Delhi High Court
Ani Media Pvt. Ltd vs Open Ai Opco Llc on 24 July, 2026
Author: Amit Bansal
Bench: Amit Bansal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 27th March, 2026
Judgment pronounced on: 24th July, 2026
I.A. 45300/2024
IN
+ CS(COMM) 1028/2024, I.A. 45301/2024 & I.A.26192/2025
ANI MEDIA PVT. LTD. .....Plaintiff
Through: Mr. Sidhant Kumar, Mr. Akshit Mago,
Ms. Manyaa Chandok, Ms. Anshika
Saxena and Ms. Lahar Jain, Advocates
Versus
OPEN AI OPCO LLC .....Defendant
Through: Mr. Amit Sibal, Senior Advocate with
Mr. Sanjeev Kapoor, Mr. Nirupam
Lodha, Mr. Madhav Khosla, Mr.
Gautam Wadhwa, Ms. Moha Paranjpe,
Mr. Abhi Udai Singh Gautam, Ms.
Rebecca Cardoso, Mr. Hardik Malik,
Ms. Vanshika Thapliyal, Mr. Rajat
Bector, Advocates
Mr. Akhil Sibal, Senior Advocate with
Mr. Aditya Gupta, Ms. Asavari Jain,
Mr. Shuvam Bhattacharya, Ms. Vani
Kaushik, Ms. Riddhie Bajaj, Ms.
Jahnavi Siddhu, Ms. Aishwarya Kane
and Mr. Sauhard Alung, Advocates for
IGAP/Intervenor in I.A. 4616/2025
Mr. Kapil Sibal, Senior Advocate and
Mr. Arvind P. Datar, Senior Advocate
with Mr. Shashank Mishra, Ms. Akshi
Rastogi, Mr. Parv Kaushik and Mr.
Suvaroop Saha Roy, Advocates for
Broadband India Forum
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(BIF)/Intervenor in I.A. 10766/2025
Ms. Haripriya Padmanabhan, Senior
Advocate with Mr. Shrutanjaya
Bhardwaj, Mr. Akshat Agrawal, Mr.
Tushar Srivastava, Mr. Shourya Das
Gupta, Ms. Siddhi Nagwekar, Ms.
Yashi Bajpai and Mr. Yash Tayal,
Advocates for Flux AI Labs/
Intervenor in I.A. 4615/2025
Mr. Ankit Sahni, Ms. Kritika Sahni,
Mr. Chirag Ahluwalia, Mr. Mohit
Maru, Ms. Tanisha Sharma,
Advocates for the Federation of Indian
Publishers, Intervenor in I.A. No. 470
of 2025
Mr. Rajshekhar Rao, Senior Advocate
and Mr. Chander M. Lall, Senior
Advocate with Mr. Ameet Datta, Mr.
Harsh Kaushik, Ms. Riddima Sharma,
Mr. Akshay Nagarajan, Ms. Rishikaa,
Ms. Gauri Khanna and Ms. Annanya
Mehan, Advocates for
DNPA/Intervenors in I.A. 2199/2025
& IMI/Intervenors in I.A. 4027/2025
Mr. Adarsh Ramanujan with
Mr. Parth Singh, Advocate, Amicus
Curiae
Professor Arul George Scaria, Amicus
Curiae.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
I.A. 45300/2024 (under Order XXXIX Rules 1 and 2 CPC)
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INDEX
PREFACE —————————————————————————————————————- 4
WORKING OF LLMS ————————————————————————————————- 8
A. TRAINING DATA ———————————————————————————————– 8
B. DATA PREPARATION AND MODEL TRAINING————————————————————— 9
C. POST-TRAINING———————————————————————————————- 10
D. USER INTERACTION —————————————————————————————– 10
E. RETRIEVAL-AUGMENTED GENERATION (RAG)——————————————————– 11
PROCEEDINGS IN THE SUIT———————————————————————————— 11
ISSUE NO.4
WHETHER THE COURTS IN INDIA HAVE JURISDICTION TO ENTERTAIN THE PRESENT LAW
SUIT CONSIDERING THAT THE SERVERS OF THE DEFENDANTS ARE LOCATED IN THE
UNITED STATES OF AMERICA ———————————————————————————- 13
SUBMISSIONS ——————————————————————————————————- 13
DISCUSSION AND ANALYSIS ————————————————————————————– 19
i. Whether this court has territorial jurisdiction to entertain the present suit. ———————– 19
ii. Whether the Copyright Act, 1957 would apply in relation to training claim since according to
Open AI training takes place on servers located outside India ————————————– 20
FINDINGS———————————————————————————————————- 22
ISSUE NO.2
WHETHER THE USE BY THE DEFENDANTS OF PLAINTIFF’S COPYRIGHTED DATA IN
ORDER TO GENERATE RESPONSES FOR ITS USERS, WOULD AMOUNT TO INFRINGEMENT
OF THE PLAINTIFF’S COPYRIGHT. ————————————————————————— 23
SUBMISSIONS ——————————————————————————————————- 23
DISCUSSION AND ANALYSIS ————————————————————————————– 34
i. Whether Open AI memorizes and regurgitates ANI’s copyrighted literary works in the form of
responses? —————————————————————————————————- 37
ii. Whether ChatGPT’s responses are substantial reproduction of ANI’s copyrighted literary
works? ——————————————————————————————————— 42
FINDINGS———————————————————————————————————- 60
ISSUE NO.1
WHETHER THE STORAGE BY THE DEFENDANTS OF PLAINTIFF’S DATA (WHICH IS IN THE
NATURE OF NEWS AND IS CLAIMED TO BE PROTECTED UNDER THE COPYRIGHT ACT,
1957) FOR TRAINING ITS SOFTWARE I.E., CHATGPT, WOULD AMOUNT TO INFRINGEMENT
OF PLAINTIFF’S COPYRIGHT ———————————————————————————– 61
SUBMISSIONS ——————————————————————————————————- 61
ISSUE NO.3
WHETHER THE DEFENDANTS’ USE OF PLAINTIFF’S COPYRIGHTED DATA QUALIFIES AS
‘FAIR USE’ IN TERMS OF SECTION 52 OF THE COPYRIGHT ACT, 1957. ————————— 68
SUBMISSIONS ——————————————————————————————————- 68
DISCUSSION AND ANALYSIS OF ISSUE NOS. 1 AND 3 ———————————————————- 86
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A. Scope of Section 14(a)(i) of the Copyright Act, 1957 ————————————————– 86
B. Legislative History of Section 52(1)(a)——————————————————————- 92
C. Interpretation of Section 52(1)(a) of the Copyright Act ———————————————– 93
D. Scope of Section 52(1)(a) ———————————————————————————- 95
I. PURPOSE TEST —————————————————————————————————- 96
a. Whether commercial use is entitled to protection under Section 52(1)(a)(i) ———————– 97
b. Requirement of “non-infringing copy” under Section 52(1)(a) of the Copyright Act. ———–104
c. Whether use by Open AI amounts to “private or personal use, including research” ————-108
II. FAIRNESS TEST ————————————————————————————————– 115
a. Whether Open AI’s use of ANI’s original literary works is limited to training its LLMs
underlying ChatGPT?—————————————————————————————–123
b. Whether the usage of ANI’s literary works by Open AI would result in economic competition
and would prejudice the legitimate interests of ANI, thereby causing actual or potential damage
to ANI? ———————————————————————————————————–124
c. Whether the functions performed by Open AI through ChatGPT serve the overall public
interest? ———————————————————————————————————-128
FINDINGS——————————————————————————————————— 129
BALANCE OF CONVENIENCE AND IRREPARABLE INJURY ———————————— 129
SUBMISSIONS —————————————————————————————————— 129
DISCUSSION AND ANALYSIS ————————————————————————————- 132
FINDINGS——————————————————————————————————— 134
CONCLUSION ——————————————————————————————————- 134
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PREFACE
1. Innovations affecting the works protected under the Copyright Act,
1957 (hereinafter the ‘Copyright Act‘), namely literary, dramatic, musical and
artistic works, cinematograph films, and sound recordings, have consistently
given rise to interpretive challenges in the application of traditional legal
provisions.
