Delhi High Court Has Jurisdiction To Hear ANI's Copyright Infringement Suit Against OpenAI: Amicus Curiae

Amicus curiae Dr. Arul George Scaria on Friday told the Delhi High Court that it has the jurisdiction to hear the copyright infringement suit filed by Asian News International (ANI) against OpenAI Inc, which founded ChatGPT.

Scaria is a Professor of Law at National Law School of India University.

He submitted before Justice Amit Bansal that the Delhi High Court has the jurisdiction in the case primarily because ANI is based in Delhi and ChatGPT is used and accessed in India.

He further said that ChatGPT provides “interactive service”, thereby meeting the criteria of jurisdiction under CPC.

He referred to Section 62(2) and 20 of the CPC and said that even though the servers of OpenAI are based abroad, its services are available here and can be assessed from the national capital.

Scaria then made submissions on the issue whether storage of ANI's copyrighted data by OpenAI to train its software- ChatGPT would amount to copyright infringement.

He submitted that there are two ways of using a copyrighted material- expressive and non expressive use. Scaria said that there is no copyright infringement in non expressive use and expressive use is also permitted in certain cases. He said that most of the times, OpenAI is using ANI's content in non expressive way

“There might be some expressive uses because the plaintiff has also showed examples where material might have 90 percent similarity. It is not verbatim copied but in some cases, there is similarity,” he said.

Scaria submitted that storing of material by OpenAI, whether temporary or permanently, is permitted and covered under the copyright law, provided the same is for purpose of learning.

He also made submissions on the issue whether use of ANI's copyrighted content by OpenAI qualifies as “fair use” under Section 52 of Copyright Act.

Scaria concluded his preliminary submissions by saying that what needs to be considered in the matter is that whether it is feasible to develop large language models (LLMs) without giving access to copyrighted materials.

“Strength of LLM depends on the extent of material which is available for training. The defendant is a big tech company but what we might want to be worried about is that it a startup or small company wants to venture in this area, would it be technically and financially feasible for it to take lice se from copyright owners,” he said.

He further said that misinformation and disinformation happening through LLMs also needs to be addressed which can be done only by giving more access to more materials. He said that in absence of enough material, limited material can lead to misinformation.

He also suggested the Court to issue direction to OpenAI to display the disclaimer on ChatGPT in a more prominent manner which, at the moment, is small.

He concluded by informing the Court that there are 32 litigations filed across the globe on the issue and only one case has been finally decided by a Chinese Court.

Another amicus curiae Advocate Adarsh Ramanujan also made some submissions in the matter. He will continue on the next date of hearing- March 10.

Summons in the suit were issued in November last year.

OpenAI is an American artificial intelligence (AI) research organization headquartered in California. Musk co-founded OpenAI in 2015 and left the company in 2018. Open AI has founded ChatGPT, a generative artificial intelligence (AI) chatbot. This is the first lawsuit in India against ChatGPT.

ANI has alleged that its original news content is being “exploited for commercial gain” by OpenAI.

ANI's suit alleges that ChatGPT verbatim reproduces ANI's original content in response to users' queries on a real-time basis.

It is ANI's case that ChatGPT has been accrediting it with statements and news that never occurred.

It has been averred that such instances, which are “known as hallucinations”, pose a real threat to the news agency's reputation and spread of fake news which may cause public disorder.

Title: ANI Media Pvt. Ltd. v. OpenAI Inc & Anr.