“The dead can’t speak for themselves. So, it is incumbent upon us to speak for them”

Introduction

Recently, the Division Bench of the Karnataka High Court while ruling on an appeal filed by the accused convicted of offences punishable under Section 302 and 376 of the Indian Penal Code, 1860 (IPC), held that “rape on the dead body of woman will not attract the offence punishable under the provisions of Section 376 of IPC.” The above-quoted ruling of the Karnataka High Court has brought the spotlight back on the menace of Necrophilia, that had caught the world’s eye when large number of dead bodies were left unattended amid the dastardly waves of Covid-19. The menace of Necrophilia, however, has plagued the human society for a prolonged time. But it is perplexing to note that an act that is considered reprehensible by society, has received very little global attention and what is more appalling is that in many countries, around the globe, there are no specific laws outlawing it.

This piece endeavours to highlight the lacunas in the legislations in force in India to penalise the horrendous act of Necrophilia and posit that despite having robust judicial precedents protecting the rights of dead person, the act of Necrophilia goes unabated due to the legislative inertia.

Further, the authors aim to turn the eye of the legislators on the growing need for the introduction of Necrophilia as a separate offence in the statute books or to amend the existing laws to protect the rights of the deceased.

Defining Necrophilia

The word ‘Necrophilia’ is derived from the Greek words ‘nekros’ meaning corpse and ‘philia’ meaning love, wherein the perpetrator gets sexual pleasure by indulging in sexual activity with the dead corpse. The Criminal Code of Georgia defines Necrophilia as “A person commits the act of necrophilia when he performs any sexual act with a dead human body involving the sex organs of one and the mouth, anus, penis, or vagina of the other”.

Cyber awareness among teenagers is becoming necessary as many teenagers are using the internet without any information about cybercrimes and they usually end up getting into a trap of Cyberbullying. As per various surveys conducted, it was found out that every third child out of five have the access to the Internet and almost spends around 45 hours per week on the internet. The COVID 19 Pandemic gave an edge as the educational sector also went online due to which the internet became an inseparable part of their livelihood.

The Lacunas in IPC

The laws in India on sexual intercourse with a dead body are somewhat murky. The IPC contains several provisions concerning the protection of dead bodies in general, but it is unclear whether these provisions provide dead bodies protection from sexual assaults.

Section 297 of the IPC penalises “indignity to any human corpse”However, the provision is incomplete and there are a lot of lacunas of which the accused can take recourse and escape from the clutches of law. Firstly, Section 297 penalises the act of  “indignity to any human corpse”done with the intention of“wounding the feelings of any person, or of insulting the religion of any person”.The issue herein is that when an accused commits the gruesome act of sexual intercourse with a cadaver, it is not always the case that the act was committed to insult the religious feelings of the person. Fitting necrophilia into the ambit of Section 297 would on the other hand amount to giving religious overtones to such horrendous sexual acts. Secondly, the ambit of Section 297 is limited to the acts committed on“any place of worship or any place set apart for the performance of funeral rites”.This virtually excludes mortuary, hospital wards and other sites at which the act of necrophilia is mostly performed from its ambit. It has also been observed that the act of necrophilia is committed by mortuary attendants and guards, who have unfettered access to dead bodies considering the dilapidating condition of Indian mortuaries and the non-installation of CCTV cameras there. Also, the maximum punishment under the aforementioned section is one year. Considering the gravity of the offence and the consequent repercussions it has on grieving family members, the punishment prescribed is inadequate to create a deterrence. 

The other provision is Section 377, which penalises ‘voluntary’ sexual intercourse “against the order of nature with any man, women and animal.” This provision also has certain lacunas. Firstly, there is no definition of the expression “against the order of nature” in Section 377 or in any other section of the IPC. However, applying the Victorian Principle, any sexual act that does not lead to procreation falls under ‘against the order of nature or unnatural’. However, the use of the word voluntary in Section 377 appears to be problematic as in case of sexual intercourse with a cadaver, the victim being dead therefore there is no scope of consent being there.

Further, in the absence of any specific statute proscribing necrophilia, the accused person(s) is charged with the offence of rape under Section 376 of the IPC. Section 375 of the IPC, which defines the offence of rape, is a gendered offence. The first line of the section reads as ‘A man is said to commit “rape”with a woman if he has forceful sexual intercourse under six circumstances enumerated under the section. The wording of the section restricts the scope of this section where the act is committed on male dead bodies. Also, under Section 10 of the IPC, a man is defined as “a male human being of any age” and a woman is defined as “a female human being of any age.” There is no reference of a dead person anywhere in the IPC or in any other legislation now in force in India.

The Global Position

World over, in many countries there are no laws penalising the horrendous act of necrophilia. The inability or lethargy on the part of the legislators to frame laws has led to continued commission of the offence unabated. However, many countries like the United Kingdom, South Africa have robust anti-necrophilia laws. Section 70 of the United Kingdom’s Sexual Offences Act, 2003, makes“sexual penetration of a corpse”an offence punishable with six months to two years imprisonment. In New Zealand, the Crime Act 1961 directly does not deal with the offence of necrophilia but under Section 150 of the Act, a person is liable to imprisonment for a term not exceeding two years for “Misconduct in respect of human remains.” In South Africa, section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 titled‘sexual act with corpse’penalises the offence of Necrophilia. The United States on the other hand has no federal law criminalising necrophilia but only a handful of states including Arizona and Georgia have explicit laws criminalising necrophilia.

Indian Legal Jurisprudence on Rights of Deceased persons

Presently, the law relating to the dignity of the dead exists, but its contours have not been defined. The Indian constitution, however, contains a catena of rights protecting the dignity of the dead under Article 21 of the constitution of India.

The Supreme Court of India in the case of Parmanand Katara v. Union of India, held that  “right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death”.

In the case of  Ashray Adhikar Abhiyan v.Union of India, the Supreme Court delivered a momentous verdict pertaining to the cremation of deceased homeless individuals. The Court reaffirmed the importance of treating the departed with utmost respect and acknowledged the fundamental right of homeless individuals to have their funeral rites performed in accordance with their religious beliefs.

The Allahabad high court in the case ofRamji Singh Mujeeb bhai v. State of U.P & Ors.,while dealing with a petition highlighting, inter alia, the dilapidated state of mortuary in Allahabad, imposed obligation on the state to accord dignity and respect to dead bodies and ensure that the dead bodies should never be used for any ocular purpose and for that, the court gave an extended meaning to the expression ‘person’ in Article 21 so as to include dead bodies.

In the case of Amrutha v. The Commissioner,the Madras High Court delved deep into the intricate realm of safeguarding the privacy of departed souls. Drawing inspiration from the puranic literature, the court shed light on the enduring essence of privacy, transcending mortal existence, even in the realm of death. The court emphasized that it’s crucial not to invade the privacy of the deceased and to respect their right to privacy even after they have passed away.

Suggestive Remarks

The rights of the deceased have long been overlooked despite having a catena of solid judicial precedents supporting them. The judgment of the Karnataka High Court should serve as a catalyst for the legislature to either fix the lacunas in the existing laws or introduce a new provision in the statute books upholding the dignity of the deceased person,

A draft provision penalising the act of Necrophilia by adding a clause to Section 377 of the Indian Penal Code has been suggested below by the authors.

Section 377A. Offense of Necrophilia“Whoever engages in sexual penetration of a deceased person’s body, using one’s penis, or any other body part, or any object, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”.This amendment would effectively establish necrophilia as a distinct criminal offense in the IPC, ensuring that such horrendous acts are explicitly recognized and punishable under the law. Furthermore, penalizing necrophilia aligns with the global consensus on human rights and the universal belief in the sanctity of the human body, even after death. It will also demonstrate India’s commitment to international standards of human decency and serve as a reflection of its progressive and compassionate approach toward protecting the rights and dignity of its citizens.

Introduction

The World Trade Organization has been deliberating upon the Investment Facilitation Agreement (IFA) for facilitation of investment in the global trade arena and smooth inflow of Foreign Direct Investment, in addition to setting global regulatory standards and otherwise, for such inflow. Although, the principal intent behind such international agreement is a step in the right track, there are fundamental scepticisms that have been witnessed regarding the same as well.

The nations who are construed as primary beneficiaries of this agreement are envisaged to be those developing in conjunction with the underdeveloped cosignatories. The primary motive behind the same is to increase the inflow of investment through foreign channels in order to bolster the economic status of such nations. Despite such a targeted faction, wherein the substantial investors are already sceptical to invest, such an agreement can act as a double-edged sword and it shall seldom be preferred by the nations, say over, a Bilateral Investment Treaty (BIT) or an International Investment Agreement (IIA), which provides the nations a wider liberty and a higher pedestal on a negotiation table.

However, a major disjunctive that gave rise to the tumult amongst the prospective investors is an alarming absence of any sort of Investor State Dispute Settlement Provisions (ISDS) in the draft Agreement on Investment Facilitation for Development (IFD Agreement).