2. While tracing the history of copyright law, it is noteworthy that
globally, copyright law and technological innovation have long existed in a
dynamic relationship, traceable at least to the advent of the Gutenberg Press
in the fifteenth century, well before the enactment of the Statute of Anne in
17101.
3. With time, successive technologies have evolved, enabling new forms
of creative expression and widening avenues for dissemination, disrupting
settled copyright arrangements. Some of these technologies worth referring to
are player pianos, radio broadcasting, cable television, photocopying, home
video cassette recorders, digital downloading and streaming, and, more
recently, artificial intelligence (hereinafter ‘AI’). Therefore, technological
advancement continues to generate novel questions that necessitate periodic
re-examination of established copyright doctrine.
4. It is the judiciary, as the primary forum for adjudication, that is
invariably called upon to address the nuanced legal questions arising from
such disruptive technologies, often resulting in conflicts, as in the present
1
In 1709 British parliament enacted the Statute of Anne; short title: Copyright Act 1709 8 Anne c.21; long
title: An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or
purchasers of such Copies, during the Times therein mentioned. Named after Anne, Queen of Great Britain,
this was the first copyright statute in the Kingdom of Great Britain, and the first full-fledged copyright statute
in the world. It was enacted in the regnal year 1709 to 1710, and entered into force on April 10, 1710.
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case. Therefore, the Courts are required to step in to fill the gap between
advancing technologies and existing laws.
5. AI is currently a technology of widespread interest, and India is
considered a forerunner in this field. In response to international AI
competition, Sarvam AI of India launched its first domestic Large Language
Model (hereinafter ‘LLM’) on 18th February 20262. Research and
development of similar LLMs is also underway in India to make India an AI
hub. Data is the oil for LLMs to work efficiently.
6. Procuring publicly available data by AI innovators for training LLMs
without the permission of the respective copyright holders potentially will
raise legal issues, as arising in the present suit. The present suit has been filed
by the plaintiff (hereinafter ‘ANI’) against the defendant (hereinafter ‘Open
AI’) alleging unauthorised use of ANI’s copyrighted works by Open AI. ANI
claims copyright infringement on two counts:
i. Training claim – copying and storage of ANI’s data to train Open AI’s
LLM; and
ii. Reproduction or Output claim – reproduction of ANI’s works in the
output produced by Open AI’s LLM through its application ChatGPT.
7. This case is a perfect illustration of how the law must continually catch
up with technology. The case has to be adjudicated on the anvil of the
Copyright Act, originally enacted in 1957, though amended from time to time.
Clearly, when the Copyright Act or any of its amendments were enacted, the
legislature could not have imagined the vast technological advances in the
2
Aroon Deep, Bengaluru firm unveils two AI language models, The Hindu (Feb. 18, 2026),
https://www.thehindu.com/sci-tech/technology/bengaluru-firm-unveils-two-ai-language-
models/article70648438.ece. , accessed on 20th February 2026.
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field of AI.
8. In these uncharted areas, Courts often take aid from judgments of
foreign Courts on similar issues. On various occasions, while dealing with
Intellectual Property laws, the Indian Courts have recognized the importance
of global doctrinal interdependence. The Courts laid emphasis on
harmonization of basic principles of laws in foreign jurisprudence with the
national laws, especially when the national laws do not indicate a contrary
intent3. However, while doing so, the Courts must be mindful that the
underlying legislation in foreign jurisdictions may be quite different from that
prevailing in India.
9. For the purposes of adjudication of the present application for interim
injunction filed by ANI, this Court had framed issues on 19th November, 2024,
which are set out below:
“I. Whether the storage by the defendants of plaintiff’s data (which is in
the nature of news and is claimed to be protected under the Copyright
Act, 1957) for training its software i.e., ChatGPT, would amount to
infringement of plaintiff’s copyright.
II. Whether the use by the defendants of plaintiff’s copyrighted data in
order to generate responses for its users, would amount to infringement
of the plaintiff’s copyright.
III. Whether the defendants’ use of plaintiff’s copyrighted data qualifies as
‘fair use’ in terms of Section 52 of the Copyright Act, 1957.
IV. Whether the Courts in India have jurisdiction to entertain the present
lawsuit considering that the servers of the defendants are located in the
United States of America.”
Even though Issue no. 3 refers to ‘fair use’ [as it was framed on the first date
of hearing] it should be read as “fair dealing” which is the expression used in
Section 52(1)(a) of the Copyright Act.
3
Intex Technologies v. Telefonaktiebolaget LM Ericsson, 2023:DHC:2243-DB.
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10. Since the question of this Court’s jurisdiction to adjudicate the present
application is foundational to the determination of the remaining issues, the
Court shall first consider Issue No. 4. Thereafter, in view of its broader
bearing on Issue Nos. 1 and 3, the Court shall examine Issue No. 2. As the
Amici Curiae and counsel for the parties were ad idem that Issue Nos. 1 and
3 are intertwined, particularly in light of Open AI’s plea of fair dealing in
response to the allegations relating to storage, the said issues shall be
considered together, subsequently.
11. With the aforesaid backdrop, I proceed to decide the present
application.
WORKING OF LLMS
12. It is necessary to understand the functioning of LLMs for the purpose
of adjudicating the present application, as the issues identified herein arise
from, and are intrinsically connected with, the manner in which LLMs
operate. Accordingly, it is apposite to first examine the technical functioning
of LLMs.
13. Based on the submissions of the parties and learned Amici Curiae and
also from the common general knowledge available, the steps involved in the
working of LLMs, may be summarised in the following paragraphs.
A. Training Data
14. A large language model is a computational system that can predict the
next word from previous words. That is, given a context or prefix of words, a
language model assigns a probability distribution over the possible next
words.
15. For enabling a model to predict subsequent words, the model is first
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trained on an enormous text corpus with datasets of hundreds of billions of
words, generally scraped from the web, which is referred to as the ‘raw data’.
16. The ‘raw data’ used for training LLMs would include automatically
scraped data from publicly available sources on the internet, as well as
licensed materials. The web text is usually taken from corpora of
automatically crawled web pages, such as the Common Crawl. The data
comprises materials, including but not limited to books, articles, blog posts,
etc., so that, based on the aforesaid data, the model can make predictions.
17. Pre-training data collected from the web is filtered for both quality and
safety. Quality filtering uses automated tools to score documents based on
their usefulness and reliability, often by comparing them with trusted sources
such as books and reputable websites, while avoiding content containing
personal information or adult material. This generally improves language
model performance. Safety filtering aims to remove harmful or toxic content,
typically using existing toxicity-detection tools.4
18. Website owners can indicate that they do not want their sites crawled
by web crawlers.5
B. Data preparation and Model training
19. The raw data is divided into smaller pieces called tokens, each assigned
a ‘Token ID’, which is just a number. This is called tokenisation. This process
is the first step in training most of the LLMs.6
4
Matthew Sag and Peter K. Yu, ‘The Globalization of Copyright Exceptions for AI Training’ (Emory Law
Journal, 2025, Forthcoming) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4976393.
5
Daniel Jurafsky and James H. Martin. 2026. Speech and Language Processing: An Introduction to Natural
Language Processing, Computational Linguistics, and Speech Recognition with Language Models, 3rd
edition. Online manuscript released January 6, 2026. https://web.stanford.edu/~jurafsky/slp3.
6
Daniel J. Gervais et al., ‘The Heart of the Matter: Copyright, AI Training, and LLMs’ (2024)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4963711.
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20. Thereafter, each token is converted to a vector via an ’embedding’
process. ‘Vectors’ are a numerical representation of semantic information
about a ‘token’.
21. In the training exercise, the LLM is repeatedly fed parts of the training
data where a word or a sequence of words is masked, and it is made to predict
the next words or sentences, which are then compared with the original ‘raw
text’ to verify correctness. The initial predictions may not be accurate, but with
each repetition, the model readjusts and refines its prediction to reach the most
probable statistical output in each scenario.
22. The choice of which word to generate in LLMs is done by sampling
from the distribution of possible next words.
C. Post-training
23. Thereafter, the model is again fine-tuned to reduce prediction errors
and to follow instructions better, for example, to answer questions, give
summaries, write code, translate sentences, and so on. It does this by being
trained on a special corpus containing many texts with both instructions and
their correct responses.
