proportionate manner. To this effect, Indian courts have also been very cautious to balance countervailing rights, specifically considering that such matters typically proceed ex parte. Accordingly, directions passed by Indian courts in such matters specifically provide that, in case a website blocked through such ex parte orders is engaged in non-infringing acts and is willing to furnish an undertaking to this effect, the court will consider lifting the blocking orders against such an entity/website. Having noted that, it is pertinent that despite over 100 anti-piracy/website blocking orders being passed by Indian courts, not a single website has approached court to date, and expressed a willingness to furnish the identity of its operators/developers and/or an undertaking to not partake in piracy. This hence demonstrates that, at the first instance, concerns of such ex parte orders being overbroad are adequately addressed and catered towards by India courts and, in any case, this further fortifies the "rogue" nature of such websites. India’s march towards considerably reducing piracy thus steadily continues through such effective and constantly evolving tools and innovative judicial remedies.
Onset of AI-related Litigations in India
India is witnessing a surge in artificial intelligence (AI) related litigation, and Indian courts are now being tasked with aiming to reconcile rapid and disruptive technological advancement with existing legal frameworks. Personality rights litigation has emerged as the most voluminous category of AI-related cases in Indian courts, as Indian celebrities have rushed to court to seek protection against the unauthorised use of their name, image, voice, and other personal attributes in AI-generated content, including deepfakes which have emerged as a serious cause for concern. The Delhi High Court, in particular, has granted notable orders recognising and enforcing personality rights in the context of AI – albeit, mostly in ex parte proceedings thus far. Courts have also issued directions to internet platforms such as Meta and Google to take down such AI-generated infringing content and provide details of the entities/persons responsible for creation or dissemination of such content.
Slowly but surely, copyright claims are emerging in the AI litigation landscape in India. ANI Media Pvt. Ltd. v Open AI Inc. and Anr. (2024), which is currently pending substantive adjudication before the High Court of Delhi, represents India’s first copyright infringement suit against a generative AI company. ANI Media has alleged that OpenAI’s large language model (LLM) training process illegally used their copyrighted content through web scraping, both directly from their website and through their subscribers’ licensed reproductions. OpenAI has defended its position by noting that no courts globally have granted injunctions against them in similar cases, emphasising their transparent data collection practices, blocking/blacklisting procedures, and arguing that they don’t store or reproduce copyright-protected data but rather transform it through training. Open AI has, however, removed ANI’s pages from its training as a part of its opt out process. Several organisations have also filed intervention applications (to participate and assist the court in these proceedings), including the Federation of Indian Publishers, Digital News Publishers Association, and Indian Music Industry – all supporting the plaintiffs’ positioning – with an AI startup (Flux Labs AI) supporting the defendant. The High Court of Delhi has appointed two amici curiae to assist in understanding the complex technical and legal issues involved, both of whom have taken contrasting views to the issue. Proceedings in this suit are hence likely to have a significant impact on the construction and enforcement of the Indian copyright law framework in relation to the disruptive technology of GenAI models.
Notably, various Public Interest Litigations (PIL) have been filed seeking judicial intervention to address the challenges posed by AI, particularly deepfakes. These petitions seek legislative amendments to the Indian Copyright Act, 1957 and the Information Technology Act, 2000 to address these concerns, directions to identify and block public access to unregulated applications enabling the creation of AI-generated images, formulation of guidelines to develop a mechanism and framework for AI regulation, etc. The High Court of Delhi has taken these concerns seriously, directing the Union of India to file a detailed report on measures taken to address the issues raised.
The current wave of and steady increase in AI-related litigations in India highlights significant gaps in India’s legislative framework. For instance, there is no comprehensive or express statutory recognition of personality rights in India. While Indian courts have filled these gaps through judicial innovation from time to time, the need for systematic and pointed redressal of such concerns, through legislative intervention, is apparent.
Constant Balancing Act between Freedom of Creative Speech and Social, Cultural, Economic or Religious Sensitivities
In a country as vast and diverse as India, creators of expressive works and content are often faced with the looming threat of objections to the nature or subject-matter of their works, the inclusion of references to particular religions, cultural groups, professions, etc, or depiction of content which traverses beyond traditional norms. Notable content litigations have arisen in the past few years (pertaining to titles such as "IC 814", "Trial By Fire", "Maharaj", etc), spanning across the aforesaid issues and raising questions of law regarding the balancing act between the constitutionally enshrined freedom of speech and creative expression and reasonable restrictions which may be placed on the same. Such reasonable restrictions may be in the interest of, for instance, preserving public order (in proceedings involving widespread hysteria on account of purportedly defamatory or hurtful depiction of or references to religious sects, institutions, etc) or to uphold provisions of applicable law (for instance, in proceedings alleging trademark infringement on account of the use of a registered trademark within a work or as the title of a work).
Indian courts have typically come to the aid of content creators in proceedings which are borne out of hypersensitive or hysterical reactions to such works, emphasising time and again that the content in question must be seen as a whole and from the perspective of a reasonable viewer and contemporaneous societal standards. However, the steady increase in such content litigations, coupled with the recent societal outroar to the dissemination of offensive and vulgar statements by a renowned Indian podcaster, has once again brought content (specifically content disseminated through digital platforms) under the cosh, potentially subjecting such content to enhanced judicial and regulatory scrutiny. In light of these developments, the digital content space sticks out as one to carefully monitor in the coming months!