Warfare of Art & Law Podcast
Warfare of Art and Law Podcast sparks conversation about the intriguing – and sometimes infuriating – stories that arise in the worlds of art and law with artist and attorney Stephanie Drawdy.
Warfare of Art & Law Podcast
IP and Tech Attorney Ankit Sahni on the RAGHAV AI Painting Tool and "Suryast" Copyright Registration Efforts in India, Canada & the US
Show Notes:
1:00 Anki Sanhi
1:45 Sahni’s background and work
5:00 Eric Raymond’s The Cathedral and the Bazaar - essay on open source development
6:40 association with the arts
7:45 trademark enforcement work
10:00 infringement case between client working in fashion space sued by global brand
12:30 origin of the Raghav project
16:45 process to use Raghav
18:30 Van Gogh’s Starry Night
21:00 Raghav = Robust Artificially Intelligent Graphics and Arts Visualizer
21:45 Indian copyright application for “Suryast”
25:40 Section 2(d) of Indian Copyright Act, definition of author
34:30 Canadian copyright application for “Suryast”
35:35 Notice of Application filed in Canadian Federal Court by Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) against Sahni over “Suryast”
37:10 US copyright application for “Suryast”
37:35 Sahni’s US Counsel, Alex Garens, Esq. with Day Pitney
38:00 USCO decision on “Suryast”
43:30 India’s definition of ‘author’ - no qualifications
46:50 Parliamentary Standing Committee recommended creation of new right for AI works per Sahni’s recommendation
47:05 February 2024 - Union Minister of State Commerce in India’s Parliament submitted that there is no need for creation of a new right and current legislation offers sufficient protection
48:45 ambiguity in Canada law on AI
49:40 USCO’s Request for Comments
52:00 Sahni’s position of need for amendment of US law to address AI
53:50 Optimus
54:50 Definition of justice
56:30 global harmonized principles on AI
57:30 injustice of humans unknowingly competing against AI due to historic suppression of AI use
59:00 Sahni’s intent to contribute to the change in law to address AI
1:00:00 consultation with Ryan Abbott, Esq.
1:00:50 Future projects
1:02:20 shaping issues where art and law intersect
1:03:30 cultural impact of the debate over human authorship, AI and art
1:04:30 comparison of photography to AI
Please share your comments and/or questions at stephanie@warfareofartandlaw.com
Music by Toulme.
To hear more episodes, please visit Warfare of Art and Law podcast's website.
To leave questions or comments about this or other episodes of the podcast and/or for information about joining the 2ND Saturday discussion on art, culture and justice, please message me at stephanie@warfareofartandlaw.com.
Thanks so much for listening!
© Stephanie Drawdy [2025]
So I think we should embrace technology, as humans have always had, without carrying any apprehensions regarding any negative things that might impact culture or society as a whole.
Speaker 2:Welcome to Warfare of Art and Law, the podcast that focuses on how justice does or doesn't play out when art and law overlap. Hi everyone, it's Stephanie, and that was intellectual property and technology laws attorney Ankit Sanhi. In the following conversation, we discuss what drew him to IP and tech law and the motivation behind the Raghav Project and tech law and the motivation behind the Raghav project. We also discuss the range of responses he's received from his copyright applications to India, canada and the US for registration of the Raghav output entitled Suriast, and we close with considerations about the definition of justice and the cultural impact of emerging tech overlapping with art. Ankit Sanhi, welcome to Warfare of Art and Law. Thank you so much for being here.
Speaker 1:It's a pleasure, stephanie. Thank you so much for giving me the opportunity to be on your podcast, and I'm really looking forward to our conversation today.
Speaker 2:As am I, and perhaps we start with you giving a bit about your background and your work.
Speaker 1:Sure. So you know I've had a rather cliched background and career so far as IP and technology laws is concerned. I'm a second generation technology and IP lawyer, so it started very early, and almost in middle school is when I nearly made up my mind that I'm going to go in the direction of pursuing a law degree with specialization in intellectual property, innovation and technology. I was always deeply passionate about technology. I was also my school's computer society's president. Back then this was the terminology that we would use for anything which was tech-related. So it was our school's computer society, and I would basically be very much engaged in all kinds of inter-school competitions pertaining to programming and quizzing and so on on various aspects of technology. I also, incidentally, was one of India's youngest to qualify Microsoft certified professionals at the age of 14. And so it kind of almost was natural for me to get an opportunity to be where I am, as I'd always thought of being in this kind of role well, that is such a rich background.
Speaker 2:Like you are steeped in this work, and so I do wonder, like you had opinions early on about IP protection, can you kind of walk us through that and how they've evolved?
Speaker 1:Sure. So by this do you mean how the concept of IP protection may have evolved? Do you mean how?
Speaker 2:the concept of IP protection may have evolved. Yeah well, just like your opinion. Like some people are open source of the opinion that open source is the way to go, and others are very steeped in protecting and keeping it safe from use. So I wonder, like, has there been an arc in how you've seen that or how is that for you?