24. The model is then adjusted to give more useful responses and to avoid
producing harmful or offensive content.
D. User interaction
25. A user instructs LLM via a prompt, a text string that a user issues to a
language model to get the model to do something useful by iteratively
generating tokens conditioned on the prompt. The process of finding effective
prompts for a task is known as prompt engineering.7
7
Mark Lemley, ‘How Generative AI Turns Copyright Law Upside Down’ (2024) 25(2) Sci. & Tech. LR 36.
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E. Retrieval-Augmented Generation (RAG)
26. Retrieval-Augmented Generation (‘RAG’) is an innovative feature of
LLMs that optimises their output. This feature references an authoritative
knowledge base outside of its training data sources before generating a
response. This feature does not predominantly rely on training data to generate
output. Instead, it uses an information retrieval component that utilises the
user prompt to pull information from external data storage.8 The LLM uses
both training data and external information to generate better responses via
RAG.
27. For the sake of convenience, ‘LLM(s)’ and ‘ChatGPT’ has been used
interchangeably in the judgment and must be read likewise. When reference
is made to ‘ChatGPT search’ function, it has been specifically mentioned in
the judgment as such.
PROCEEDINGS IN THE SUIT
28. The present suit, accompanied by an application seeking interim
injunction and other ancillary applications, was first listed before this Court
on 19th November 2024. On the same date, four issues were framed and the
Court appointed two Amici Curiae to assist the Court.
29. Thereafter, multiple intervention applications were filed in the present
suit, the details of which are given below:
29.1. I.A. 470/2025 has been filed on behalf of Federation of Indian
Publishers, a national representative body of the Indian
publishing industry.
8
What is RAG? – Retrieval-Augmented Generation AI Explained – AWS, https://aws.amazon.com/what-
is/retrieval-augmented-generation/.
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29.2. I.A. 2199/2025 has been filed on behalf of Digital News
Publishers Association and its members, which are digital news
platforms.
29.3. I.A. 4027/2025 has been filed on behalf of the Indian Music
Industry, which is an organization established to defend, preserve
and develop the rights of the Phonogram Producers.
29.4. I.A. 4615/2025 has been filed on behalf of Flux Labs AI Private
Ltd., a Generative Artificial Intelligence enabled start-up
company.
29.5. I.A. 4616/2025 has been filed on behalf of IGAP Project LLP, a
think tank focusing on the intersection of law, policy, and
emerging technologies, including AI.
29.6. I.A. 10766/2025 has been filed on behalf of Broadband India
Forum, an independent policy forum and think tank.
30. The intervenors in I.A. 470/2025, I.A. 2199/2025 and I.A. 4027/2025
are broadly supporting the case of ANI and the intervenors in I.A. 4615/2025,
I.A. 4616/2025 and I.A. 10766/2025 are broadly supporting the case of
Open AI.
31. On 4th July 2025, this Court allowed the aforesaid intervention
applications and permitted the intervenors to make submissions limited to the
legal issues framed on 19th November 2024.
32. ANI, Open AI as well as the intervenors have filed their written
submissions along with judgments in support.
33. Submissions on behalf of the parties were heard on 21st February 2025,
10th March 2025, 18th March 2025, 28th March 2025, 2nd April 2025, 22nd April
2025, 29th April 2025, 4th July 2025, 23rd July 2025, 30th July 2025, 5th August
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2025, 18th August 2025, 12th September 2025, 23rd September 2025, 17th
October 2025, 7th November 2025, 21st November 2025, 23rd January 2026,
20th February 2026, 20th March 2026 and 27th March 2026, when the judgment
was reserved and the parties were given liberty to file their closing
submissions.
34. ANI, Open AI and the two Amici Curiae have filed their concluding
written submissions.
34.1 The concluding written submissions dated 2nd April 2026 sent on behalf
of Professor Arul George Scaria via email to the Court Master, have also been
taken on record.
35. With the aforesaid backdrop, I proceed with my issues-wise analysis.
Issue No.4 Whether the Courts in India have jurisdiction to
entertain the present law suit considering that the servers
of the defendants are located in the United States of
America
SUBMISSIONS
Submissions on behalf of the Defendant (OPEN AI)9
36. Mr. Amit Sibal, senior counsel appearing on behalf of Open AI made
the following submissions:
36.1. ANI has joined two separate causes of action in the present suit i.e. – (i)
use of publicly available data by Open AI on servers located outside India to
train LLMs underlying ChatGPT (‘training claim’) and, (ii) the responses
received by ANI from ChatGPT allegedly similar to content over which ANI
holds copyright (‘reproduction claim’). Therefore, ANI has to establish9
Since the issue of jurisdiction has been raised by the defendant, it is deemed appropriate that the submissions
of the defendant are recorded first.
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jurisdiction qua both causes of action.
36.2. Insofar as the training claim is concerned, it is an undisputed position
that the training takes place outside India on the basis of data that is stored in
servers outside India. Therefore, merely because the jurisdiction can be
established in respect of the reproduction claim, this Court would not have
jurisdiction in respect of training claim.
36.3. The Copyright Act and in particular Section 62 thereof read with
Section 1(2) of the Copyright Act, confers jurisdiction only within the
territory of India. The Copyright Act was not intended to have extra-territorial
jurisdiction.
36.4. The reliance placed by Professor Scaria on the judgment of a
Coordinate Bench in Neetu Singh v. Telegram10 is misplaced insofar as the
jurisdiction in respect of training claim is concerned. In Neetu Singh (supra),
the infringement occurred within the jurisdiction of this Court and in that
context, the Court observed that it would be immaterial if telegram servers are
located outside India. Similarly, reliance placed on the judgment of the
Supreme Court in Exphar SA v. Eupharma Laboratories11 and the judgment
of Division Bench in Blueberry Books v. Google India12 is misplaced.
36.5. The test laid down by the judgment of the Division Bench in Banyan
Tree Holding v. A. Murali Krishna Reddy13 for the purposes of jurisdiction
is limited. The purposeful availment test as laid down in Banyan Tree (supra)
cannot be used to confer jurisdiction in respect of causes of action occurring
outside India.
10
2022 SCC OnLine Del 2637.
11
(2004) 3 SCC 688.
12
2016 SCC Online Del 3338.
13
2009 SCC OnLine Del 3780.
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36.6. Insofar as the reproduction claim is concerned, at the time of using the
ChatGPT service, the user agrees to ‘terms of use’ of ChatGPT, which
provides jurisdiction of the Courts in San Francisco, California.
Submissions on behalf of the Plaintiff (ANI)
37. Mr. Sidhant Kumar, counsel appearing on behalf of ANI made the
following submissions:
37.1. In terms of Section 62(2) of the Copyright Act, copyright owners can
file suit for infringement in the jurisdiction where they reside or conduct
business. Therefore, the physical location of Open AI’s servers is of no
consequence. ANI’s principal and registered office is located within the
jurisdiction of this Court.
37.2. Even in terms of Section 20(b) of the Code of Civil Procedure, 1908
(hereinafter ‘CPC‘), since Open AI operates an interactive website that
enables commercial transactions within the jurisdiction of this Court, i.e.
Open AI collects subscription fee from users located in this jurisdiction, Open
AI would be amenable to jurisdiction of this Court.
37.3. Open AI actively attracts the consumers through advertising and public
outreach efforts in India, that are within the jurisdiction of this Court.
Purposeful engagement of ANI’s consumers and a targeted marketing
sufficiently demonstrate compliance of Section 20(c) of the CPC.
37.4. The various infringement activities alleged in the plaint have taken
place within the jurisdiction of this Court. The disputes raised in the present
suit are independent of ‘terms of use’ of ChatGPT. The acts that constitute
copyright infringement are independent of any contractual agreements
between the users and Open AI. The statutory remedies such as those provided
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under Section 62 of the Copyright Act cannot be waived through contractual
stipulations.
Intervenors supporting ANI
i. Submissions on behalf of the Intervenor – DNPA (I.A. 2199/2025)
38. Mr. Rajshekhar Rao, senior counsel appearing on behalf of intervenors
in I.A. 2199/2025 made the following submissions:
38.1. The copies/reproduction of Indian works which are first published in
India and thereafter made available by Open AI to attract Indian users, would
imply that at the very least part of the cause of action arises within the
jurisdiction of this Court. Therefore, in terms of Section 62 of the Copyright
Act, read with judgment of the Supreme Court in Indian Performing Rights
Society v. Sanjay Dalia14, this Court would have the jurisdiction to entertain
the present suit.