Herein, we shall be effectively indulging in a discourse outlining the impetus of ISDS, which shall be further bolstered by a legal analysis, finally giving way to prospective challenges and countermeasures to mitigate the same.

Importance of ISDS for Investors

Even prior to the IFD negotiations came into picture, there have been sustained endeavours of several jurisdictions to enter multilateral treaties to standardize their regulatory landscape for attracting FDI in a coherent and effective fashion. These states are primarily of the Asian origin which ideally portrays the degree of impetus attached the IFD negotiations for these jurisdictions. However, contrary to expectations, a plethora of these states have withdrawn themselves from the negotiation table apprehending fundamental adversities, a major one of which is the explicit debarring of ISDS.

CPTPP – An example

Looking at the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), signed and ratified on 8th March 2018 among 11 UN states had several carve outs regarding policy and was a clear deviation from the pro-investor position which is a general stance in traditional BITs. It is apparent that this treaty is on a verge of failure as even after half a decade’s time, there has been no substantial growth in FDI that has come as a result of this treaty and even today the investors give preference to IIAs over adhering to the purview of this specific document.

A deeper analysis of this specific treaty portrays the insurmountable uncertainties and risks that an investor would have to bear pursuant to this understanding. The very first is the explicit exclusion of ISDS under Article 29.5 pertaining to control measures which the states may impose at any given point of time. This probability of unprecedented regulatory intervention is bound to discourage any substantial investor from foraying into the market which in turn will diminish the probability of attracting FDI, hence further jeopardizing the goals of this treaty. Secondly, a plethora of procedural rights have been incorporated to benefit state respondents and promote transparency, such as provisions allowing state counterclaims under Article 9.18.2 and claim consolidating under Article 9.28.

These points indicate a deep awareness of the significance of ISDS, as well as sensitivity to some of the critiques levelled at the treaty.

The Regional Comprehensive Economic Partnership (RCEP)

RCEP is another instrumental example when it comes to not providing the opportunity of ISDS to the investors. Although, in this multilateral agreement there remains a scope of revision wherein the parties can deliberate an understanding, if they deem that the agreement is traversing the path of frustration, then the parties will have the leeway to modify the provisions thereof and hence include ISDS provision which in turn shall empower the investors to bring action against states regarding an infringement of an investment clause.

The RCEP model is practically viable as it keeps the probability of further discussions open and allows for modifications to the current regime, which provide investor with the greater flexibility of terms in case the agreement amounts to failure.

An Arbitration Perspective

The International Centre for Settlement of Investment Disputes (ICSID), which is the primary forum for investor-state arbitration and dispute settlement, recognizes the importance of ISDS and the same has been backed by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on dispute resolution in cases of commercial disputes. The following are the concerned provisions:

Impartiality – Articles 37 and 38 of the ICSID rules throw light on the impartiality of the dispute settlement mechanism and bolsters the inapplicability of national laws as the same shall jeopardize the integrity of the proceedings and will amount to be lob-sided in favour of the state, if their laws are to be taken into cognizance. This stance is further bolstered by Articles 5(1) and Article 10 of the model law

ISDS – Article 25 of the ICSID Convention contains ISDS mechanisms that enable investors to file claims against host states directly. The Convention’s Article 26 outlines the requirements for starting a case as well as the tribunal’s authority. This is further backed by Article 2(1) of UNCITRAL model law.

Protection against Expropriation – Article 5 of the ICSID rules guarantee protection against expropriation by requiring host states to compensate investors if their investments are

expropriated or become nationalised. According to Article 5 of the UNCITRAL Arbitration Rules, compensation must be paid in the event of expropriation or other actions that have the same effect as expropriation.

Therefore, these rules provide adequate protection to the investors to foray into the investment markets and absence of provisions such as these, jeopardize their standpoint.

Conclusion

In plethora of case laws, the impetus of ISDS has been brough to fore. Some of them are Phillip Morris v Uruguay, Vattenfall AB v. Germany and Chevron v. Ecuador. In all these cases the underlying principle that was reiterated was that the ISDS mechanism plays a critical role in encouraging foreign investment and in providing investors the security they need to do so in diverse economies.

ISDS is a key factor in encouraging foreign investment and promoting economic development. Without it, investors may be deterred from making foreign investments due to the perceived risks and uncertainties associated with relying on the domestic courts of the host country for dispute resolution. This could limit the flow of foreign investment into certain countries or industries, and have negative impacts on economic growth and development. There are alternative mechanisms for dispute resolution in the absence of ISDS, but without ISDS, investors may face greater uncertainty and risk, which could deter investment and ultimately have negative economic consequences.

Therefore, the negotiators of IFA should consider these factors and examples, as cited above, before tabling the final agreement.

“Anything that could give rise to smarter than human Intelligence – in the form of Artificial Intelligence, brain-computing interfaces, or neuroscience-based human intelligence enhancement, wins hands down beyond contest as doing the most to change the world. Nothing else is even in the same league.”

– Mr. Elizer Yudowsky

Introduction

Humanity has been progressively working on innovating Artificial Intelligence or Automation, which holds 10 times more capabilities than humans to revolutionize the world, creating a worldwide industry. It is the birth of an innovator through innovation, which continuously thrives towards the betterment of society. It also raises a diabolical argument today due to job insecurity and income inequality. This article focuses on, how the AI industry will have an impact on the Indian Legal system.

The invention of steam engines, was a giant leap for humanity, which showed another possibility of machines playing a major role in our future. In this digital era, we have created chat bots, voice assistants, and robots which have successfully increased work efficiency and productivity by an average of 14% in the Fortune 500 companies. Additionally, a novice or a beginner working in a company has reported that their rate of work increase by 35%; a study by Stanford University and MIT.

Till now AI software and tools are showing a positive effect in the litigation process. India has recently evolved it’s court rooms through AI, whereas China had started introducing AI in courts since 1990. At this juncture it is crucial to evaluate the power and the detriments posed by Artificial Intelligence expanding in the Indian Legal arena.

Understanding AI in the Indian Legal System.

The Indian legal system is suffering from low strength of the judges of around 21 .03 million judges per million population with  five crore cases pending, including more than 1.7 lakhs court cases which are pending for more than three decades in lower courts and high courts. According to a report by the NITI Aayog, absolving the cases will take more than 324 years.

Indian Judiciary is boldly tuning the old tradition with the new age technologies.

AI in the Legal industry has been focused more on the ‘Extractive process’ which means pulling out information from an extensive database. With the enhancement in AI now, we can also generate new and original writings using the ‘Extraction process’, which in an integral part of ‘Generative AI.’

To connect the Indian legal system to the new era of the automation industry, some of the startup companies a few more have developed Natural Language Processing [NLP]. This will help Law firms to increase the degree of legal research from keywords to other deep research methodology tools in the AI software.

The onset of AI revolution in the legal sector has been a harbinger of relief for the overburdened judiciary and the time-crunched lawyers. Before scrutinising the possible threats that this addition can bring, it is essential to factor in the benefits that the legal system obtains from AI. Firstly, it optimises time, as working on case files, drafting arguments, and managing clients is exhaustive. Most people are focusing on delivery and productivity in the real world. The process given by law is extensive, yearn for results. AI can help with document automation and save plenty of time, coupled with lesser human interference, which will also cut down the cost involved in legal work. Lawyers,and legal professionals can use AI-powered software like ChatGpt, ROSS, Kira, Lex Machina, and Hyperlex to bring down the time limitation posed in front of Legal practitioners. Secondly, it provides a predictive technology for legal analysis. Algorithms fed into AI collects the public perspective, which gives an insight into the potential outcome of the case. It can also detect the correlation between factors and legal outcomes, allowing predictions about similar cases in future. Thirdly, it assists with drafting. AI-driven software uses language proficiently, which makes the contractual language comparatively less ambiguous. AI can automatically cross-check and evaluate the contract with respective case laws, rules, and regulations, maintaining industry standards. Finally, it assists with Legal Research. AI-powered research technologies can help by summarizing research, analyzing case laws, and provide accurate search results by filtering unnecessary information.

Threats posed by AI

India has recently welcomed AI-powered technologies to step into the Indian Judiciary which has raised some basics concerns. The ever present issue of Data Privacy and Protection is the most prominent to loom over the continuance of AI in legal systems. We all are familiar with companies like Facebook and Amazon stealing user data for their personal benefit and then selling it to a third party. In the case of AI it has also given rise to the same question “How far can we trust AI with our data?”. ‘National Strategy for AI’ by NITI, Aayog (2018) reported that ‘if Indian Judiciary lets AI access the data of 5 crore Indians” then there will be questions, “What if someone sells the data or hack into the system?” or “Whether the files of clients can be safeguarded in the algorithms of AI?” this holds a significant concern in the eyes of the law. Legal institutions must ensure that AI-driven technologies the should have stringent rules and implement it to escape from infringing the Right to Privacy and safeguarding user data.

Moreover there are multiple ethical concerns. If the jury is an AI then it can also pose a great harm by producing biased results, if the algorithm allows AI to only gather gather data from biased sources. AI can make mistakes and produce unfair outcome that could impact people’s life and hinder justice

How far can we trust AI in Indian Legal System?