Speaker 1:Yes, in fact, I'm so glad you brought up the question. You know, there's one thing that I noticed in this journey, and while we were growing up and you know I went to law school, and while we were growing up and I went to law school when we start off as students, we're naturally given various perspectives, and the credit to that goes to our teachers. And what I've learned is, when you start out, the purpose of really pursuing a law degree as you may have felt yourself the same way at some stage, I believe is really to do justice and your perspective's a bit more leaning on the liberal side than on the capitalist side, because that is the kind of exposure, the academic exposure, that you get. So, you know, one of the early works that inspired me was Eric Raymond's the Cathedral and the Bazaar, and I was deeply fascinated by the world of open source.
Speaker 1:Wikipedia had just become a thing, wikipedia had just become a thing, and for a model like that to exist on global contribution amongst a set of people, individual parts that they contributed, was the biggest fascination. But then, you know, the devil gets the best of us, as I like to say. And when you join the profession, when you get the opportunity to represent companies, large corporations, and defend their rights in court or enforce their rights in court of the spectrum all the way to pro-protection and pro-right holders, because you're really fighting for your clients and representing them each day in court or before the IP office and so on.
Speaker 2:Yeah, absolutely, and I also. Just as an aside, did you also have a background in the arts, or like, what is your exposure and involvement with the arts?
Speaker 1:So I've always been passionate about art. In general, I've had a thing for theater and drama. I used to be part of a theater group when I was in school, so I've always had a lot of admiration for artists of our era, artists of the times, the eras that have gone by, and in that sense I remain associated with the arts. But besides that, I haven't really had any formal education or training in the arts field as such.
Speaker 2:Well, so then, I guess I would be curious to know, like this, this law and tech work that you've been doing like. Are there certain cases that excuse me, certain cases that stand out to you as being emblematic of the work you do, or certain ones you might want to highlight?
Speaker 1:I've done more of cases on the trademark law side. I'm primarily a trademark enforcement person, if I could put it that way. Of course, we all have had our fair share of contesting for clients in design and copyright cases as well. I am fortunate to represent a few leading music artists and some leading painters from India, and we represent their interests both commercially as well as in terms of protecting their personality rights and other aspects. But largely as a trademark lawyer, we've spent more time defending large brands from being counterfeited or from bad faith registrations or attempts at passing off. So I wouldn't say that my professional journey has really had much association with the Raghav project or with Suryast as such. But you know there have always been interesting matters. I can probably spend a minute or so talking about one of the interesting mandates that we got, because it involves certain aspects which are still confidential, to the extent that that particular matter is still live. I will refrain from using names, but I will try to fill in on the interesting tidbits. So we basically got a mandate from a large Indian multinational corporation that was interested in, that was interested in acquiring master rights, licensee rights to a large global brand, a retail brand, and they came to us, the business folks, saying that they tried their best to impress the guys back in the United States for giving them the exclusivity for brand rights in India and the subcontinent, but couldn't succeed. So their strategy was as follows they wanted to create a copycat product or series of products this was in the fashion space but not make it enough punitive as to really be injuncted from court. So they wanted to be cheeky enough to throw some bait and since they were one of India's largest multinational corporations, they had a vast retail presence across several Indian cities and online. They wanted to leverage that to show to the global brand that they could do so much more if they were collaborating. So, with discussion, jointly, we ended up.
Speaker 1:Well, the company guys, the brand guys, the business folks ended up creating a product based on our advice and launched it. We had a mega launch. Naturally, it was meant to be a bait throwing exercise and therefore the bait was caught and the large global brand sued us. And then we were successful in defending an infringement action and didn't let them succeed in getting an injunction against us. They went to the appellate bench and we succeeded again and the matter got compromised and the terms of compromise included them handing over the global exclusive distribution rights to my client. So we've had all sorts of interesting mandates over the global exclusive distribution rights to my client. So we've had all sorts of interesting mandates, but this is one that just came to my mind because it's recent and it's one of the more cheeky ones that we've got.
Speaker 2:Yes, congratulations. Thank you, yeah well, I wish you continued success with that. Congratulations. Thank you, yeah Well, I wish you continued success with that. Since you said, it is still perhaps pending on appeal, is it?
Speaker 1:Yes, yes, the trial is pending and it's probably now, unfortunately, because in India matters take time to resolve finally. So it'll probably take a few years to finally get disposed of, but we'll see how that goes.
Speaker 2:Yes, well, you've mentioned the Raghav project, so perhaps you can give some background on that now.
Speaker 1:Before that, I just want to clarify the action that they had brought for that particular product. That one got compromised and, as terms of the compromise they had brought for that particular product, that one got compromised and, as terms of the compromise, they withdrew the suit and we we settled in in those terms. But there's a related action for another product which is still pending, which we're contesting, but on the raghav aspect, um, yes, so the background to that is that Kritika, my wife and I we were these were early days of the COVID, of the pandemic, march or April, as far as my memory goes 2020. And we were just, obviously, like the rest of the world, stuck at home at home. And well, almost since 2018, 2019, we had been getting a lot of queries from some of European and US clients on various aspects of automation, artificial intelligence, and if such an element were to be introduced in business, how would it be treated under law and in our context? Obviously, the question was directed to us to give an answer in terms of Indian law. So you know, that gave us an idea as to the fact that this is going to be, in the years to come, one of the biggest problems that the society will face one of the biggest challenges because, as is always the case, technology evolves at a much faster pace and law has to lay catch up.