38.2. Open AI is entering into commercial transactions within the jurisdiction
of this Court and specifically targeting the customers. Reliance is placed on
Banyan Tree (supra).
38.3. Neither the ‘terms of use’ of Open AI’s ChatGPT, nor the fact that the
servers located outside India, would oust the jurisdiction of this Court under
Section 62 of the Copyright Act as well as Section 20 of the CPC.
ii. Submissions on behalf of the Intervenor – Indian Music Industry (I.A.
4027/2025)
39. Mr. C.M. Lall, senior counsel appearing on behalf of intervenors in I.A.
4027/2025 made the following submissions:
14
(2015) 10 SCC 161.
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39.1. Jurisdiction is also made out on the parameters of ‘purposeful
availment’ as laid down in Banyan Tree (supra). In the present case, availment
can be demonstrated since Open AI has ‘paid subscribers’ of its services
within the jurisdiction of this Court and the said subscribers and users interact
with the service within the jurisdiction.
iii. Written Submissions filed by Mr. Ankit Sahni, Advocate on behalf of the
Intervenor – Federation of Indian Publishers (FIP) (I.A. 470/2025)
40. This Court would have jurisdiction under Section 62 of the Copyright
Act. In this regard, reliance has been placed on the judgment of the Supreme
Court in Exphar15 (supra) and Dabur India Ltd. v. K.R. Industries16 to submit
that Section 62 of the Copyright Act was inserted by the Parliament to
prescribe an additional ground for attracting jurisdiction over and above
Section 20 of CPC.
40.1 Since Open AI’s services are accessible within the jurisdiction of this
Court and the outputs generated by Open AI’s ChatGPT application infringes
the copyright of ANI, a substantial part of cause of action arises within the
jurisdiction of this Court to invoke Section 20 of CPC.
Submissions of Mr. Adarsh Ramanujan, Amicus Curiae
41. Mr. Ramanujan made the following submissions:
41.1. The location of Open AI’s servers outside India is irrelevant as ANI has
invoked Section 62 of the Copyright Act. There is no challenge by Open AI
to the assertion of ANI that its principal place of business is within the
jurisdiction of this Court.
15
¶ 13.
16
(2008) 10 SCC 595, ¶ 32.
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41.2. Insofar as the submission of Open AI is concerned that the infringement
relating to the training claim occurs outside the jurisdiction of this Court, what
has to be seen is that the training process involves access of data from India
and transmission of the said data from India. Therefore, it cannot be said that
just because the training occurs outside the jurisdiction of this Court, this
Court would not have jurisdiction. The training claim has to be seen in a
holistic manner which would necessarily involve access and transmission of
data from India before the same is stored overseas.
Submissions of Professor Arul George Scaria, Amicus Curiae
42. Prof. Scaria made the following submissions:
42.1. There is no dispute raised to the fact that ANI has its principal office in
New Delhi. Therefore, this Court would have jurisdiction under Section 62(2)
of the Copyright Act.
42.2. Since Open AI is making its active services available to the users in
India, including those in Delhi, the Courts in India would have jurisdiction in
terms of Section 20 of the CPC.
42.3. Reliance is placed on the judgment of the Supreme Court in Exphar
(supra) and the judgment passed by the Division Bench of this Court in
Blueberry Books (supra) and the judgment of a Coordinate Bench in Neetu
Singh (supra).
42.4. Insofar as aspect of the territoriality of Indian Copyright Act is
concerned, he supports the contention of Open AI that since the entire training
process occurs outside India merely because Open AI accesses data from India
would not make the infringement subject to Indian Copyright Act.
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42.5. In Getty Images v. Stability AI17 the plaintiff in the United Kingdom
(‘UK’) did not press the training claim as the training took place outside UK.
DISCUSSION AND ANALYSIS
43. As discussed earlier, since the issue of jurisdiction goes to the root of
the matter, it would be taken for consideration at the beginning.
44. On the aspect of jurisdiction, based on the objections raised by Open
AI, essentially the following two issues arise for consideration:
i. Whether this Court has territorial jurisdiction to entertain the present
suit.
ii. Whether the Copyright Act would apply in relation to training claim
since according to Open AI training takes place on servers located
outside India.
i. Whether this Court has territorial jurisdiction to entertain the present
suit.
45. Insofar as the territorial jurisdiction of this Court to entertain the present
suit is concerned, it is an admitted position that ANI has its principal place of
business as well as its registered office within the jurisdiction of this Court.
Therefore, in terms of Section 62(2) of the Copyright Act, this Court would
have the territorial jurisdiction to entertain the present suit.
46. It is also an admitted position that Open AI specifically targets/offers
its services to users/subscribers across India, including those located within
the jurisdiction of this Court.
47. Even alleged infringing activities mentioned in the plaint, i.e. responses
17
[2025] EWHC 38 (Ch).
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generated by Open AI in India based on the prompts by ANI, took place within
the jurisdiction of this Court.
48. Accordingly, at this prima facie stage, I hold that this Court would have
the territorial jurisdiction to entertain the present suit in terms of Section 20
of the CPC as well as Section 62(2) of the Copyright Act.
ii. Whether the Copyright Act would apply in relation to training claim
since according to Open AI training takes place on servers located
outside India
49. It has been argued on behalf of Open AI that its LLMs are trained
outside India and the training data is stored and processed in the servers
located in the United States of America (hereinafter ‘US’). On behalf of Open
AI, it is contended that the Indian Copyright Act would not apply outside the
territory of India. In support of its contention, reliance is placed on the
judgment of the Division Bench in Blueberry Books (supra). In the said case,
Amazon, which was a defendant in the suit took the defence that the infringing
act took place exclusively in the US. Though Amazon admitted that it has
business/commercial activities in India, the alleged infringing activity did not
occur within the jurisdiction of this Court.
50. The Division Bench, in the said case, upheld the territorial jurisdiction
of this Court. Insofar as the argument of Amazon with regard to the infringing
activity taking place in the US was concerned, the Division Bench did not
uphold the contention of Amazon. Paragraph 27 of Blueberry Books (supra)
is set out below:
“27. As far as inapplicability of the provisions of the Act to
infringements within the USA are concerned, we note that the
submission is based on Amazon’s arguments to that effect. Its unilateralSignature Not Verified
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assertion that there are downloading restrictions, based on a bare
reading of the documents – or that only 33 downloads took place, for a
small amount, are not relevant; they are contentious and accepting them
would be giving disproportionate weight to the pleadings of one party
and precluding the rights of the plaintiff, finally.”
51. In my view, the storing of ANI’s works on the US servers is a terminal
step in the chain of events which begin from access of copyrighted works
from India and transmission of the same abroad. There can be no doubt that
Copyright Act cannot have jurisdiction outside the territory of India.
However, the Copyright Act does not require this Court to sever the chain of
events and examine only the last step. On a prima facie view, Open AI’s
argument is untenable as it would lead to evasion of Indian copyright law by
infringers who shift the terminal link to servers abroad.
52. In Neetu Singh (supra), a Coordinate Bench of this Court has observed
that merely because Telegram chooses to locate its servers in Singapore, that
would not affect the right of the copyright owners, to sue Telegram in India.
The relevant observations from the aforesaid judgment are set out below:
“46. In view of the above factual and legal position, in the opinion of
this Court, merely because Telegram chooses to locate its server in
Singapore, the same cannot result in the Plaintiffs’ – who are
copyright owners of course materials – being left completely
remediless against the actual infringers, especially in order to claim
damages and avail of other legal remedies in accordance with law. If
such an argument is accepted, in the current world where most
dissemination happens through online messaging services and
platforms, IP violations would go completely unchecked. This cannot
be the intention of law. The provisions of the IT Act and the Rules
made therein have to be construed harmoniously with the rights and
remedies provided to the copyright owners under the Copyright Act.