Former Law minister Kiren Rijiju in 2015, implemented phase two of the e-Courts projects, promoting the modern-day technologies of Machine Learning and Artificial Intelligence to increase productivity and efficacy for a smooth flow of the justice system. SUPACE, a new intelligent software entered in the courtroom which can draft legal briefs, collect facts, and present them to the judge; it also has decision-making power.

An AI deciding a case could raise question of ‘lack of transparency, the reason behind AI’s judgement. In addition to this there is also a speculation of AI’s bias which could hamper with the decision making power of the Ai. Supreme Court has shown probity by constituting an Artificial Intelligence Committee to monitor these concerns.

The Regional Comprehensive Economic Partnership (RCEP)

RCEP is another instrumental example when it comes to not providing the opportunity of ISDS to the investors. Although, in this multilateral agreement there remains a scope of revision wherein the parties can deliberate an understanding, if they deem that the agreement is traversing the path of frustration, then the parties will have the leeway to modify the provisions thereof and hence include ISDS provision which in turn shall empower the investors to bring action against states regarding an infringement of an investment clause.

The RCEP model is practically viable as it keeps the probability of further discussions open and allows for modifications to the current regime, which provide investor with the greater flexibility of terms in case the agreement amounts to failure.

Will AI replace lawyers?

A big misconception is that AI will take the lawyers’ jobs. While it is true that AI is comparatively better in performance and is cost effective, it can work carelessly around the clock but a human connection is important to perform client counselling as well as to understand the ground zero situation, form quick arguments, represent client in court room, and to build connection with the judges. AI is incapable of doing these tasks and cannot replace layers. Lawyers can use AI to make an effective team in the path to seek justice.

Conclusion

Artificial Intelligence is poised to transform the Indian legal system. As AI continues to evolve, it is essential to proactively navigate the associated challenges and concerns. By fostering collaboration, formulating a robust regulatory framework, and investing in skill development, India can harness the transformative power of AI while upholding the values of justice, fairness, and transparency in its legal system.

Reference/Sources

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Legal Desire, Scope of Artificial Intelligence in law Legal Desire Media and Insights (2020), https://legaldesire.com/scope-of-artificial-intelligence-in-law/(last visited Jul 20, 2023).

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Ai-powered Indian judiciary: A step forward or cause for concern? (2023) Bar and Bench – Indian Legal news. Available at:https://www.barandbench.com/columns/litigation-columns/ai-powered-indian-judiciary-a-step-forward-cause-concern(Accessed: 12 October 2023).

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Spandana , R.S. (2023) Ai and the law: A new era in the justice system?, Supreme Court Observer. Available at:https://www.scobserver.in/journal/ai-and-the-law-a-new-era-in-the-justice-system/#:~:text=The%20%E2%80%99Smart%20Court%E2%80%99%20System%3A,case%20analysis%20and%20decision%2Dmaking (Accessed: 12 October 2023).

Introduction

The jurisprudence of whether works of AI can be patented is being developed in India, though in its nascent stage, it has only been limited to policy recommendations as of now. The case of Thaler v. Vidal,[1].which was decided in the United Kingdom’s Supreme Court presents a rather important question of discourse, the Artificial Intelligence software was eligible to be called as an inventor under the Patents Act[2]. The plaintiff, Stephen Taylor, who is an AI computer scientist, is on an uphill journey to guarantee rights for AI inventors. Can an AI system with no human intervention have the capacity to be patented?

The Indian Patents Office recently raised its difficulty in recognizing AI as an inventor. Thaler had filed patent applications worldwide, including in India. The definition of a ‘Person’ according to the Patent Act is the main hassle for recognizing AI as an inventor. An argument could be raised that a corporation as a non–living entity is given some rights; the same should be applicable to Artificial Intelligence. In the 161st Report of the Parliamentary Standing Committee on Commerce[3] the government accepted that The Copyright Act,1957 [4]and The Indian Patents Act 1970[5][5] are not well-equipped to facilitate inventorship, ownership, or authorship by AI.

Though such reports show the inadequacy of the current legislation to deal with the changing times, nothing substantial has been done to bring about a desirable change.

The Committee further recommended that algorithms or mathematical models that can be linked to a technical device should be adopted in India for patents as is being done in jurisdictions such as the EU and the US [6].

AI Artistry on Trial: Decoding Copyright Boundaries in the Naruto v. Slater Dispute

For an AI system to have inventorship of its own in the present times is nearly impossible even in progressive jurisdictions such as the EU; however, there are leeways to be explored. In the case of Naruto V. Slater [7], Interestingly, the court had to determine a similar problem in the case, disputing the animal’s right to own copyright and sue for damages and injunctive relief if such copyright was violated. The plaintiff, Naruto, who is a monkey clicked a selfie, which was later published by the respondent, Slater, and published in a book. Here, the copyright was accredited to Slater and Wildlife. The People for Ethical Treatment of Animals (PETA) filed a suit in the federal court for Naruto to get the copyright for the picture. The 9th Circuit Court ruled in favour of Slater as Naruto did not file the case himself; therefore, PETA had no locus standi.

Perhaps an Artificial Intelligence system that is intelligent enough may fare better against copyright violations; recently, the AI Robot [8] Do Not Pay was sued for not having a licence; this shows the hesitancy on the part of the public to attach copyrights to AI Systems. Creative works, including computer-generated ones qualify for copyright only if it is created by a human. a computer program that is primarily designed for machine learning and can autonomously compute decisions that are independent, cause a dilemma.

Unveiling Novelty in AI Creations: Navigating Originality within Intellectual Property for Artificial Intelligence

Originality is an immutable part of Intellectual Property Law; the question of whether work that is created through analyzing throes of data by an Artificial Intelligence System satisfies originality requirements arises. Section 13(1) of the Indian Copyright Act 1957 [9]  states that copyright subsists in “original literary, dramatic, musical and artistic works.”

However, the Act fails to give any definition to determine the originality of a work. In the landmark Indian case of Eastern Book Company & Ors vs. D.B. Modak & Anr [10], The Court held that for a derivative work to be granted copyright protection, it must be proven that it is more than merely a copy of the original. It must include the author’s own skill apart from capital and work. The data analytics work done by an AI system could, in essence, be considered a work of its standing.

When it comes to originality, the Sweat of Brow Doctrine, as well as the Modicum of Creativity Doctrine, comes into focus. The former doctrine advocates that an author gains rights to a work when some amount of diligence is done; take the case of Burlington Home Shopping v. Rajnish Chibber, [11] where the Delhi High Court held that when there is a devotion of effort, time, labour or skill in creating a work, such work is copyrightable. An AI system that relies on a training program or an algorithm that uses hundreds or even thousands of snippets of data may gain protection under this doctrine.

On the other hand, The Modicum of Creativity Doctrine [12] stipulates that a minimum level of creativity should be applied to the work to make it copyrightable. In Emergent Genetics India Pvt. Ltd. vs. Shailendra Shivam and Others, [13] which dealt with the protection of DNA sequences to be protected as confidential information, the Court held that it was not an original piece of work citing the Eastern Book [14] Judgement, a minimum creativity requirement was not satisfied to gain copyright. When an AI uses machine learning algorithms, relies on an existing dataset of paintings and images, and supposedly uses its creativity to create an artwork, it may provide a certain level of creativity that could come under this doctrine.

It cannot be said that the work of an Artificial Intelligence System is entirely devoid of originality; even though it may make use of other copyrighted material to produce an output, the work, if created with its creativity and labour, could have a right of copyright attached to it.

Conclusion

The time is not too far when an Artificial Intelligence system will gain ownership rights for a work of its own; persons such as Stephen Taylor will rise in number and vouch for intellectual property to be attached to such systems without the touch of human creativity or originality. The report framed by the Indian Dept. of Commerce is a crucial turning point for the recognition of IP rights of AI in India, which accepts that AI-generated works and solutions should be permitted under the patent laws of India as it would further R&D and investment would be in greater terms once it is allowed. Copyright should be granted to AI systems with a regulatory framework; it is the need of the hour for the changing economy of our times. As discussed earlier, originality may present challenges for integrating AI and IP laws in India. However, in the context of the precedents analyzed, all hope is not lost, and there is a considerable chance for IP rights to be visualized for an Artificial Intelligence System.

[1] Thaler v. Vidal, 43 F.4th 1207 Fed. Cir. 2022.

[2] Patents Act, 1977. (Eng)

[3]Department Related Parliamentary Standing Committee on Commerce, One Hundred and Sixty First Report Review of the Intellectual Property Rights Regime in India, Iprlawindia (Aug. 26, 2023, 12:30PM),https://iprlawindia.org/wp-content/uploads/2021/07/GOI_IP-Review.pdf

[4]The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[5] The Indian Patents Act, 1970, No.39, Acts of Parliament, 1970 (India).

[6]Id. at 2.

