Dr. Kirti Gupta

As the AI revolution accelerates and continues to reshape traditional business models, it has triggered a cascade of new legal, regulatory and policy challenges. At the forefront of these emerging issues are a growing number of high-stakes legal battles between content creators and major Generative AI (GenAI) companies behind large language models (LLMs). This article examines key legal themes and critical questions arising from recent developments at the intersection of AI and Copyright law.

AI is increasingly becoming integral to the inventive and creative process across a wide range of industries. As Generative AI (“GenAI”) tools transform our workflows, questions at the intersection of AI and copyright are requiring a reexamination of our IP system. One set of questions is whether creative works created using AI technologies in whole or in-part are eligible for copyright protection, and if so, under what conditions. Another set of questions relates to the potential copyright infringement of GenAI due to: (1) the use of potentially copyrighted material for the training of AI models and (2) the potential infringement by the output of GenAI models on copyrighted works.

On November 10, 2017, the Department of Justice’s (DOJ’s) new top antitrust enforcer, Assistant Attorney General (AAG) Makan Delrahim, delivered a powerful speech on antitrust law and policy enforcement towards intellectual property rights (IPRs). Former USPTO Director David Kappos described it as “the most important DOJ antitrust speech on IP during my decades practicing law”. … The speech clarifies that the new AAG views “any policy proposals with one-sided focus on hold-up with great skepticism because they pose a serious threat on the innovating process,” and submits that antitrust law should not be misused to police the private commitments such as FRAND that IP holders make to SSOs. In this, the speech agrees with the view shared by several scholars that FRAND commitments are contracts and a potential breach of those commitments may not be best suited under the purview of antitrust law and that “there are perfectly adequate and more appropriate common law and statutory remedies available to the SSO or its members”.

There is no credible evidence behind proposals to make the drastic changes embodied in the Innovation Act, the removal of discretion from judges to judge each case on an individual basis with mandatory stays and fee shifting, and new rules for pleading and discovery that would undermine the ability of legitimate inventors and patent holders from enforcing their rights against infringers.