Indian Courts are competent to decide issues relating to infringement
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divest the Indian Courts from dealing with copyright disputes or divest
copyright owners from availing their remedies in Indian Courts. In
the present age of cloud computing and diminishing national
boundaries in data storage, conventional concepts of territoriality
cannot be strictly applied. The dynamic evolution of law is essential
to ensure appropriate remedies in case of violation of copyright and
other IP laws.”
[Emphasis supplied]
53. The aforesaid reasoning would be fully applicable in the present case.
In Neetu Singh (supra), even though the data was stored in servers outside
India, the same was being circulated within the jurisdiction of this Court.
54. In my view, the act of Open AI in scraping of ANI’s copyrighted
material and training of its LLM cannot be entirely divorced from the output
claim. Since the output claim is based on training of the LLM, and the output
is reproduced within the jurisdiction of this Court, I am not inclined to
separate the two causes of action.
FINDINGS
55. On a prima facie view, it cannot be said at this stage that this Court
does not have the territorial jurisdiction to entertain the present suit or that the
alleged infringement on account of training would involve extra-territorial
application of the Indian Copyright Act.
56. As discussed earlier, next, I would take up Issue No. 2 for
consideration.
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Issue No.2 Whether the use by the defendants of Plaintiff’s
copyrighted data in order to generate responses for its
users, would amount to infringement of the Plaintiff’s
copyright.
SUBMISSIONS
Submissions on behalf of the Plaintiff (ANI)
57. Mr. Sidhant Kumar, counsel appearing on behalf of ANI made the
following submissions:
57.1. LLMs generate responses by matching user input with the vector
database and predicting the token sequences. This is the process of ‘de-
tokenization’. Once a response is formed, detokenization converts tokens into
readable text by reassembling words, phrases, and sentences. Detokenization
reconstructs raw data into its original textual form, converting training data
(including ANI’s works) back into a format readable by humans. Therefore,
the whole process amounts to reproduction of raw data.
57.2. ANI has provided instances of ChatGPT’s unauthorized reproduction
of its works while responding to the ChatGPT’s users, in paragraph 15 of the
interim application. ANI claims these examples are illustrative and not
exhaustive.
57.3. ChatGPT’s output retains the original and creative elements of the
ANI’s text and thereby violates ANI’s proprietary rights. Some of the
responses demonstrate exact or nearly exact copies of ANI’s data. This occurs
due to memorization of the raw data/ training data.
57.4. The outputs generated by ChatGPT are not derivative literary works
either, as it requires the author to exercise independent skill, labour, and
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resources [Ref. Eastern Book Company v. D.B. Modak18]. In the present
case, the user generated responses show that there is no independent
application of mind. At best, the user generated responses can be considered
adaptations of ANI’s works as these responses are merely a re-arrangement
of ANI’s works.
57.5. Open AI itself admits that verbatim reproduction of content from the
raw data occurs in cases where the same content occurs repeatedly in the raw
data, through multiple sources on the internet. The very nature of ANI’s
business model makes its copyrighted works available on various platforms
including its subscribers’ websites, which are leading news publications.
57.6. The defence of Open AI that ANI’s works are available in the public
domain and can be used for training Open AI’s LLM without obtaining a
license from ANI, is not valid and strikes at the root of copyright law. Public
availability does not nullify copyright or grant a universal license for
unrestricted use. ANI is not divested of its exclusive rights in its works only
because it has licensed its content to its subscribers.
57.7. Open AI has recognized similar proprietary rights of other news
organizations and entered into license agreements with other news
organizations such as Financial Times, Associated Press and Condé Nast, and
has acknowledged the copyright of these entities.
57.8. Open AI has also infringed ANI’s exclusive right to translate the works,
for which ANI invests significant time and effort. In this regard, reliance is
placed on the English version of the interview given by Mr. Neeraj Chopra’s
mother, which was originally in Hindi and was translated into English
18
(2008) 1 SCC 1.
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by ANI.
57.9. In his rejoinder submissions, counsel for ANI placed reliance on the
following foreign judgments:
(i) In The Associated Press v. Meltwater U.S. Holdings, Inc.19, the US
District Court held that summarizing plaintiff’s works using
computer programme without adding any commentary is not
transformative and hence, it does not constitute fair use under the
US Copyright Act.
(ii) In GEMA v. Open AI20, the Munich Regional Court granted an
injunctive relief in favour of GEMA and against Open AI holding
that there is memorization of training data and consequential
reproduction.
(iii) In The Advance Local Media LLC et al. v. Cohere Inc.21, the US
District Court denied Cohere’s partial motion to dismiss, holding
that substitutive summaries could constitute copyright infringement,
and that the generation of hallucinated articles falsely attributed to
publishers/plaintiffs constituted a classic passing-off claim.
Intervenors supporting ANI
i. Submissions on behalf of the Intervenor – DNPA (I.A. 2199/2025)
58. Mr. Rajshekhar Rao, senior counsel appearing on behalf of intervenors
in I.A. 2199/2025 made the following submissions:
58.1. The LLM models inherently memorize content. This can be implied
19
931 F. Supp. 2d 537 (S.D.N.Y. 2013).
20
case no. 42 O 14139/24, decided on 11 November 2025.
21
Advance Local Media LLC v. Cohere Inc., 1:25-cv-01305, (S.D.N.Y.).
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from the fact that LLMs can reproduce verbatim copies of unique forms of
content on which they are trained.
58.2. The reproduction of copies of training data implies that LLMs retain
such data. The submission made on behalf of Open AI that LLMs only keep
the non-expressive components of copyrighted works is incorrect. It is also
incorrect to suggest that LLM models only learn rules of grammar and syntax.
58.3. The Copyright Act does not distinguish between ‘expressive’ and ‘non-
expressive’ uses for the purpose of copyright infringement.
ii. Submissions on behalf of the Intervenor – Indian Music Industry (I.A.
4027/2025)
59. Mr. C.M. Lall, senior counsel appearing on behalf of intervenors in I.A.
4027/2025 made the following submissions:
59.1. Where the output amounts to substantial reproduction of original work,
the same would amount to copyright infringement. It is well-established that
LLM models retain copies of their training data and this is apparent from the
admission made by Open AI with regard to ‘regurgitation’.
59.2. Accordingly, regurgitation or extraction of training data from the LLM
model, which results in a response/ output to a user prompt being a substantial
reproduction of the original work, will constitute infringement.
iii. Written Submissions filed by Mr. Ankit Sahni, Advocate on behalf of the
Intervenor – Federation of Indian Publishers (FIP) (I.A. 470/2025)
60. ChatGPT regurgitates works on which it has been trained in the
outputs/responses generated for its users and this would amount to
infringement under the Copyright Act as the outputs/responses are a
substantial reproduction of the copyrighted works.
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Submissions on behalf of the Defendant (OPEN AI)
61. Mr. Amit Sibal, senior counsel appearing on behalf of Open AI made
the following submissions:
61.1. The cut-off date for training an LLM is several months prior to the
launch of a model. In respect of the models available to ANI in the lead up to
the present suit, the cut-off dates for training were either April 2022 (for GPT
4) or April 2024 (for GPT 4o). Each of the 14 (fourteen) works that ANI
alleges have been infringed in the plaint were admittedly authored and
published subsequent to April 2024 (in either August or September 2024). It
is therefore undisputed that the training data on which Open AI’s LLMs were
trained did not contain the 14 (fourteen) works that ANI alleges were
infringed.
61.2. ANI has not identified any other works that it claims copyright over.
Therefore, ANI cannot seek a speculative finding of infringement over
unidentified works.
61.3. There is no exclusive right to ‘use’ any works under Section 14 of the
Copyright Act. Therefore, ANI’s allegation regarding ‘use’ of ANI’s work by
Open AI cannot amount to infringement. The LLMs underlying ChatGPT do
not store or reproduce training data. Nor do they access data on which they
were trained once the pre-training phase is complete. The only ‘use’ for which
this data is deployed is during the training of Open AI’s LLMs underlying
ChatGPT.
61.4. ChatGPT is not designed to reproduce the extracts of content forming
a part of its training data, but may use information or facts that it has ‘learnt’
from such content in the course of its training towards responses to the user
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prompts. Therefore, ChatGPT cannot be said to ‘duplicate’ or ‘reproduce’ the
‘manner of presentation’ of content on which the models underlying
ChatGPT have been trained.