[7] Naruto V. Slater, 16 U.S. 2,41, 2018

[8] Sara Merken, Lawsuit pits class action firm against ‘robot lawyer’ DoNotPay, Reuters (Aug. 26, 2023, 1:35 PM), https://www.reuters.com/legal/lawsuit-pits-class-action-firm-against-robot-lawyer-donotpay-2023-03-09/

[9] The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[10] Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 (India).

[11] Burlington Home Shopping (P) Ltd. v. Rajnish Chibber, 1995 SCC Del 746 (India).

[12] Jane C. Ginsburg, No “Sweat”? Copyright and Other Protection of Works of Information after Feist v. Rural Telephone, 92 Columbia Law Rev. 338, 338-88 (1992)

[13]Emergent Genetics v. Shailendra Shivam, I.A. Nos. 388/2004 (U/S. 39 R 1 & 2).

[14]Id. at 9

Introduction

India is my country and all Indians are my brothers and sisters, everyone has taken this pledge several times in their life yet no one abides by it as still women who are considered as sisters and in fact goddess in several regions of the country are still being raped. There are plethora of punishments for this crime ranging from flogging in Saudi Arabia to life imprisonment mentioned in Section 376 of Indian Penal Code.[1]

The law is vigilant of punishment to the perpetrators of such a heinous crime but victim still faces taboo as many people think that somewhere it is the fault of the women and even question her character, in a situation like this exposing identity of the victim not only adds to mental trauma for victim but also causes difficulty for her in aspects of marriage and employment. Foreseeing this law makers of our country have added section 228A of the IPC through 43rd amendment of 1983. According to this section, “Anyone who prints or publishes the name of someone against whom a section 376 offense may be committed, or any information that could identify that person’s identity”,1 is claimed to have occurred or shown to have done so will be subject to a fine as well as either type of jail for a maximum sentence of two years. in easy words this section says that whoever publishes identity of the victim in case of rape can be punished.

Social stigma

It is believed that media doesn’t disclose the name of the rape victim because its personal, traumatic and disparaging crime than any other crime. We get to see that apart from section 228A of the Indian penal code the United States for example has three states of Florida, South Carolina, and Georgia are having statutes that prohibits media from disclosing the identity of the victim.[2].

The conflict that exists between the media and privacy becomes contentious in crime of rape because rape is recognized as one of the most disputed and alienating issues of our time[3]and when you disclose the name of victim it might attract stigmabecause of inequitable gender roles[4]and if you don’t report that would validate stigma and why victims are treated differently in our society.

As per Michael Gartner, president of NBC News,“society’s incorrect assumptions and stereotypes around rape can be removed if  media more diligently provides  audience and readers about  chief facts in a rape case which can include rape victim’s name”[5]

Similarly, its observed that keeping inconspicuousness is a type of demeaning form of self-censorship,” that places the rape victim on a different pedestal from other grave offence victims, prolonging the gender conventional image and implying that raped is being looked down upon. Upon this it can be construed that while we fight for and against the revealing of the victim’s name there are staunch number of believers for removing stereotypes around rape.

The Pulitzer Prize was awarded to a piece in The Des Moines Register. The account of Nancy Ziegenmeyer’s ordeal—a twenty-nine-year-old mother of three and housewife—being raped by an unknown individual. Upon reading an editorial by Overholser in The Des Moines Register, which argued that rape victims should reveal their identity in order to remove the stigma associated with rape, she made the decision to go public and share her tale. [6]

One of the main blockages is that rape victims are very disquieted about people knowing the incident and having chance to blame them, other category of concern being not getting support because the majority of perpetrators are from the family or friends thus majority of women that have courage to reveal their identity are either high class women, middle class women, in steady relationship or are raped by strangers since they are more likely to not get stigmatized.[7]

Thusly it can be said that stigmatization of the  non -revealing of identity of the victim is nothing but a pseudo help, we must in the greater good of seeking women  who dare to raise their voices against the crime should actually ponder on the credibility that this section offers in terms of revealing of the identity.

Freedom of press and Privilege Of Media

Media is considered to be the fourth pillar of democracy and it acts as the watchdog of the society. It brings issues from every nook and corner of the country and helps the general public to build an opinion on it. The constitution also grants media “freedom of press” under article 19, as the role of media is essential for  democracy, however there is a flip side also, with the growing role and impact of media the need of responsibility and professionalism cannot be negated. Here the reasonable restrictions come to the rescue as like all the rights, freedom of the press is also not absolute.

To understand this, we need to look into the intent of section 228A which is to discourage social victimisation of the victim of sexual crime. Even our supreme court has observed this: “In our society the victim of a sexual offence specially victim of rape is treated worse than the perpetrator” [8] and “For no fault of the victim the society instead of empathising with victim starts treating her as untouchable”. So this restriction on publication of victim’s identity becomes reasonable.

Other aspect in the light of this section is Reporter’s privilege which is basically immunity from getting into purview of any law for disclosing confidential information or sources. Normally, media houses claim this defence in case of tortuous liability emanating from defamation done due to incorrect reporting. Giving reasoning of need for urgent reporting done without genuine verification and Section 15(2) of the Press Council of India Act,1978 which grants complete protection to reporters from disclosing their source.[9]Thus question is whether this defence serves well or not to discharge liability under S.228A.[10]

The troubling aspect of this is that since there is an absence of statutory recognition or precedent laying down an outline of journalistic privilege there are high chances of its subjective interpretation by the lower judiciary and so as of now the situation is that you need to apply your prudence to decide cases based on their facts and putting in their own interest of justice and security.[11]

It in all sense and provisions means that it guarantees special information rights so that the  media are able to share opinion, is safe from the government intervention and stop people impacted from the media reporting from suppressing the same by provisions of civil or criminal law without taking into deliberation media’s freedom to communicate. [12] On contrary media  have the duty of care that people are not affected by its reporting or information ,so this is a two way thing of rights and duties which is incumbent.[13]Also courts always have the chance to impose civil sanctions on media if it publishes the rape victim’s name in some other context.[14]Therefore media privilege should be balanced with the freedom of media.

Conclusion

The Section 228A of Indian penal code as discussed thoroughly in this article enunciates the need to ponder whether the identity of the victim should be disclosed or not in this regard there can be certain precautions which can act as midway for this tussle between media and privacy like disclaimer that given information is published after consent[15], which would ensure that innocent disclosure by general public and media is not stalled on one hand and that security of accused is ensured while disclosing, thus balancing right and liability, as, while IPC and Crpc prohibits disclosure of anything including the name of the victim so that they do not face any hostile treatment conversely our criminal jurisprudence does not have any means for victim protection and one might feel greater need for anonymity for this reason.[16] The most horrendous aspect being that protectors are the courts themselves as in their judgement  they have disclosed the names rashly upholding that this section cannot be applied to judicial servants acting bona fidely.[17]Thus need of hour being balance so that the ultimate intention of this section is upheld.

[1]Which countries carry the death penalty for rape?,https://news.trust.org/item/20201013104818-jvh1t

[2]Deborah W Denno,Perspectives on Disclosing Rape Victims’ Names, 4 Fordham Law Review (1993).

[3]James J. Tomkovicz, “On teaching Rape: Reasons, Risks and Rewards”,102 Yale L.J. 481, (1992).

[4](Oct. 12, 2023),https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9544891/

[5]M. Gartner , “Panel Discussion, in Symposium: The Privacy Rights of Rape Victim in the Media Law”,, 61 Fordham L. Review1133(1993).

[6]“It Couldn’t Happen to Me: One Woman’s Story”,Des Moines Reg., Feb. 25 – Mar. 1, 1990, at IA.

[7]Susan Estrich, Rape , 95 Yale L.J. 1087 (1986).

[8]Bhumika Indulia, “SC issues directions for protection of identity of victims of rape and sexual offences; need for victim friendly trial https://www.scconline.com/blog/post/2018/12/12/sc-issues-directions-for-protection-of-identity-of-victims-of-rape-and-sexual-offences-need-for-victim-friendly-trial-stressed-upon/, SCC online blog (Dec. 12, 2018).

[9]Amartya Kanjilal,The case for qualified journalistic privilege in India, (Sept. 6, 2021), https://p39ablog.com/2021/06/the-case-for-a-qualified-journalistic-privilege-in-india/

[10]Shreya Singh,The Identity Dilemma, The Identity Dilemma https://www.indialawjournal.org/the-identity-dilemma.php

[11]Amartya Kanjilal, “The case for a qualified journalistic privilege in India”, p39ablog (Sept. 6, 2021),https://p39ablog.com/2021/06/the-case-for-a-qualified-journalistic-privilege-in-india/

[12]Dominic Broy,Journalism and Media Privilege, European Audiovisual Observatory (2017).

[13]Id at 12.

[14]Florida Star v. B.J.F., 491 U.S. 524(1989).

[15]Id at 10.

[16]Dr.Kalpesh Kumar L Gupta, Identity of rape victims should be protected so that they are not subjected to unnecessary ridicule, social ostracization and harassment, Probono India  (Oct. 28, 2019),https://probono-india.in/blog-detail.php?id=32

[17]Supra  note at 15.