Speaker 1:March we were walking and we thought of an idea that let's just get a tool developed, we're able to use the output as test cases and can file some applications in selected jurisdictions that allow for copyright to be applied for and examined and registered. So we shortlisted three countries in the beginning. We did India, we did US and Canada. We also wanted to focus on UK, but unfortunately UK doesn't have a system where you can apply for copyright protection and be granted copyright protection in that sense. So we decided to proceed with these three jurisdictions.
Speaker 1:We met a developer from Indian origin who was doing his master's. He was an engineer from India. He was doing his master's in the Miller Institute, which is a part of the University of Montreal, specializing in artificial intelligence. His name was Raghav, and that's the story behind how the name of the solution came to be Much later, of course. So we approached them and said look, we have a small budget which we're bootstrapping, kritika and myself, and we'd really like you to develop the solution. So initially, him and a couple of his colleagues who were assisting him at the back. They were of the view that they could create something pertaining to music, but then, eventually, we saw another one of their solutions on a public GitHub library which interested us, and then we said look, guys, we're really impressed by your neural style transfer solution. Can you build something like that for us? And that's where we agreed. And they built this neural style transfer solution, and how it works is very simple. It takes two kinds of inputs it takes a style input and it takes a content input, and after that you have the option of customizing what amount of style gets transferred from the style image to the content image and a couple of other variables, and then you hit a button called generate and then it produces an output which is the tools, re-imagination of the style, the content image in the style images, style, basically.
Speaker 1:So how we set to go about it is we wanted to minimize any complications or any peripheral reasons for which IP offices might just avoid answering the main question and raise an objection to, for instance, who owns the style image, who owns the content image, and so on. So, for simplicity sake, we decided to keep for the content image a picture that I clicked using my phone like my regular iPhone, and this was a time that we were walking on a terrace, kritika and I, and it was evening, it was sunset time, so I just took my phone out and just clicked a picture of the sunset from my terrace, and that is what we used as the base image and the content image and for style image. To avoid any complication, we wanted to use a style that the tool can be trained on. So we chose Van Gogh, because all of Van Gogh's works are in the public domain, naturally, and therefore it wouldn't have led to any further complication as regards the IP office in some countries saying oh well, you guys don't own the rights to the style image and therefore, on that basis itself, we are going to refuse registration.
Speaker 1:So we chose an image and an artist which was popular. They're painting an art style distinctive, something that a machine could detect, learn and mimic easily, and also in the public domain. So we narrowed down on one of my favorites, van Gogh, and we chose the Starry Night because, simply because it worked for the content image that we had for a sunset scene, and then out came the output. I obviously tinkered around with the variables, which was how much style was to be transferred and so on, and then the output that got generated is what was what we ended up naming Suryasth, which is the Hindi word for sunset, simply.
Speaker 1:And then what we wanted to do was file this as an image in artistic work which was created jointly with the effort of an AI tool and a human being, and therefore we decided to go the co-author way in place of sole authorship or any other combination. And the story behind naming it Drago is simple. We said we don't know where this journey will lead to, but at some stage, many years after, somebody or some government is definitely going to ask the question what about the rights of the developer who developed the tool and trained the tool on a set of images, and so on? So he said look, you don't feature anywhere, so let's just name the tool after you and call it raghav. And then we created we kind of did some reverse engineering and we created a name backwards from the alphabets r-a-g-h-a-v, so basically stands for robust, artificially intelligent graphics and art visualizer. So that's what it was.
Speaker 2:Very nice. So this is circa 2020 that this process starts and then, by 2021, you start sending in your applications to the three jurisdictions that you've chosen, and so I guess I'm curious. There are so many points I want to follow up on with what you just said, but at the same time, I'm curious about the very interesting responses that you received from these jurisdictions. So would you like to give an overview of that?
Speaker 1:Sure. So you know, in fact, the process started 2020 itself. We had, I think, nearly filed all of the applications by end of 2020. The first one to get registered after undergoing examination was the Indian application, and what coincided with that was that the Indian Parliamentary Standing Committee on Commerce was examining amendments or potential amendments to the existing intellectual property law regime in view of emerging technologies such as artificial intelligence, and I got invited to depose as an expert witness before the standing committee in the Parliament House, and they specifically asked about my endeavors and my application and wanted to understand what my view was, as well as other people's views were, on the aspect of how to treat an AI-generated work under copyright law or an AI-generated invention under patent law. We already had the Davos matter. It had taken place. The patent one it definitely hit the news by then in a big way and there were questions around that as well. So, to come back to each of the three jurisdictions that we filed in, so India was the first to grant after considering our submissions, and what we tried to argue to give you an outline was as follows Basically, there were a number of points on which they objected to registering it, and one of them was the fact that if the AI is to be made and considered as an author, it will go against or contradict several parts of the act which have been created with the presumption that it has to be a human being which will be an author.