61.5. It is the settled position of law that copyright holder’s rights are limited
to the protection of the manner in which an idea or a fact is expressed.
However, there is no such protection on an underlying idea or fact. This is
especially true in the context of news, where the underlying fact is incapable
of copyright protection. In fact, there is a predominant public interest in the
wide dissemination of such facts. Hence, ANI cannot claim monopoly of use
over the said facts.
61.6. Copyright in news and other factual literary content is limited only to
the expression thereof. In the case of ‘news’, the threshold for establishing
substantial similarity in the expression is higher. [Ref: Feist Publications v.
Rural Telephone Service22].
61.7. Grammatical rules and syntax by themselves cannot be protected by
copyright because they are basic rules for sentence formation.
61.8. Indian copyright law explicitly rejects the ‘sweat of the brow’ doctrine
and has adopted the ‘skill and judgment test’ to determine whether a work
would be entitled to protection under Indian copyright law. [Ref. Eastern
Book Company v. D.B. Modak (supra)]
61.9. ANI has sought to present limited extracts of a particular work rather
than the whole work to allege infringement. For the purpose of determining
copyright infringement, it is not permissible to split or compartmentalize or
22
499 U.S. 340 (1991).
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dissect ANI’s work into parts, then seek to compare such parts against the
alleged infringed work. [Ref. Star India v. Leo Burnett23]
61.10. ANI has not even been able to demonstrate substantial similarity, let
alone verbatim reproduction in respect of the limited instances that have been
cited in the plaint. This is despite the fact that ANI made extreme efforts to
try and obtain a verbatim/ substantially similar response from ChatGPT
through a series of adversarial prompts.
61.11. An infringing copy must be a substantial or material reproduction.
Where similarities in the two works exist alongside broad dissimilarities,
which negate the intention to copy the original and the coincidences appearing
in the two works are clearly incidental, no infringement of the copyright
comes into existence. [Ref. R.G. Anand v. Deluxe Films24; Bikramjeet Singh
Bhullar v. Yash Raj Films25]
61.12. Different ChatGPT users receive different responses based on the same
prompts.
61.13. Even in respect of ANI’s allegations that the ChatGPT search feature
reproduces results from ANI’s website, it is submitted that a mere perusal of
the alleged response(s) relied upon by ANI makes it apparent that the same
are neither identical nor substantially similar to the corresponding articles
relied upon by ANI. Further, in such a case, ChatGPT provides a reference/
link to the source but does not reproduce content therefrom.
23
2002 SCC OnLine Bom 942.
24
(1978) 4 SCC 118.
25
(2023) SCC OnLine Del 8212.
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61.14. ‘Regurgitation’ of data on which the LLM models are trained, is a rare
glitch that is being actively addressed by Open AI. ANI has not been able to
identify any specific instance where ‘regurgitation’ of their works occurred.
Intervenors supporting OPEN AI
i. Submissions on behalf of the Intervenor – Indian Governance and Policy
Project (IGAP) (I.A. 4616/2025)
62. Mr. Akhil Sibal, senior counsel appearing on behalf of the intervenor
in I.A. 4616/2025 made the following submissions:
62.1. In Andrea Bartz v. Anthropic26, the US District Court emphasized that
what is relevant is not the amount of data used for making a copy, but the
amount and substantiality of what is made accessible to the public by the
secondary use. Since LLMs do not regurgitate an author’s work or produce
substantially similar works, it would not amount to copyright infringement.
62.2. An LLM model does not store the training data and memorization of
training data is a rare occurrence. Hence, the display at the output creation
stage is a result of manipulation of the system by the user alone.
ii. Submissions on behalf of the Intervenor – Broadband India Forum (BIF)
(I.A. 10766/2025)
63. Mr. Kapil Sibal and Mr. Arvind P. Datar, senior counsel appearing on
behalf of the intervenor in I.A. 10766/2025 made the following submissions:
63.1. Newspaper reports, including articles which are in the public domain
are not reproduced in the output in any material form by LLMs. If there is a
prompt on a particular event, the LLM is able to examine the voluminous26
Bartz v. Anthropic PBC, 3:24-cv-05417, (N.D. Cal.).
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information available in the public domain and prepare a unique response.
Therefore, there is no reproduction in any material form. The LLMs often
provide links to the sources that have been accessed.
63.2. Several newspapers, magazines, etc. have created ‘paywalls’ or
‘crawler blockers’ to prevent access to their contents. The data from these
websites is completely blocked and cannot be accessed. Preparing the
responses based on publicly available websites will not amount to violation
of Section 14(a)(i) of the Copyright Act, so long as there is no reproduction
in material form. LLMs do not reproduce the literary work in any material
form.
63.3. LLMs are not designed to materially reproduce any work or a
substantial part of it in their response to prompts. They merely understand the
ideas, concepts and the facts in those works, which can be used to generate
output. It does not amount to adaptation of copyrighted works.
iii. Submissions on behalf of the Intervenor – Flux Labs Pvt. Ltd. (I.A.
4615/2025)
64. Ms. Haripriya Padmanabhan, senior counsel appearing on behalf of
intervenor in I.A. 4615/2025 made the following submissions:
64.1. The examples given by ANI in the plaint do not show substantial
reproduction of copyrighted works of ANI.
64.2. Unlike any other customer of an AI platform, ANI gave a ‘direct
prompt’ to ChatGPT in the said examples. Yet, the responses given by
ChatGPT only summarised the interviews in its own words and referred to the
author in third person.
64.3. The AI platforms also provide a reference and do not claim that the
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information is theirs. Hence, the output/responses generated by AI platforms
cannot be stated to be a violation of copyright under Section 14(a)(i) of the
Copyright Act.
Submissions of Mr. Adarsh Ramanujan, Amicus Curiae
65. Mr. Ramanujan made the following submissions:
65.1. The issue whether Open AI’s LLMs underlying ChatGPT retain the full
‘raw data’ and reproduce duplicate or near duplicate extracts of the ‘raw data’
as alleged by ANI can be determined only after a full trial. However, ANI’s
submission in this regard does not appear to be prima facie tenable as the
function of an LLM is based on patterns and therefore, it would not make
sense for an LLM to store raw data on a permanent basis to generate responses
for a query.
65.2. In some instances, training of an LLM leads to memorization. This
tendency of verbatim memorization occurs when an LLM is trained on basic
facts or unique pieces of information, since the training data may not be
sufficiently large for the model to build a generalization. Hence, it is possible
that training of ChatGPT leads the underlying LLMs to memorize parts of
ANI’s works.
65.3. In the event memorization occurs, even if inadvertently, the
communication of the same to the public at the output stage would amount to
infringement.
65.4. The decision of the Supreme Court in R.G. Anand (supra), is the
leading judgment on the aspect of copyright infringement. In terms of
paragraph 46 of R.G. Anand (supra), the Supreme Court has clearly stated
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that “form, manner and arrangement and expression of the idea” would only
be entitled to copyright protection.
65.5. Retrieval Augmented Generation (RAG)27 is an aspect which has not
been pleaded in the plaint and has been raised only in the course of arguments.
Therefore, whether RAG involves infringement of ANI’s works should also
be a subject matter of a trial.
Submissions of Professor Arul George Scaria, Amicus Curiae
66. Prof. Scaria made the following submissions:
66.1. A reading of the judgment by the Supreme Court in Eastern Book
Company v. D.B. Modak (supra), highlights that India has explicitly
discarded the ‘sweat of the brow’ approach and adopted the ‘skill and
judgment’ standard. Therefore, the current legal standard of originality under
Indian copyright law is of a standard higher than the ‘sweat of the brow’
standard.
66.2. Taking into account the current standard of originality, substantial
chunk of news related materials might be outside copyright protection in
India. Therefore, issues such as existence of a copyright in favour of ANI and
the need for use of news material by LLMs to provide accurate responses can
only be determined in a trial.
66.3. The non-expressive use of copyrighted works by LLMs to provide
more optimal responses to any user prompts may not constitute copyright
infringement.
66.4. Since news is based on facts and when there are limited ways in which
27
As discussed in the Section: Working of LLMs.
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a fact can be expressed, in terms of ‘merger doctrine’ as discussed in
Syndicate of the Press of the University of Cambridge v. B.D. Bhandari28,
news should not get copyright protection or should get only a thin layer of
protection.