Introduction

The term Artificial Intelligence may be dated back to 1956, when it was first coined at the Dartmouth College of New Hampshire, USA. [1]

We’ve come a long way since John McCarthy, often regarded as the founder of AI due to his extraordinary contributions in the fields of computer science and AI, defined AI as “the science and engineering of making intelligent machines”.[2]In recent years, the field of AI has made remarkable development and transformation, with multiple innovative advancements shaping the way humans interact with technology and its impact on diverse industries.

Intellectual Property (henceforth, IP) refers to any genuine invention of human intelligence, which may be artistic, literary, technical, or scientific. These are primarily intangible properties that originated in the creator’s mind (concept) and were later turned to tangible (being in reality) properties. Conversely, Intellectual Property Rights (henceforth, IPR) relate to the legal rights granted to individuals or organisations for works or inventions resulting from their intellectual and creative endeavours. These rights are intended to safeguard and promote innovation and creativity by granting creators and inventors exclusive rights to use, profit from, and govern their creations for a limited time.

Today, there are several examples of how human innovations and robotics, originated from human intellect, are constantly trying to create new things and evolve new ideas out of their algorithms that are useful in our day-to-day life. In a country like India, where the concept of IPR is rather new and still in its budding stage, it is thus crucial to frame a legislation which accommodates the technological advancements, while also setting new moral standards so as to preclude any unauthorized use, and to maintain transparency and accountability of AI.

Artificial Intelligence and Intellectual Property

The interaction between AI and IP creates an enthralling and intricate confluence at the heart of today’s technology landscape. As AI continues to evolve, it intertwines with the principles and regulations regulating IP, resulting in profound ramifications across businesses and domains. This nexus between AI and IPR has emerged as a relatively new issue of controversy in the context of laws such as copyright and patent, resulting in frequent debates over the distinction between true human consciousness and artificial consciousness. One of the major dilemmas often faced, is the determination of culpability in the event of the failure of such innovations. The World Intellectual Property Organisation (WIPO) is constantly involved in such debates and discourses and actively seeks solutions to set aside such problems.

Existing IP regulations are insufficient to solve challenges such as identifying inventors and other infractions, when AI is involved in the creation or production of any work. There are several obstacles being faced by the policymakers which have also become a source of ongoing debates among lawmakers and scholars.

Artificial Intelligence and Copyright

Copyright is one of the significant intellectual property rights which provides the creators and authors with exclusive rights on their unique creative works for a set period of time. These exclusive rights grant them the authority over how their works are used, distributed, and adapted by others. Copyright protection is meant to foster creativity and ensure that creators  profit from their works. The intersection of AI and copyright laws emerges as an intriguing and varied domain in the ever-evolving realm of technology.

With its remarkable ability to generate, alter, and disseminate digital content, AI has become entangled in the complex web of copyright rules and regulations. With the existing copyright law not giving recognition to the works generated by AI, it ignites a compelling debate about the future of the intellectual property. In the landmark Monkey Selfie Case[3],where the claim of copyright infringement was brought by People for the Ethical Treatment of Animals (PETA) on behalf of a monkey named Naruto, it was held by the United States Court of Appeals that animals do not have standing in a court of law and therefore cannot sue for copyright infringement [4] In yet another leading case of Alfred Bell & Co. v. Catalda Fine Arts [5] In yet another leading case of Alfred Bell & Co. v. Catalda Fine Arts[5], which dealt with the issue of claiming copyright over a reproduction of public domain artwork, the United States District Court reaffirmed the principle that copyright is reserved for original creative works, not exact copies or replicas of works already there in the public domain, even if the recreation involves some technical skill. This verdict was a step back for those who claimed copyright for works created by AI, despite the fact that it was not a reproduction of work of other programmers and algorithms.

In India, the current Copyright Act [6]does not directly address AI-generated works or recognize AI as an author. To address the particular issues offered by AI technology, copyright rules need to be amended. These amendments could either include the acknowledgment of AI as a distinct entity or the formation of a new category of works devoted especially to AI-generated content, that is to say, the definition of “authorship” should be expanded to include both human and non-human authors.

Artificial Intelligence and Patent

Patent is one of the intellectual property rights which grants the bearer exclusive rights to an invention for a set length of time. The patent holder has the legal ability to prevent anyone from creating, using, selling, or importing the patented innovation without their permission. The combination of AI and patent law is an intriguing intersection of innovation and intellectual property rights.

Because of the rapid advancement of AI technology, complicated problems and challenges have arisen about the nature of invention, inventorship, and the patentability of AI-generated ideas. The primary questions to be addressed urgently are whether AI-created innovations must be covered under patent law, and if so, who should be recognised as an inventor for the production of such AI inventions. There are two schools of thought and academics: one which believes that patenting AI work would add too much value to research and create a monopoly, while the other which believes that it would rather act as a catalyst, leading to potential innovations

As per the Patent Act, 1970, anyone can file for a patent if he or she is the real and original inventor of an invention or an assignee of such person[7]. Further, after the literal reading of section 2(y) of the same act which does not clearly state that the innovation must be made by a human being, it may be conceivable to grant a patent for the creation made by AI technologies.

The deeper we delve into the intricacies of AI and patent, the clearer it becomes that the convergence of two disciplines has enormous promise for furthering innovation and human advancement. However, it also highlights the importance of addressing the ethical, legal, and regulatory components in order to ensure that AI-powered products are used responsibly and equitably. It must be identified whether the patent rights of AI-generated inventions enhance the aim of the patent law or hinder human-conceived discoveries.

The contemporary legal scenario in India

When it comes to technological advancement, India is one of the key countries. However, like many other countries, it lacks a specific provision for regulating AI with IPR.

AI-generated works are not officially included in India’s copyright legislation. Although, human authors are often granted protection for their creative expressions, AI-generated content and copyright rights are yet relatively unproven in Indian courts. The patent rules also do not apply where the technology of AI is the inventor although it is applied in a variety of areas, including pharmaceuticals and healthcare, to assist research and innovation.

In the modern age of advancements and innovations, it is unquestionably necessary to bring amendments to the existing IPR legislations. With the emergence of AI, a new era of invention has begun, challenging the established legal frameworks created for human-centric inventors and producers. AI-related ethical and data privacy problems should also be addressed in the revised IPR legislation so as to preserve the individuals’ rights and retain their faith in the emerging advancements in the fields of science and technology.

The Way Forward

The current status of IP with respect to AI is flawed, with acknowledgment of AI-generated work being a step forward but implementation the actual issue. The following regulations are thus required:

1. Reorganisation of Uniform Artificial Intelligence

2. High Demand for the Artificial Data Protection Act

3. Establishing criminal penalties for infringement

4. Resolving ambiguities in the implementation of patent laws Legislators have a lot of leeway in developing standards to recognise such instances and offer the best legal protection possible. A balanced and forward-thinking policy on IPR reform is not just a chance to foster AI progress, but also a way to protect the legal and moral underpinnings of intellectual property in a progressively intelligence-driven world.

[1]Rockwell Anyoha,The History of Artificial Intelligence, SCIENCE IN THE NEWS (Sept. 1, 2023, 8:33 PM),https://sitn.hms.harvard.edu/flash/2017/history-artificial-intelligence/

[2]Homage to John McCarthy, the father of Artificial Intelligence (AI), TENEO.AI (Sept. 1, 2023, 8:50 PM),https://www.teneo.ai/blog/homage-to-john-mccarthy-the-father-of-artificial-intelligence-ai

[3]Naruto v Slater, 16-15469 (9th Cir. 2018).

[4]Andres Guadamuz, Can the monkey selfie case teach us anything about copyright law?, WORLD INTELLECTUAL PROPERTY ORGANIZATION (Sept. 1, 2023, 11:33 PM), https://www.wipo.int/wipo_magazine/en/2018/01/article_0007.html

[5]Alfred Bell Co. v. Catalda Fine Arts, 74 F. Supp. 973 (S.D.N.Y. 1947).

[6]The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).

[7]The Patent Act, 1970, § 6, No. 39, Acts of Parliament, 1970 (India).

Introduction

The current advancements in technology and internet-connected devices allow for the viewing of new programmes, listening to infinite playlists on platforms such as Spotify or Apple Music, and storing vast quantities of images on the cloud. Additionally, prolonged video calls can be initiated. However, is email usage conducive towards global warming? Are you aware of the fact that digital pollution is enhanced through actions such as Instagram photo likes, video sharing, and application browsing? These issues remain largely unfamiliar to the public, and the political establishment tends to disregard them. “Digital pollution” is the waste produced by individuals via digital devices, online activity, or even basic actions such as sending a text message, email, sharing photos on Instagram, or engaging with social media content. The manufacture of electronic devices creates e-waste, which is worsened by the use of fossil fuels. Consequently, the devices themselves cause pollution, which harms our planet’s environment and contributes to a larger carbon footprint – the term employed to gauge the GHG levels within the earth’s atmosphere. It is pertinent to note that each instance of data usage effectively consumes the planet’s resources. Data usage through servers and routers consumes energy too.