Speaker 1:So they drew our attention to several provisions. Some of them included the fact that, for instance, the term of copyright in case of joint authorship gets calculated in India from the death of the subsequent, the second author, and then the reason saying well, the AI is technically never going to die, so how will the period be calculated? To drive home the point that the law only required an AI to a human to be an author, could only permit it a human to be an author and non-human could not be an author, and so on. So how we tried to argue, the whole point was as follows. Of course there was also a question on whether they were required to, or the work was subject matter protection at all or not, considering there was considerable amount of computer contribution to the work. So first of all we drew their attention to the fact that in 1994, indian law underwent some amendments which were based on the mid to late 80s amendments of the UK law which gave recognition to computer-generated works.
Speaker 1:And the 94 amendment, although minor, made a significant impact and change because the objective of bringing that amendment, amongst others, was to give recognition to computer generated works. So what it specifically provided for was a clause which sits under Section 2 of the Indian Corporate Act. It's sort of like a deeming provision. Sectiond defines the term author and what that clause says is for computer generated works and there shall be the person who causes the work to be generated. So by that logic they basically gave recognition to the fact that if there is a computer generated work, so long as there's an there's, there's an actual human who has given commands or worked on the computer and so on and with their use of the computer operated it at the relevant time when the work, the subject work, was created. The person who's done that is entitled to claim authorship over that work. So we gave that logic and we said look, we understand. There's several parts of the act that conflict with the understanding that an AI cannot be or a non-human cannot be an author. But there are two things that you should consider the current form and the rules where the form is prescribed.
Speaker 1:The delegated legislation, the rules which the government's created doesn't contain any field or column where I can disclose these details, on admission that it was in fact. The subject work was in fact a creation of substantial input or contribution by a computer. It may have been a joint creation, but it still had substantial inputs from a computer and therefore I had no option but to, for attribution's sake, name the application, which is R Raghav, as a co-author, and what that meant was I was ensuring that your records, when you were to make an entry in your records, correctly identify the fact that this was created by me under 2D6, with the assistance of Raghav, which is a tool that I own, and therefore I assist you, or rather I fulfill my obligation of not concealing material facts and you fulfill your statutory obligation of maintaining statutory records which reflect the correct factual position. So that was argument number one. The second argument was we basically fell back on a rather technical principle of interpretation of statutes, which was the Hayden's rule or the mischief rule. Was the Hayden's rule or the mischief rule? And how we use that to our advantage was by arguing that look, if there are more than one interpretations possible, which is happening in this case, because the law has been designed, keeping into consideration that a non-human cannot be an author. But if there are more than one interpretations and there is a conflict which is being created, it has to be resolved by taking the interpretation which furthers the remedy and suppresses the mischief.
Speaker 1:In the context of the 1994 amendment, we argued the mischief that the amendment sought to remedy or provide a solution for was that there was no express recognition under law for computer-generated works. So therefore, if the objective of that amendment was to give recognition and thereby create a part to the protection of computer-generated works, the interpretation that enables me to register this work, reflecting the correct factual position, is actually the interpretation which is furthering the remedy that the 1994 amendment sought to achieve and suppressing the mischief, and therefore must be permitted. So, on those arguments is how we got our registration, and it still sustains, funnily. What is interesting is very quickly to follow up on the policy journey of that. I obviously had a chance to explain all of this to the Parliamentary Standing Committee in 2020 December and then in July 2021, they published their recommendation report, which I'm happy to share. I was very privileged to learn that they did include several of the recommendations that are made, including the creation of a separate category of AI-generated works, possibly with a lesser duration of protection or lesser scope of protection, and the reason behind that was Stephanie yourself.
Speaker 1:More so because you're an expert in this field and deeply associated with arts Myself simply as an admirer of arts and someone having huge respect for artists and the talent that they possess. Kritika and I we've always been of the view that, while it's very important to embrace technology, at the same time rewarding human talent and in this case rewarding human talent and in this case, rewarding human ability to create art always has to be kept at a pedestal above something that someone creates with the assistance of technology. So taking the view that technology created works have to be discarded altogether is also not correct in our humble view, because that would lead to people and the industry discarding the use of emerging technology. But, on the other hand, creating a fair balance would entail that these rights are recognized. There's a formal procedure that governments, that legislative bodies, legislatures around the world decide on in terms of how someone who's created a work with the assistance of an AI or, in general, with the assistance of a computer resource, has to identify that on admission, and how is that work to be treated in terms of its duration of protection as well as its scope of protection. And what we suggested was we reminded them that, look, it's not the first time something like this would happen. It happened when the camera was invented, it happened when sound recordings in cinematograph films were introduced as works. Each of these, in most jurisdictions, enjoys much shorter and a much more limited scope of protection, simply because it's the same logic.