DISCUSSION AND ANALYSIS
67. Under the Copyright Act, copyright subsists only for the classes of
works enlisted under Section 13 of the Copyright Act. ANI claims that news
articles and interviews published on its digital platforms are “original literary
works” under Section 13(1)(a)29 of the Copyright Act. This position has not
been disputed by Open AI. However, Open AI submits that ANI is not the
owner of works published on its website in terms of Section 17 30 of the
Copyright Act.
68. To establish ownership of the works published on its website, ANI has
placed on record a sample ‘Professional Services Agreement’ in terms of
which copyright would vest with ANI in respect of original works, such as
images, video clippings, articles, reports, interviews, etc.
created/authored/obtained by personnel on behalf of ANI.
28
2011 SCC OnLine Del 3215.
29
13. Works in which copyright subsists.–(1) Subject to the provisions of this section and the other
provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to
say,–
(a) original literary, dramatic, musical and artistic works;
30
17. First owner of copyright.–Subject to the provisions of this Act, the author of a work shall be the first
owner of the copyright therein:
Provided that–
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by
the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship,
for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the
absence of any agreement to the contrary, be the first owner of the copyright in the work, in so far as the
copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the
reproduction of the work for the purpose of its being so published, but in all other respects the author shall
be the first owner of the copyright in the work;
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69. On a prima facie view, this Court is satisfied that there is an explicit
agreement between ANI and its professionals which recognises ANI as the
owner of the copyright subsisting in “original literary works” published on
its website in terms of Section 17 of the Copyright Act.
70. It is not disputed by Open AI that “original literary works” that are
available free of cost and publicly accessible are nevertheless entitled to
copyright protection. Therefore, for adjudicating present application this
Court is of the prima facie view that ANI, as an owner, would have copyright
over the “original literary works”, even if they are freely and publicly
available on its website. Any challenge to the ownership of individual works
which are subject matter of the present suit can be adjudicated at the stage of
trial.
71. As a copyright owner of the original literary works, ANI enjoys certain
exclusive rights under Section 14 of the Copyright Act, which include the
following:
(i) the exclusive right to reproduction of the work in terms of
Section (14)(a)(i) of the Copyright Act and,
(ii) the right to “communicate it to the public” in terms of Section
14(a)(iii) of the Copyright Act.
For the ease of reference, the relevant extracts from Section 14 are set out
below:
“14. Meaning of copyright.–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:– (a) in the case of a literary,
dramatic or musical work, not being a computer programme,–
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(i) to reproduce the work in any material form including the storing of
it in any medium by electronic means;
*** *** ***
(iii) to perform the work in public, or communicate it to the public;”
72. Section 2 (ff)31 of the Copyright Act defines “communication to the
public”.
73. Thus, the act of reproduction and communicating the work of ANI to
the public by a third party without license would amount to infringement as
per Section 5132 of the Copyright Act
74. It is the case of ANI that Open AI’s LLM model memorizes the content
of ANI’s articles and specific responses are generated by ChatGPT through
memorisation and the original literary works of ANI are communicated to the
public. This amounts to infringement under Section 51 of the Copyright Act.
31
(ff) “communication to the public” means making any work or performance available for being seen or
heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by
issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless
of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so
made available.
32
51. When copyright infringed.–Copyright in a work shall be deemed to be infringed–
(a) when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights
under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a
competent authority under this Act–
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the
copyright, or
(ii) permits for profit, any place to be used for the communication of the work to the public where such
communication constitutes an infringement of the copyright in the work, unless he was not aware and
had no reasonable ground for believing that such communication to the public would be an infringement
of copyright; or
(b) when any person–
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire,
or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of
the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India,
any infringing copies of the work:
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and
domestic use of the importer.
Explanation.–For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic
work in the form of a cinematograph film shall be deemed to be an “infringing copy”.
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75. Therefore, this Court would have to examine whether the responses
generated by ChatGPT would result in reproduction and communication of
the original literary works of ANI to the public without authorisation from
ANI and hence, would amount to infringement. More particularly, the Court
would have to examine the following two issues:
i. whether Open AI memorizes and regurgitates ANI’s copyrighted
literary works in the form of responses and,
ii. whether the ChatGPT’s responses are substantial reproduction of
ANI’s copyrighted literary works.
i. Whether Open AI memorizes and regurgitates ANI’s copyrighted
literary works in the form of responses?
76. It is contended on behalf of ANI and the intervenors supporting ANI
that LLM models underlying ChatGPT inherently memorize content and
retain copies of their training data which results in regurgitation. According
to ANI and intervenors, LLMs are capable of providing verbatim or near-
identical reproductions of the training data in response to user prompts,
thereby demonstrating that expressive elements of the copyrighted works are
also retained and reproduced.
77. Per contra, it has been highlighted on behalf of Open AI as well as
intervenors supporting Open AI that an LLM model is not designed to
reproduce extracts of the contents that form part of their training data. It was
also argued that the LLMs underlying ChatGPT are not trained to duplicate or
regurgitate the exact manner of presentation of content on which these models
have been trained. Based on a particular prompt, the LLM is able to prepare
a unique response based on the voluminous data on which it has been trained.
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Further, generative AI models also provide links to the sources that have been
accessed by them. In this regard, Open AI has highlighted that the same
prompts by different users would result in different responses from the
ChatGPT (document 10 in the defendant’s documents filed along with the
written statement).
78. Professor Scaria, one of the Amici Curiae, in his written submissions
has argued that in vast majority of cases there is minimal memorisation in the
working of LLMs and mostly memorisation occurs when specific attempts
are made to generate potential copyright infringing outputs. The relevant
extracts from the written submissions of Prof. Scaria are set out below:
“58. A couple of general observations may be added here. First, as the
technical literature suggests, though LLMs may be using copyrighted
training data to generate outputs, in most instances, they may not be
generating potentially copyright infringing responses. Scholars like
Prof. Matthew Sag points out that this is due to the different steps taken
during model training like the process of decomposition and
abstraction, blending of latent concepts, and noise injection [Sag,
2023]. However, in some instances, particularly due to the
memorisation problem discussed earlier as part of Issue II, there may
be outputs which are identical or similar to the input (copyrighted)
training data. This is seen mostly during the so-called “extraction
attacks”, wherein specific attempts are made to generate potentially
copyright infringing outputs. Some of the empirical studies suggest
that memorisation was seen in around 0.03% of sample images
during extraction attacks and they were successful mostly in instances
wherein the images were duplicated more than 100 times [Sag, 2023].
This also suggests that in the vast majority of use scenarios, the use
of copyrighted materials for generating responses are non-infringing,
because only non-expressive uses are made of the copyrighted
materials.”
[Emphasis supplied]
79. Mr. Adarsh Ramanujan in his written submissions has argued that
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ANI’s contention that Open AI retains the full raw data is prima facie
untenable as an LLM is merely a set of mathematical functions to connect
input to output. An LLM’s function is to predict based on patterns. The
chances of memorization of the raw data may increase when an LLM Model
is trained on basic facts or unique pieces of information. This tendency occurs
because there may be absence of general patterns leading to direct
reproduction at the time of output generation.
80. The US District Court for Northern District of California in Bartz v.
Anthropic (supra) examined the issue of memorization in LLMs and
regurgitation of responses from its training data and made the following
observations:
“Either way Meta added the books it downloaded to the datasets it used
to train the Llama models. It is also post-trained its models to prevent
them from “memorizing and outputting certain text from their training
data, including copyrighted material. These training efforts, which
Meta calls “mitigations,” appear to have been successful. Meta’s
expert witness tested them using a method designed to get LLMs to
regurgitate material from its training data (which Meta calls
“adversarial prompting”). Even using that method, the expert could
get no model to generate more than 50 words and punctuation marks
(that is, “tokens”) from the plaintiffs’ books. And the plaintiffs’ expert
could only get the Llama model best at regurgitation to generate 50
words and punctuation marks from the plaintiffs’ books in 60% of
tests. She also testified that Llama was not able to reproduce “any
significant percentage” of them. Meta MSJ Ex.24 at 237:16-19:see
also Pls Ex. 79, 70-72, 79, 82-83, 92:Meta MSJ Ex.23 at 179:22-25,
180:17-181:16. In short, Llama cannot currently be used to read or
other wise meaningfully access the plaintiffs’ books.”