The carbon dioxide (CO2) emissions generated by a basic online search can be effortlessly absorbed by a tree in one day, expending 7 grams per search. However, considering that Google alone processes over 8.5 billion searches daily, one must double the CO2 amount. The carbon dioxide (CO2) emissions generated by a basic online search can be effortlessly absorbed by a tree in one day, expending 7 grams per search. Additionally, each transmitted message emits 0.14 grams of CO2, and the amount rises when a message contains multimedia. Every tweet released produces 0.2 grams of CO2. Every email or WhatsApp message sent contributes 4 grams of CO2 to the atmosphere. Every day, 333.2 billion emails are sent, but 80% of them go unread. It is worthwhile to calculate digital pollution levels and contemplate the impact. Streaming a 30-minute show emits 1.6 kgs of CO2. It is alarming to consider the environmental damage caused by a weekend-long streaming binge. Mike Burners Lee, a Health Fellow at the University, conducted research which shows that a typical business user generates over 135 kg of carbon equivalent emissions per year- equivalent to traveling 200 kilometers in a family car just to send emails. Video streaming also impacts global carbon footprint, with the majority of internet traffic devoted to watching videos. Shockingly, this equates to a staggering 300 million tons of CO2 produced annually.

One third of the total quantity of video streaming traffic originates from pornography. The watching of videos on YouTube and social media accounts for the final third of carbon emissions associated with video streaming. The amount of carbon emissions generated by a month’s worth of Netflix’s top 10 shows is the same as the distance traveled by a car that drives past Saturn. This produces an equivalent amount of CO2 emissions to that of Belgium on an annual basis. The total sum of distances exceeding 746 million kilometers is liable for adequate CO2 emissions and could surpass Glasgow’s greenhouse gas production at a rapid rate. It is projected that the production and use of digital technology globally results in approximately 1.7 billion tonnes of GHG emissions annually. Therefore, every user is responsible for generating around 400 kg of CO2 per year. The web’s holistic ecosystem is a cause for concern as it contributes 3.7% of the planet’s total GHG emissions, surpassing that of the airline industry. Sadly, these emissions are forecasted to double by 2025.

Data Centers and Energy Consumption.

Where is the data stored? Whenever you perform an online activity, data is exchanged between your device and the server that hosts the website. Data centers, which are filled with powerful computers, store these servers.Think of them as large chambers with endless rows of machines. Around the world, there are over 2500 data centers that consume 200 terawatts of energy each year. Digital information is stored in these centres. Data centres and network infrastructure are responsible for 50% of all digital pollution. The grid and data centres are crucial for conducting search engine queries. Air conditioning is the most expensive energy cost component for data centres. Facebook moved their servers to Nordic nations such as Sweden or Canada due to the proximity of several hydroelectric plants, which was one of the reasons why.

Our electronic devices, including smartphones, laptops, and computers, are causing contamination throughout their entire life cycle. Rare metals such as neodymium, europium, and terbium are essential components in these devices and must be extracted before production. The chips and other components must then be manufactured, transported and assembled in storage facilities before being dispatched to retail locations.

Once these large digital devices reach your home, their environmental impacts continue.  Upon unpacking, the digital devices require immediate charging.It is important to note that such devices necessitate the use of electricity, which is generated through the burning of fossil fuels. It is estimated that 240 kg of fossil fuels are used in the construction of a single laptop. Digital gadgets were responsible for 5% of the world’s electricity consumption in the year 2015. In light of projections, the power demand from internet-connected devices is predicted to grow by 20% annually. By 2025, the Information and Communication Technology (ICT) industry may consume as much as 20% of the world’s electricity. By 2025, internet-connected devices could be accountable for 5.5% of the total global carbon emissions, surpassing commercial aviation as the most polluting industry. Despite claims by numerous businesses that they power their data centres using renewable energy, the majority of the world still relies heavily on the consumption of fossil fuels. Consequently, they must urgently adopt new measures to tackle this critical issue.

The utilization of a free cooling approach to mitigate negative environmental consequences and reduce energy consumption in data centres has been endorsed by Jerome Total, VP of group strategy at a data centre near Paris. This technique involves opening certain technical devices during suitable weather conditions and utilizing outdoor air to cool the computer rooms. The most recent technology has enabled the company to decrease its energy coefficient by 20%. Internet enterprises need to enhance their products’ functionality, providing options to users to disable videos while listening to audio on platforms such as YouTube. In addition, companies must create strategies for managing the life cycle of technological assets.

Since these digital services affect our minds, bodies, and fundamental chemical and biological makeup, their impact is far-reaching. There is increasing evidence that the act of checking our phones 150 times daily can have more of an impact on our actions and psychological reward systems than any other form of medium. Over the next three years, smartphones, laptops, tablets, and desktops together are projected to produce more carbon emissions than all other nations globally, with the exception of China, India, and the US, the top three CO2 emitters. Manufacturing is identified as requiring an estimated 80% of the energy used to create smartphones by experts. A study conducted by the United Nations University reveals that a computer uses just 81% of the energy it requires to operate.This implies that the energy needed to produce a computer is more than what it consumes throughout its lifespan. Computers are unique in this sense as other household devices often consume more energy while in use than in production. It should be noted that this is just a single aspect of the issue of digital pollution.

How to reduce digital pollution?

It is concerning how digital pollution is rarely discussed, despite being a significant issue. The term itself is contradictory – if we want to prevent deforestation and the depletion of our carbon sinks, we have to turn to electronic books. Individuals now send PDFs by post instead of printing physical copies, and opt for e-invitations to lessen their carbon footprint. How often do we consider the possible pollution resulting from our digital footprint? Furthermore, what measures are businesses implementing to reduce digital pollution?  While data centers claim to adopt energy conscious methods, some search engines declare their commitment to environmentalism. Certain search engines claim to “go green” by funding projects to restore degraded ecosystems.

How can you limit digital pollution? Here are a few simple steps to take right away.

1.Reduce the brightness of your screen to save energy. According to an energy manager from Harvard Law School, reducing monitor brightness from 100% to 70% can reduce energy usage by up to 20%.

2.Additionally, deleting unnecessary emails can help conserve energy. Estimates suggest that 30 emails can save approximately 22 watts, which is the equivalent of an average light bulb’s energy consumption for an entire day. Estimates suggest that 30 emails can save approximately 22 watts, which is the equivalent of an average light bulb’s energy consumption for an entire day.

3.To further reduce energy consumption, it is advisable to avoid sending unnecessary thank-you emails. If possible, include links to documents instead of attaching them to reduce your digital carbon footprint. If possible, include links to documents instead of attaching them to reduce your digital carbon footprint. If possible, include links to documents instead of attaching them to reduce your digital carbon footprint. Avoid multiple recipients when sending emails.

4.Close all unnecessary tabs as having too many open can drain your device’s battery and require it to be charged more frequently.

5.Educate yourself about the negative impact of internet use. Block video autoplay and stream videos over Wi-Fi instead of using mobile data. Download the music you enjoy as it requires the same data amount as streaming. This approach is favorable if you have set playlists on repeat, and it is environmentally friendly.

6.When taking breaks or going for lunch, put your work device into sleep mode. Additionally, avoid buying new digital devices unnecessarily

7.Turn off unnecessary cloud backups and disable automatic app updates, which account for 10% of mobile traffic. Also, disable notifications for unimportant apps.

This might lessen the instant and convenient nature of the online world, resulting in fewer cheap services. However, these constraints would not put an end to innovation. Instead, they would steer it towards more socially desirable directions, by creating friction in certain transactions

Introduction

When one first encounters AI technology like Chat GPT, it becomes instantly apparent just how vast the potential of this creation truly is. The myriad of conceivable applications for this technology seem boundless. Moreover, it’s evident that this technology is destined to become an integral part of our nation’s social and economic landscape.

The genesis of Artificial Intelligence (AI) can be traced back to the mid-20th century when computer scientists and researchers began envisioning the possibility of creating machines that could mimic human intelligence. The journey towards building AI has been characterized by several significant milestones and breakthroughs. Presently, we find ourselves in a stage where AI not only generates textual content but also produces images, videos, and audio based on the input it receives. The functioning of artificial intelligence mirrors that of the human brain, employing digital neurons inspired by their biological counterparts. These neurons are organized into distinct layers, forming a digital neural network. The greater the number of layers in the AI, the more proficient and rapid its operations become.

This article aims to delve into the legal complexities surrounding the output generated by artificial intelligence and analyze the relevant copyright laws in India. It also sheds light on the rights of the author and the Indian scenario of copyright, among other considerations. The primary question is whether AI-generated works raise is the issue of ownership. Does it belong to the individual who provided the input, the creator of the software, or the entity that generated the output itself?