Speaker 1:These works are secondary works or, in a certain sense, derivative works, or assisted works, or neighboring works rising out of neighboring rights, and so on, because they rely on substantial contribution, either from a device, such as in the case of photography, obviously on cameras, which are becoming smarter and smarter with each day or they are considered as having comprised or based on several primary categories of work, such as, for instance, in the case of a song. It is made up of lyrical works and musical works, and so on. So we said look, you can create a sui generis system, you can create a separate category of rights. And then there were a number of questions. They asked us but how will it be regulated? How will it be adjudicated? And then we put the question back to them and we said how do you think any artistic work, a simple artistic work, is adjudicated today. It's on faith and it's on self-declaration.
Speaker 1:So a regulator, in any part of the country, any part of the world, a corporate office, can only investigate, uh to a limited extent or examine to a limited extent. Everything is based largely on self declarations. So so long as the basic examination is done, as per procedure, and statements and declarations are found to be accurate, registrations are granted. But everywhere registrations are subject matter of challenge, both in trial, in defense, to say an infringement action, or sometimes subject matter of a cancellation action, as we're facing in Canada. So well, this was the Indian part of it, which now brings me to Canada. So Canada, as far as registration is concerned, was very easy because they don't have a formal examination and they basically just go by what you submit and they kind of create an entry in the records and they grant you a certificate for it and then it's basically a subject matter of either proving or disproving that act in trial.
Speaker 1:So what happened in Canada? Is it simply proceeded to get registered, although we were rather surprised by the fact that we very clearly disclosed again Raghav and the fact that Raghav was a tool, a software, an AI-based software very clearly in the form itself formal examination. For some reason the Canadian IP office simply decided to include it in the register of copyrights and grant us a registration certificate. So where that story is reached is, as you may have read, we got sued for cancellation of registration by CIPIC, which is an IP policy clinic, and that matter is currently pending before the Federal Court of Canada and we're kind of in the midst of proceedings. From what I understand last, we're waiting for the written submissions, written pleadings, of both sides to be completed and then at some subsequent stage the matter will come up for arguments before court. So that's where the Canadian position is, because SIPC, obviously for a number of reasons, believes that the relevant entry for Sourios needs to be removed. Alternatively, in the petition which they filed, which they've also made public on their website, as I've been told, mentions an alternative plea or alternative approach to what their prayer is. Their ask is from court, which is to remove Raghav as the second author. So they don't necessarily challenge and even in their submissions to the Canadian government, in response to the call for comments on this specific issue, the study that the Canadian government had commissioned They've uploaded their comments on their website and we are aware of the fact that they've taken the position there that they're not necessarily opposed to computer-generated or AI-generated works not receiving protection or receiving protection, but they opposed to the idea of any authorship or similar rights flowing to an application. So that's where the Canadian position is.
Speaker 1:The US position was very different, in fact, and that's where much of the action happened, because our US application got examined and refused sometime in 2021, after which we sought the assistance of a very renowned law firm, particularly a very, very competent lawyer or team of lawyers, which was led by a very competent lawyer called Alex Garens at Dave Pitney, and so the team at Dave Pitney, led by Alex Garens, represented us in our first review and then in our second review before the Board of Review at the US Corporate Office. So the summary of what came out of the serious decision as is published, also free for everyone to view, on the US corporate office website they have a specific page on AI and it's one of the four decisions which they've published directly there on that page. What came out from that decision was following pointers came out. Number one they seem to be saying that well, we are not going to give any copyright protection to anything which is not human created. Period Number two if there is a work which contains contributions from an AI and a human being, so far as you can discern what the human's contribution was and what the AI's contribution was, we will recognize that, examine that and then grant protection to the extent of the human being's contribution and exclude from the purview protection the AI's contribution totally. And then, number three if the AI's contribution and human's contribution is blended together in a manner that's impossible to discern both elements, we will not render any protection to the work at all, which happened in our case and in the Board of Review judgment.
Speaker 1:They took an interesting turn. They brought in the concept of derivatives, which wasn't previously either brought to our attention or made a ground to refuse protection. So they said basically, as we see it, the base image is what is subject matter of copyright, because it's your photograph and you can independently pursue a corporate protection for that. And Sururya appears to be a derivative of that photograph and, based on the submissions and the facts that have been brought to our attention, we are of the view that there has been little or negligible human contribution in making the derivative work. And they go to the extent of saying that the derivative work is actually a product of Raghav's contribution or creative decisions and not Mr Sahni's contributions, because they obviously apply the control test and they say that regardless of the fact Mr Sahni selected the base image, the content image and the style image, and he also had an option of deciding how much style to transfer. The output really was very remote from Mr Sani's control and therefore it was impossible for the human author meaning myself, meaning Ankit Sani actually being able to imagine what the output would or have any control over how the output would look like.
