Legal Implications And Accountability Qua Artificial Intelligence And Big Data Trends

Thus, Big Data and Machine learning in the current scenario are very closely interrelated.

India has diverse and large amounts of data given the population. AI remains a crucial element of innovation, infrastructure, jobs, skill market and strategic interests of the country whose need has escalated even more due to the pandemic.

However, there is an absence of any big data repository, guidelines for usage of big data and the Regulation of AI in India, thus, making it hard to deduce a trend of AI friendly technological ecosystem in the country.

It's impossible to approach AI and Big data trends without considering legal implications and accountability for its application. Given the absence of a well-structured mechanism there remain various existing statutes that can help the application of AI and regulation of big data.

Protection and Ownership of AI Application:

The Copyright Act, 1957 under section 2(o)^[1] protects the AI application's source code or the object code as Literary work. The author of the AI application i.e., the developer is thus the Owner of his work which is protected under the provisions of the Copyright Act.

Under section 3(k)^[2] of the Patents Act, 1970 computer programs are not considered inventions to be patented, however, an AI application can be patented if it is attached to a hardware, stating that the hardware is an important component as well as the software of the invention.

In India, the AI applications design, idea and structure can also be protected as Trade Secrets under Contracts and Tort laws.

Moreover, Access to AI Applications can be granted through License Agreements. The copyright act recognizes 'exclusive license' ^[3] providing rights to defend, prosecute and defend IPR.

However, Ownership of intellectual property generated by an AI application is not protected. In Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd.^[4] it was held that copyright subsists only if the author is a natural person and not an artificial person. Thus, a machine cannot be considered as an owner of an Intellectual Property.

Ownership of Big Data:

AI applications most often use their algorithms to derive patterns from the chaos of big data. It is a usage of machine learning through which AI Applications often operate, to predict market or derive automatic conclusions on their own to mimic human intelligence.

Big data that consists of Personal data is protected by certain penal provisions under the Information Technology Act, 2000. Additionally, 'right to privacy' having been recognized as a Fundamental Right under Article 21, the same would also cover the personal data of an individual.

Enormous amount of data is stored into systems these days via various AI applications used by various social media, and online aggregator applications. Data stored is mostly personal and raises a concern of privacy and a robust mechanism is required to deal with these issues.

Anti-trust and Competition Laws:

Emergence of AI and increasing use of big data has led to many enterprises to be in a dominant position for they could predict customer behavior and pattern to develop cost efficiencies etc.

Moreover, AI in some instances has come up as a shield to enterprises to engage in activities that are otherwise prohibited, such as colluding with competitors. This thus, attracts, Competition and Anti-Trust Laws.

In, Delhi Vyapar Mahasangh v. Flipkart Internet Pvt. Ltd. And Amazon Seller Services ^[5] It was noted that Amazon and Flipkart have large repositories of data due to its unparallel market base which analyzes the data through AI resulting in marginalizing other competitors who does not have access to data and thus, are unable to capture market as they can, and an investigation was initiated in this regard by the Competition Commission of India.

Section 6(1) of Competition Law provide the Competition Commission of India to regulate actions that causes adverse effect on the relevant market in India. Although insofar as AI and Data usage is concerned, laws in India do not provide a specific solution to plausible chances on usage of AI application for collusion amongst the competitors, but such arrangements can be deemed as Anti-Competitive through Section 20 and Section 3 of The Competition Act, 2020.

CONCLUSION

Building an appropriate IP regime and setting up of a Task force to deal with needed modifications in the IP laws is the requirement at present. Moreover, instituting a Data Privacy Legal Network to protect privacy and human rights in relation to Big Data will also resolve various issues that come up regarding privacy.

Although, a committee of MeitY suggested AI to be a threat to humanity but it is a crucial necessity in current times and a balanced approach is required to be taken. Thus, establishment of an oversight body can play an enabling role in application of AI. Further, given the current scenario an AI friendly ecosystem is required to established by the Government to ensure its application while ensuring protection of valuable constitutional rights of its citizens and protecting Intellectual Property Rights of the developers.

Arjun Garg is the Co-founding Partner of GSL Chambers and an Advocate on Record of Supreme Court of India. Sagun is a Final Year Law Student of the Banasthali Vidyapeeth and an intern with GSL Law Chambers.Views are personal