Copyright

Copyright refers to the right to reproduce or own and control something, which also encompasses the right to prevent others from using or controlling it. Section 14[1]of the Copyright Act states that this is an exclusive right to undertake specific actions in order to generate revenue from the copyrighted material. In simpler terms, copyright provides the author with the exclusive legal right to create copies of their work and derive certain profits from it. This right is crucial as it safeguards the author’s interests in terms of creativity, uniqueness, and originality. [2]

Excerpt from Section 14 of Copyright act, 1947.[3]

“For the purposes of this Act, “copyright” means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely”

In India, for copyright protection to be granted, the work must be both original and in a tangible form. Originality is a fundamental prerequisite for a work to be eligible for copyright protection. This means that the work must originate from the author’s creative intellect and not be a mere reproduction of existing content. The author of the work is the initial copyright holder, and as per Section 17 of the Copyright Act,[4] only the author can own the copyright, with certain exceptions. If the work is generated during the course of employment the employment employer will hold the copyright or if the work is commissioned for a specific purpose the entity commissioning shall hold the copyright.

Who can hold a Copyright?

On a bare reading of the Copyright Act, 1957 [5] We can figure out that the language of the act is referring an author as a person or a living creature Like a composer artist photographer producer. As we have discussed above copyright Holder shall be the author, The author is defined under section 2 (d) (vi). of the act, It states that “in relation to any literary, dramatic musical or artistic work which is computer generated the person whocauses the work to be generated will be the author.” This section aims at considering the person who is using a computer software to generate a Work as the owner of the copyright.[6]

We can derive to this conclusion that as per the above section only natural person can be attributed with the authorship of a work. A machine or software cannot be given authorship of work because it does not have a human intellect attached to it.

Scenario of India in granting non-human work Copyright?

In the context of copyright for non-human entities in India, the current legal framework is quite clear. Copyright protection in India is granted exclusively to works created by human beings. This principle has been reinforced through various legal precedents.

For instance, in the case of Rupendra Kashyap vs. Jeevan Publishing House Pvt Ltd, [7] the court firmly established that non-human entities, such as corporations or artificial entities, cannot assert copyright ownership. In this particular case, the Central Board of Secondary Education (CBSE) had sought copyright protection for question papers they had created. However, since CBSE is considered an artificial body or juristic person, the court did not find it eligible for authorship rights. The court cited the Indian copyright act, emphasizing that authorship can only be attributed to a natural person. In Tech Plus Media Private Ltd v. Jyoti Janda,[8] further solidified this principle by ruling that juristic persons, which includes non-human entities, cannot hold copyright.

Can AI work receive Legal Protection?

If we assume that AI-generated work will become increasingly prevalent in the coming years due to its involvement in both creation and assistance, a delicate distinction regarding the source of such work’s origin will emerge. This distinction will revolve around whether the work is authored by a human or generated by a machine. Assigning authorship to machine-generated work could potentially put other copyright holders at a disadvantage, as they have applied their intellectual efforts, while machine-generated work typically stems from a mere input.[9]

Consider this example: If you input “Write about copyright” to an AI, the response will likely be generic and non-copyrightable. However, if you provide your own answer to the question and ask the AI to generate a response similar to yours, the output will possess intellect and originality because the input involved a thought process.

Global laws typically emphasize the products of intellectual labor and an author’s own intellectual creation, reflecting the author’s personality in the work, which grants human authors copyright protection.[11]

From the above discussion, we can infer that if the essential requirement for granting copyright is intellectual creation, then AI-generated work can indeed be attributed to authorship. This is because the input itself is intellectual, and the resulting output is solely based on that intellect, thus emanating from the same intellectual source. Consequently, the work will inherently contain the intellect or persona of the person inputting the data, granting them the right to claim ownership over the work.

Conclusion

The exploration of copyright laws in the era of AI-generated content presents us with a complex and evolving landscape. As we stand on the threshold of an AI-powered future, it’s clear that artificial intelligence has the potential to generate a wide range of creative works, from text to images, videos, and audio. However, the key question that arises is one of ownership and authorship.

Copyright laws, as outlined in the Copyright Act, 1957, emphasize the importance of originality and human authorship. According to the act, copyright protection is granted to works created by natural persons who contribute their creative intellect to the process. In the case of computer-generated works, the person who causes the work to be generated is considered the author, reinforcing the requirement of human involvement.

If the essence of copyright protection is rooted in intellectual creation, AI-generated works that involve intellectual input can indeed be attributed to authorship. The input itself constitutes an act of creative thinking, and the output is a product of that intellectual process. Consequently, the work can be seen as emanating from the same intellectual source as the human input, granting the individual the right to claim ownership over the AI-generated work.

In this ever-evolving landscape, it is imperative for copyright laws and regulations to adapt and address the unique challenges posed by AI-generated content. As AI technology continues to advance, policymakers, legal experts, and stakeholders must engage in thoughtful discussions to strike a balance between protecting the rights of human creators and acknowledging the creative potential of AI. Finding the right legal framework to address these complexities will be crucial in ensuring a fair and equitable future for all parties involved in the creation and dissemination of AI-generated ideas and content.

[1]Section 14 of The Copyright Act, 1947

[2]Michael D. Murray, Generative and AI Authored Artworks and Copyright Law, 45 Hastings COMM. & ENT. L.J. 27 (2023).

[3]Ibid

[4]Section 17 of The Copyright Act, 1947

[5]Section 17 of The Copyright Act, 1947

[6]Section 2(d) of The Copyright Act, 1947

[7]1996 (38) DRJ 81

[8](2014) 60 PTC 121

[9]Immidisetty Navya Raga Sravani & Kurella Venkat, AI-Produced Works and the Subject of Copyright – Its Legal Position, 5 INDIAN J.L. & LEGAL Rsch. 1 (2023).

[10]Wenqing Zhao, AI Art, Machine Authorship, and Copyright Laws, 12 AM. U. INTELL. PROP. BRIEF 1 (2020).

[11]Wenqing Zhao, AI Art, Machine Authorship, and Copyright Laws, 12 AM. U. INTELL. PROP. BRIEF 1 (2020).

Introduction

On 5th of August, 2019 the people on Jammu & Kashmir got breath of fresh air and there was a different sense of Independence and Freedom in the atmosphere. After almost 70 years of special status, by which Kashmir was not a part of India fully, even being an integral part of India, the special status was removed by abrogation of Art. 370 of the Constitution of India by the Presidential Order of 2019,[1] and now Jammu and Kashmir was split into 2 different Union Territories, first, the UT of Jammu & Kashmir and second, the UT of Ladakh. Now the people will not be governed by two different Constitutions (Constitution of J&K and Constitution of India), there will be only one Constitution and all other laws governing the whole country “including the state of Jammu & Kashmir”; now the people of J&K will not have 2 different citizenships or identity but one common identity of “Citizen of India.” Before dwelling deep into the current abrogation of this special status and events that unfolded and the pages turned to make it happen let us go back in time, when all of this started.

What was Article 370?

In 1947, there was an end of more than 200 years long British Colonial rule in undivided India and “Lord Mountbatten came to India as the last Viceroy and was assigned the task of a ‘speedy transfer of power’ from Britishers to Dominion of India.” The viceroy came up with the plan for Indian independence, called as the “Mountbatten Plan”. This plan was put into action by theIndian Independence Act 1947, which partitioned into two dominions – India and Pakistan. ‘The princely states were given the choice to either remain independent or accede to India or Pakistan.’ In 1927, the ruler of Kashmir “Maharaja Hari Singh” brought a law of for the state denying the right to own property in the state to any outsider. In 1947 at the time of independence, Kashmir firstly sought to be independent province, neither joining India nor Pakistan, but then it signed a “standstill treaty with Pakistan and India”,[2] which was breached by the Pakistan, then to last resort for help to Hari Singh was India, Hari Singh signed the ‘Instrument of Accession [3] with India and sought help from New Delhi.’ He sought “special privileges for his people” on the lines of a ‘1927 law that denied outsiders the right to own property’ in the state and special status to the state. The matter was placed before the ‘Constituent Assembly of India’, and after a lot of deliberation, Article370 was inserted in the Constitution along with Art. 35-A. Article 370 acknowledges the special status of the state of J & K in terms of ‘autonomy and its ability to formulate laws for the state’s permanent residents.’

Nature of Article 370

Art. 370 was put under“Part XXI – Temporary, Transitional and Special Provisions”of the Constitution. Putting this special status under this part which itself titles the provisions as ‘temporary’ shows the intent of the constitution makers to give this special status as a temporary power and therefor the Art, 370 in itself provides for the process of its abrogation and that there is no need to go through the lengthy process of ‘constitutional amendment.’ Art. 370 (3) conferred  President with the  power to decide whether this article should continue or if it is to be modified. This can be done by the Presidentonlyon the recommendation by the ‘Constitution Assembly of Jammu & Kashmir.’ From this it can clearly understood that the ‘Constitution makers of India’ never intended this special status to be mandatory. The things were simple and unproblematic till the year 1957, But then came the root cause of all the problems, the Constituent assembly of J&K dissolved itself without providing any solution on the removal of this article.

Now what??

Does that mean Art. 370 has become permanent in nature??

Can it not be removed from the constitution??