Speaker 1:And, amongst other arguments, the basic, most fundamental argument that we made was look what does the US Supreme Court say? Or what do you guys? Do you guys protect images or photographs that are generated by these fancy DSLR cameras which, by the way, have far more AI capabilities than Raghav does, capabilities than Raghav does, and when you consider the effort of clicking a shutter button and selecting a mono exposure and zoom and so on, as enough human creativity to be able to render full protection to the photograph which is created digitally, absolutely DSLR camera. This goes beyond that, because I'm already working with one picture which has been created the same way then I'm choosing, making the creative decision of choosing Van Gogh's Starry Night to be the relevant style for this image, choosing how much style to transfer to the content image, and then I'm generating this image, choosing how much style to transfer to the content image, and then I'm generating this image.
Speaker 1:But they somehow didn't agree on that, which is possibly the most bizarre thing to my mind, even today, and it seemed almost as if the corporate office, or the, should I say the administration, the Democrat administration in place, it's sort of philosophically or jurisprudentially arrived at the conclusion that they're not by any means going to give protection to machine generated or AI generated works. So they were trying to, at each step, somehow justify that position by giving new reasons. So this is an outline of what has happened so far in each of the three jurisdictions.
Speaker 2:Thank you for that. You covered almost all the details that I was hoping that you would, and so just a couple of follow-ups For the current definition in India of author. So Section 2D6 has now been clarified. Has it changed per your recommendation? Is that what you were suggesting and has taken place?
Speaker 1:I just want to make sure I understood that correctly created this sort of beaming fiction that in case of a computer generated work, the person who causes the work to be generated can claim herself or himself to be the author. Now whether that will be considered as valid in case of AI solutions. And then there is a whole spectrum of variety of AI solutions which differ in terms of how much input a human has to give for it to generate an output. Really, we have things like Midjourney, popular tools like Midjourney, etc. And they obviously generate AI tools and you basically, with a few sentences and so on, you could start having the tool generate outputs and all of us have done that many times at some of the other points in our lives. But we have those kind of tools. And then we have other kinds of tools in the market, as I understand from my interaction with clients, and tools in the market, as I understand from my interaction with clients and others in the entertainment media industries. We've got tools like AutoTune that work in a certain fashion to correct a voice sample and put it in the right notes. That is AI of a certain order and a certain kind. We've got special effects, specialized special effects softwares that can populate a green screen image of video with placeholder content, whether it's a waterfall or it's a scene from mountains and so on, all absolutely synthetically created and relevant to what the director wants the scene to really be. So we have a wide variety of AI tools and therefore I'm unsure if and well, it doesn't matter what I think.
Speaker 1:Actually, eventually it's a matter of how the regulator sees it, the corporate office, or how courts see it as to the varying levels of human input and effort that each of these categories of tools require. But as far as the section goes, it doesn't make any qualifications. It simply says anything that is computer generated, the person that causes it to be generated can claim themselves to be author, which leads to the presumption that, therefore, what the person caused to be created or causes to be created can be protected as copyright. What has happened is that definitions remain as it is. We recommend it for a new kind of right to be amended into the Corporate Act on the lines of, say, photograph or similar, into the Corporate Act on the lines of, say, photograph or similar, spelling out a new kind of act, maybe something like an AI-assisted work category of right and having a reduced period of protection. So the Standing Committee, the Parliamentary Standing Committee did recommend to the government that they think that such a right should be created. This was 2021.
Speaker 1:Interestingly, the last piece in the puzzle so far is in February of 2024, this year, the Minister of State the Union Minister of State Comers in response to a question in the Indian Parliament, made a submission that a they don't think there is any need to create a new category of right and therefore the present government, the Indian government, doesn't intend to amend the Act to create a new category of right.
Speaker 1:B they believe the way the act stands, the law stands today, it is sufficiently well positioned to give protection to AI-generated content and the government intends to give protection to AI-generated content. And that is where they basically left it. Of course, they did mention a bit about, or implied a bit about, text and data mining and the fact that, in the absence of any express exceptions, text and data mining efforts will be seen against the test of infringement and the exceptions which the statute provides. And, should such text and data mining not be covered by any of the exceptions, it may be considered as infringement if it qualifies and fulfills all criteria the definition of infringement. So that is the position in India as regards to this.
Speaker 2:Yeah, yeah, and my understanding for Canada is there has been a recommendation report that there should be changes in that jurisdiction, but there hasn't been a timeline put on it, and so there's ambiguity there and with your case pending, who knows which will come out first clarity in the law or your decision in your case?
Speaker 1:absolutely. I mean, I'm really excited and there's again a wonderful set of attorneys who are representing us in canada, so I'm looking forward to working with them and at some stage to being physically present if I'm permitted to in Canada before the federal court, to be able to assist the court in making some of these points and driving home some of our arguments.
Speaker 2:And then going then to the US. I was curious your thoughts about some of the copyright offices' request for comments and did you actually submit any formally to the copyright office when the window was open to do it?
Speaker 1:I didn't even think till now to ask you that. You know we took a conscious call. We did participate in some countries' call for views. Uk was one such country where we wanted to have our submissions heard.
Speaker 1:In the US I was invited to be a speaker in the listening session one of the listening sessions, one of the listening sessions but Kritika and I we decided not to pursue or basically not to submit our views because we felt much of what we needed to submit had already been done through our submissions before the corporate office and they'd already made a decision on that, and after the Board of Review decision it would have been improper to, in our view at least, to really make any more written submissions and so on.
Speaker 1:So we basically decided to not participate. But the fact that there is a call for views there is a rather active subcommittee where I'm aware, through certain people who have either deposed before the subcommittee, the Senate subcommittee, or have submitted their views in writing, the Suryas case has been brought to the attention of the Senate subcommittee. The fact that there is a subcommittee looking into it is evidence by itself of the fact that the government, and possibly the Senate, is in general exploring whether the law finally needs to be amended in order to facilitate and make room for artificial intelligence and all of the other related technologies that have taken over our lives.
Speaker 2:At this stage, yes, yes, and so for their specific questions related to honing in on this conversation, the idea of clarifying what the authorship requirement is and should be going forward and, as a policy matter, should that change? Does the Constitution allow for that change? All of those things, I think I kind of already know your thoughts, but if you'd want to put it into like a capsule, sure?
Speaker 1:no, stephanie. Thank you, and you know, in a capsule. I do believe the authorship understanding or the definition should, by way of a legislative amendment, be clarified or broadened in scope to include authorship with the assistance of technology for all categories of works, whether it's artistic or cinematographic, or it's musical, etc. Or a cinematographic or it's musical, et cetera. Doing anything but that would discourage the adoption of technology by industries all across the spectrum. And if it doesn't discourage the adoption of technology, it's going to result in more and more applicants suppressing material facts, because otherwise, if you don't disclose, there's no way that the corporate office will actually know if something was created with the assistance of technology or not, and therefore that that is what I feel is the correct position. I'm not any expert on us constitutional law or us corporate law, but from what I understand, based on advice that I've received from my attorneys in the past, I believe the definition or the concept of copyright in the Constitution and in the statute is really agnostic of whether the or doesn't specifically clarify mention that an author has to be a human.
Speaker 1:Human authorship is a different issue. Debate for a different day. Interestingly, we had Elon Musk's company announce Primus or whatever Optimus, whatever the name of the product is the humanoid which you can buy and keep at home for domestic support and so on. The fact is that with that, we'll have an AI which will be walking, sooner than later, in our homes, in our offices and so on. That probably could be the right time to ask the question as to whether a non-human can be an author or not, but so far as the question the first question is concerned, I think what is important is for governments and countries to take a view on whether they are going to protect works that are created with the assistance of AI, and that is the most important question to answer at this stage.
Speaker 2:Yeah, and with all of the points that you've raised today, do you have an opinion about certain injustices that might be percolating in our current global legal landscape, and is there a need for a global approach to address those injustices?
Speaker 1:to address those injustices. You know, to me, when I see justice again, you know I'm probably not don't have enough experience to be able to comment on something as broad and something as high level as this, but you know, when I look at it I understand it simply, at the very least, to mean that a party who wishes to be heard is heard in a fair and unbiased manner, and that, to me, is what justice is. Justice may not necessarily result in relief for the party that brings the action, but so far as the party gets an unbiased consideration and a hearing of what their rights are and what grievances they have, I think that fulfills the definition of justice. Of course, politically justice has become rather complex and unfortunately, in many parts of the world, including in India, the judiciary has got mixed up with politics and that doesn't necessarily result in a good combination or a good cocktail, if I could put it that way. It's a dangerous cocktail to consume and to have in one's presence. But in terms of injustices, in the context of today's conversation, I do feel that countries and governments should work together, possibly at WIPO level or a similar forum level, to create a treaty, a global treaty, to recognize and therefore harmonize certain basic, essential elements of how AI and other emerging technologies and intellectual property rights interact the interface, and, once they agree on a harmonized set of principles, as they have been doing since time immemorial for so many different kinds of concepts and rights, whether it's maritime law, it's arbitration, things which I feel are more complex than the interface of AI and IP Once they have that, then they could get to legislating in their respective spaces their own legislations. But I feel governments should do this sooner than later, because what is happening is again I refer to a conversation with a colleague I respect a lot, who is based in London and is somebody very senior in the entertainment media space, very influential.
Speaker 1:He told me that well, ankit, you know how long do you think we've been using AI tools in this industry?
Speaker 1:Since many years, possibly over a decade.
Speaker 1:But in any of our copyright pursuits, including registrations of works, musical works or sound recordings we've always, always suppressed the fact that it was created, at times, with substantial machine assistance and inputs, with substantial machine assistance and inputs.
Speaker 1:So that is what I feel is the fact which brings injustice the most to people who are naturally talented, because, at the end of the day, the objective of corporate law or law in general is to incentivize humans, is to protect the rights of humans, and to be putting somebody who's naturally talented at the same pedestal as someone who's created something with the assistance of a machine would be unfair, at least to my mind. And that's happening today. That kind of injustice is happening because most places people will suppress, large companies will suppress the fact that they've used AI to create either an invention or an artistic work or so on, and that needs to be addressed and will only be addressed if countries come together to agree on a set of harmonized principles and then legislate and create a new category and also create delegated legislation. The whole thing flows from there Examination guidelines and rules and manner of disclosure and so on and so forth.