The Supreme Court of India in its earlier decisions has laid down two perspectives on Art. 370. Firstly, at the initial stage in the cases of Prem Nath Kaul[4]and Sompat Prakash [5]it was held that “even after the dissolution of Constituent assembly Art. 370 continues to remains in force and it can be interpreted to be permanent in nature.”Now as the time progresses the court changed its stance a little and before the abrogation by the government like, the Supreme Court in Santosh Gupta[6]held that even if Art. 370 is permanent in nature the ‘constitution of India is supreme to that of J&K.’

Complexity in the matter

The retention of Article 370 and the special status of Kashmir created inequalities in rights to the people of J&K as compared to the rest of India. The Presidential Order of 1954 further altered important constitutional provisions, diluting fundamental rights in J&K. Notably, “several parts of the Constitution, such as Part IV (DPSP), Part VI (The States), and others, were not applicable to the state.” Additionally, key terms of the Preamble like “socialist” “secular” and “integrity” from the did not extend to Kashmir. Article 35A restricted fundamental rights for “residents outside the state” including ‘residency, property ownership, and employment.’ This provision also protects such restrictions from judicial review.

But above all of this the most important reason to remove art 370 was to solve “The Pakistan Problem” and the Pulwama Attack of February 2019 was the final nail in the coffin. So, it was in August 2019 the government finally decided to remove the elephant of Art. 370 from the room. So, what were the options available to the government for such removal of this special status?? Firstly, as described earlier would be the “constitutional amendment” under Art. 368 but this would also not have been an easy path to go as this amendment procedure would require a majority of atleast 2/3rd (two-third) majority in both the houses of the parliament along with the ratification by states. There was another answer available to this question that was eventually opted by the government but this also required various other circumstance to fall in place so as to complete the puzzle of Art. 370. This required certain changes in the constitution and a proclamation of emergency in the state. Ok, first thing first….

The parliament in its very first move redefined the constituent assembly under the Art. 367 (interpretation) for the purpose of Art. 370 (3), and that ‘the legislative assembly of J&K’ can be construed as constituent assembly, to give recommendation under Art. 370 (3). Now, what has made the process easier for the government was the already proclaimed emergency in the state (from 2018)[7] thus legislative assembly was not in session and the state was run by president through governor, all the powers of the LA were exercised by governor. Then what, governor recommended the removal of Art. 370 and President by order abrogated it.

Constitutional Challenge

On August 2, 2023, the Supreme Court of India initiated hearings on a series of petitions challenging the removal of Article 370, marking a significant legal debate. These hearings spanned a total of sixteen days, during which extensive arguments and discussions took place.

The central argument put forth by the petitioners revolved around that Article 370, originally designated as a ‘temporary provision,’ had evolved into a permanent feature following the dissolution of the Constituent Assembly of Jammu and Kashmir. In response to this claim, the bench raised a point, questioning the rationale behind placing Article 370 within the category of ‘temporary and transitory provisions’ in the Constitution. CJI Chandrachud emphasized that the Constitution’s Part XXI contained three expressions: temporary, transitional, and special. Notably, the term “transitional” did not appear in any headnotes or marginal notes, whereas “temporary” and “special” were explicitly mentioned. CJI Chandrachud pointed out that Article 370 explicitly used the term “temporary.” This led to the critical query of whether the authority under clause (3) of Article 370 could be rendered permanent after the Constituent Assembly’s conclusion, deviating from its original intent.

Another significant contention raised by the petitioners was the argument that “Article 370 could not be abrogated due to the dissolution of the Constituent Assembly of Jammu and Kashmir in 1957.” The bench explored the process for modifying or abrogating Article 370 post the Constituent Assembly’s dissolution, raising questions about how to establish a constitutional framework in such a scenario and whether deliberations on Article 370 changes were viable without a constituent assembly.

The petitioners to this insisted that Article 370 had become unamendable after the dissolution of the J&K Constituent Assembly, but the bench remained unconvinced. This led to inquiries about whether Article 370 was the only provision in the Constitution resistant to amendments and whether a new category, separate from the basic structure, could be created.

The discussion also encompassed the alleged misuse of Article 356, which permits the ‘imposition of President’s Rule in a state.’ The petitioners contended that Article 356’s purpose was to restore state machinery, not dismantle it. In the Jammu and Kashmir context, they argued that President’s Rule was imposed with the intent to undermine the state legislature. They emphasized that President’s Rule under Article 356 was inherently “temporary” and permanent actions could not be taken under its authority. The petitioners further disputed the validity of amending Article 370 through Article 367.

On the respondents’ side, it was argued that failing to modify Article 367 would effectively cement Article 370 as a permanent feature of the Indian Constitution. Without the Constituent Assembly, it was deemed impossible to modify Article 370. Furthermore, it was asserted that the Jammu and Kashmir Constitution lacked original constituent powers and was subservient to the Indian Constitution. Even if the Constituent Assembly had been in existence, its role in the abrogation of Article 370 would have been “recommendatory” in nature, with the President retaining the authority to make decisions, even against the Assembly’s recommendations.

After a lengthy and thorough 16-day hearing, the Supreme Court reserved its judgment. While it’s essential to remember that judges’ remarks during hearings can’t be taken as indicative of the final verdict but it appeared that the bench had reservations about the petitioners’ submissions. This could potentially signal a decision in favor of the respondents. The outcome of this landmark case holds immense significance as for the constitutional landscape of India and on the life of people in J&K

Conclusion

After all this the first question that comes to our mind is whether all of this was correct to do even if the constitutional to do (constitutional or not will be decided by the hon’ble Supreme Court) and what change did it bring.The abrogation of Art. 370 has been a vital cog for the development of the region, and also for the security of the UT. his is a significant drop from the ‘222 incidents recorded during the same period in 2020, and a staggering decrease from the 618 incidents in 2019’ over the same timeframe.[8]

Also, the injuries sustained by Border Security Forces in these incidents have substantially reduced. For instance, in 2019 (January to July), there were 64 reported injuries. In 2021, the number has reduced to just 10. ‘Government data show a decline of 32% in “acts of terrorism”between August 5, 2019, and June 6, 2022, compared with the 10 months preceding the abrogation. Deaths of security forces fell by 52%, and deaths of citizens by 14%. A reduction of 14% was recorded in the admission of terrorists.’

This has also helped achieving the purpose of unification of the nation and strengthening the idea of “Fraternity and brotherhood” throughout the country, even if few groups of the people will feel their right is being robbed but this unification is important as it will give a sense of security to the mass population of the Kashmir and bowing down only to one common flag of India, i.e., our Tiraṅgā (tri-color) will to the feeling of being Indian and an important and integral part of India in spirit as well, which the people of Kashmir were missing since last 75 years, because of the very reason we started with, Kashmir was not fully a part of India even after being the part of India. This abrogation of art. 370 and 35-A has led to the rapid development and growth in the region and the Union territory has also seen some important milestone, like in the Indian presidency of G-20 summit, an important meet G-20 tourism meet of the nations was held in the Jammu & Kashmir [9] and this all gave a strong message to the whole world that now we don’t shy away from calling Kashmir as India’s territory, and not just for the purpose of saying but also proving this by our actions, and no other nation can claim its right over our territory, and who knows if the day, which all Indians desire and dream, is also not far away in future, the day when we will regain our territory of POK (Pakistan Occupied Kashmir) and finally the whole of Kashmir will unite again and we will redo the wrongs of the past and will get back our PARADISE ON EARTH”.

[1]The Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272).

[2]Drishti IAS, In dept: Jammu & Kashmir (18th April, 2019) https://www.drishtiias.com/loksabha-rajyasabha-discussions/in-depth-jammu-and-kashmir/print_manually

[3]The Hindu, 1947: Maharaja Hari Singh signs Instrument of Accession (Aug 10, 2022 06:00 IST) https://frontline.thehindu.com/the-nation/india-at-75-epochal-moments-1947-maharaja-hari-singh-signs-instrument-of-accession-jammu-kashmir/article65727536.ece

[4]Prem Nath Kaul v. State of Jammu & Kashmir, 1959 AIR 749 (India).

[5]Sampat Prakash v. State of Jammu & Kashmir 1970 AIR 1118 (India).

[6]State Bank of India v. Santosh Gupta, (2017) 2 SCC 538 (India). (India).

[7]PM India website, Cabinet approves extension of President’s Rule in J&K for ‘six months with effect from 3rd July, 2019’ (12 Jun, 2019)https://www.pmindia.gov.in/en/news_updates/cabinet-approves-extension-of-presidents-rule-in-jk-for-six-months-with-effect-from-3rd-july-2019/

[8]Deeptiman Tiwary, The Indian Express, ‘Four years after removal of Article 370: How J&K security situation has changed’(6th August, 2023 19:18 IST)https://indianexpress.com/article/explained/four-years-after-removal-of-art-370-how-jk-security-situation-has-changed-8877147/

[9]PIB, Ministry of Tourism, Third G20 Tourism meeting to be organized from 22nd to 24th May at Srinagar (19 MAY 2023 8:05PM) https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1925618