Speaker 2:Yeah, and the work you're doing hits the heart of that, and so I wonder what is the mark you hope to be creating with this work that you're doing?
Speaker 1:The same. Actually, it might sound very ambitious, but when we sought to do something like this in 2020, when we ventured out, and even to date, the biggest motivation is to nudge IP offices, to nudge governments and other stakeholders into realizing that the law needs to change. And if our matter, if our case or test cases, can make even a small contribution to the changes that are coming or will come in the times that we'll witness, I think I will consider it as a rather satisfactory output of all of the efforts that we've made. Of course, much of the credit goes to all of the wonderful people that inspired us along the way.
Speaker 1:I have been immensely inspired by Ryan Abbott and have often fallen back on him for guidance again and again, and he has very patiently not just guided me but also helped me formulate many legal arguments and propositions. And the same credit goes to the law firms that represented us. A lot of the ideas came from them and then, of course, my wife. I mean she and I have been ideating this together. So this is where we've reached and that's what we hope we are able to do, even if it's impacting a very small part of it.
Speaker 2:Yeah, and going forward. Are there other projects like this or any projects you want to share that you're working on or plan to?
Speaker 1:So what we thought, and sometimes we discuss about it, because much of what we've done was bootstrapped from personal resources. There's only a limit to how much you can really stretch a legal experiment to. But, on a light note, you know, whenever Pritika and I are sitting over a breakfast table on a Sunday and we sometimes talk about where this debate has reached, we always discuss and agree that, look, if in the next year or couple of years we don't see any results, it'll probably be time for us to think of something else, possibly creating something with music and AI, or creating something with videography and then using that to file test cases or drive home at a different point, so on. Who knows? But let's see where this effort goes and then, if there are no reasonable results, we might just end up taking the leap and investing in or thinking of something else as a solution.
Speaker 2:Yeah, well, I look forward to watching whatever it is that you do, and thank you so much for being here and sharing your thoughts and the timeline of what you've been working on, and is there anything else that you would wanna share or express that we haven't touched on yet?
Speaker 1:Nothing specific, actually. I mean, I'm really very happy to have conversed with you and I would like to congratulate you for taking forward many, many important conversations around art and law, which will hopefully not just shape or are already shaping, as I understand various issues and various facets of where art and law intersect, but also lay the foundation for more people to brainstorm. Whoever's listening to your podcast might just get inspired, the same way we got inspired by someone else, something else, and might take a step which will take this debate and this discussion to a whole different level, and that is basically what we hope for in the end.
Speaker 2:Thank you, and I certainly know that I and others are inspired by what you're doing, so thank you for that. You know it occurs to me quickly. I guess I am curious. One final thought is how you see this entire conversation and the conflict that is kind of emerging over these issues about human authorship or how we define authorship. How do you see that as impacting our culture?
Speaker 1:You know, if you examine, in the earliest days, when photography came into existence, a lot of naysayers I like to refer to them as naysayers because you've got plenty of them in today's era and age as well A lot of the naysayers would. And back then, as I read through several essays and works on what happened at that point in time, several naysayers would say oh, you know, the artists are going to have a run for their money. We would not have fine arts in 20 years from now, because photography is just so much more capable of, for instance, capturing an image. And one of the essays that I read, I imagine I remember reading about the example of how there are a number of artists that line up and they've been lining up for probably decades, if not more hundreds of years, maybe in Paris, along River Seine, and what they do is they make customized in the moment, literally they just create sketches of that scene, and sometimes you'd have, depending on what part of the river bank they're on, what side they're on, sometimes you'd have the Eiffel Tower in in front of them across the river, sometimes you would have the Louvre or other you know monuments, etc. But so people back then would say that look, all of these folks that you see standing there are not going to exist 20 years from now, because cameras have come and you will see a bunch of camera photographers standing here, would click your pictures and give you the same view, only with much more clarity and precision that you can carry back and in a fraction of a time that it takes for someone to paint that photograph.
Speaker 1:But here we are in 2024, probably a couple of hundred years, if not more, after the advent of mainstream sort of cameras in our lives, and I think the respect for art has only grown and art has only become more accessible to the world than it was before. So I feel, culturally, ai will have much the same impact. Where there's a use case for humans to go up the value chain, they will embrace AI as a tool to make their work better, their outputs better. But where there's a demand for and respect for natural talent, I don't think, because if we were to see history as evidence of that, there should have been a decline in artistic talent in general after the advent of cameras, but that didn't happen. So I have no reason to personally believe that there would be any decline in human talent as far as music or art or anything else is concerned. On the contrary, there are a dozen or more instances that one can think of the top of the head that AI would be useful in in day-to-day work and in major industries, and so on.
Speaker 2:There will be links in the show notes to learn more. If you were intrigued by this podcast, it would be much appreciated if you could leave a rating or review and tag Warfare of Art and Law podcast. Until next time, this is Stephanie Draughty bringing you Warfare of Art and Law. Thank you so much for listening and remember injustice anywhere is a threat to justice everywhere.