[Emphasis supplied]
81. From the aforesaid observations, it appears that even the plaintiffs’
expert in the field of AI could only make the LLM Model regurgitate
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insignificant amounts from the copyrighted works of the plaintiffs.
82. ANI’s case is based on ‘memorisation’, whereby the LLM memorises
the training data verbatim or substantially. In the plaint, ANI has given nine
illustrations to demonstrate substantial reproduction. It is an undisputed
position that the training of the LLMs underlying ChatGPT ended in April
2022 (for GPT 4) or April 2024 (for GPT 4o), which was much prior to the
publication of the illustrative articles used in the plaint, to allege reproduction
of ANI’s copyrighted works. The table below illustrates this aspect:
TITLE(S) OF THE ARTICLE(S) DATE OF PUBLICATION
"My father was forced...": Omar 6th September 2024
Abdullah opens up on IC 814 hijack
incident, reveals difficult decisions
faced by his father
T20 World Cup: "Pakistan never a 30th September 2024
challenge in Women's cricket": Ex-
player Reema Malhotra backs India
"Lord Balaji will not forgive him 26th September 2024
even if he climbs up the seven hills
on his knees": TDP spokesperson
slams Jagan Mohan Reddy
"Connecting this to UP not right," 26th September 2024
Himachal AICC in-charge Rajeev
Shukla defends state govt on ID
cards for vendors
"It's gone underground...": JKPC 10th September 2024
chairman Sajad Gani Lone on
'Azadi' sentiments in Kashmir
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"Jinnah like mentality," Minister 17th September 2024
Hardeep Puri accuses Rahul Gandhi
of crossing limit for "political
interest"
Neeraj Chopra's mother celebrates 9th August 2024
Olympic Silver; praises Pakistan's
Arshad Nadeem for bagging Gold
"Ashwin best in India, Lyon better 23rd September 2024
overall": Monty Panesar sets-up best
Test spinner debate
83. Therefore, it is apparent that the illustrations of ChatGPT responses
relied upon in the plaint could not have been produced on account of training
of Open AI’s LLMs on the ANI’s literary works, as the literary works in
question were published only after the completion of the training process.
84. As discussed earlier under the Section ‘Working of LLMs’, it could be
inferred that when an LLM refers to information on which it was not trained,
it is using RAG technique. Using the RAG technique, LLMs retrieve relevant
information from external sources, in this case ANI’s website, before
generating a response. Relevant data retrieved from the website, which is
contextually aligned with the user’s prompt, is then generated as responses
grounded in the website’s data rather than relying solely on its pre-trained
knowledge. Therefore, responses that are not based on the trained data cannot
be used against Open AI in respect of claims based on memorisation. Such
allegations must be tested based on the identical or substantially similar
reproduction of the trained data. Therefore, this Court is of the prima facie
view that the instances given in the plaint alleging infringement are not a
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result of memorisation, rather they are in the nature of live links, perhaps
reflecting RAG technique. Whether outputs produced using RAG would
amount to copyright infringement is an aspect which has not been pleaded in
the plaint, though it was referred during the course of submissions.
ii. Whether ChatGPT’s responses are substantial reproduction of ANI’s
copyrighted literary works?
85. To begin with, it may be relevant to discuss legal principles regarding
copyright infringement elucidated in some of the instructive judgments of the
Supreme Court that have been relied upon by both sides.
86. In R.G. Anand (supra), the plaintiff sued the defendants for damages
claiming infringement of the copyright of the plaintiff in a dramatic play,
which was made into a motion picture by the defendants. The Supreme Court
held that an idea, principle, theme or facts cannot be subject matter of
copyright protection. Where two writers write on the same subject, similarities
are bound to occur because the central idea of both are the same. Therefore,
the Court has to determine whether the defendant has only adopted the idea
of the copyrighted work or has also adopted the form, manner, arrangement
and expression of an idea with minor changes. If the defendant’s work appears
to be a transparent rephrasing or a copy of the substantial and material part of
the original, it would amount to copyright infringement. The Supreme Court
in paragraph 46 of the judgment has laid down the following principles to
determine infringement of copyright, which are set out below:
“46. Thus, on a careful consideration and elucidation of the various
authorities and the case law on the subject discussed above, the
following propositions emerge:
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1. There can be no copyright in an idea, subject-matter, themes, plots
or historical or legendary facts and violation of the copyright in such
cases is confined to the form, manner and arrangement and
expression of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it is
manifest that the source being common, similarities are bound to
occur. In such a case the courts should determine whether or not the
similarities are on fundamental or substantial aspects of the mode of
expression adopted in the copyrighted work. If the defendant’s work
is nothing but a literal imitation of the copyrighted work with some
variations here and there it would amount to violation of the
copyright. In other words, in order to be actionable the copy must be
a substantial and material one which at once leads to the conclusion
that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not
there has been a violation of copyright is to see if the reader, spectator
or the viewer after having read or seen both the works is clearly of the
opinion and gets an unmistakable impression that the subsequent
work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently
so that the subsequent work becomes a completely new work, no
question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two
works there are also material and broad dissimilarities which negative
the intention to copy the original and the coincidences appearing in the
two works are clearly incidental no infringement of the copyright comes
into existence.
6. As a violation of copyright amounts to an act of piracy it must be
proved by clear and cogent evidence after applying the various tests
laid down by the case-law discussed above.
7. Where however the question is of the violation of the copyright of
stage play by a film producer or a director the task of the plaintiff
becomes more difficult to prove piracy. It is manifest that unlike a stage
play a film has a much broader prospective, wider field and a bigger
background where the defendants can by introducing a variety of
incidents give a colour and complexion different from the manner in
which the copyrighted work has expressed the idea. Even so, if the
viewer after seeing the film gets a totality of impression that the film
is by and large a copy of the original play, violation of the copyright
may be said to be proved.”
[Emphasis supplied]
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87. In Eastern Book Company v. D.B. Modak (supra), the
appellants/plaintiffs filed a suit along with an application for temporary
injunction seeking to restrain the respondents/defendants from reproducing
the plaintiffs’ version of copy-edited judgments and orders of the Supreme
Court on CD-ROMs. The defendants were selling software packages on CD-
ROMs with the text of the copy-edited judgments of the Supreme Court along
with headnotes prepared by the plaintiffs for its own law report, ‘SCC’. The
Supreme Court, relying upon the judgment of the Supreme Court of Canada
in CCH Canadian v. Law Society of Upper Canada33 held that ‘sweat of the
brow’ approach to originality is not the correct standard as it fails to protect
the public interest in production and dissemination of works. On the other
hand, the creativity standard of originality as applied by the US Courts, is a
standard of originality with a higher threshold. The underlying impetus for
this modification was the need to balance the rights of the copyright owner
with the public interest.
88. In paragraph 15 of the Eastern Book Company v. D.B. Modak (supra),
it was specifically observed that for a literary work to be original and to claim
copyright, it should possess some amount of creativity in the work, more than
mere facts. For ease of reference, the aforesaid paragraph is set out below:
“15. Copyright is a right to stop others from exploiting the work
without the consent or assent of the owner of the copyright. A copyright
law presents a balance between the interests and rights of the author
and that of the public in protecting the public domain, or to claim the
copyright and protect it under the copyright statute. One of the key
requirements is that of originality which contributes, and has a direct
nexus, in maintaining the interests of the author as well as that of33
(2004) 1 R.C.S. 339.
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public in protecting the matters in public domain. It is a well-accepted
principle of copyright law that there is no copyright in the facts per
se, as the facts are not created nor have they originated with the
author of any work which embodies these facts. The issue of copyright
is closely connected to that of commercial viability, and commercial
consequences and implications.”
[Emphasis supplied]
89. Accordingly, the Supreme Court laid down the ‘skill and judgment test’
as opposed to ‘sweat of the brow’ test that was applied earlier in India. In terms
of the ‘skill and judgment test’, the author of a derivative work has to satisfy
that the work has been produced from exercise of skill and judgment and, the
skill and judgment should not be of a trivial nature. It was observed that the
‘sweat of the brow’ doctrine creates a monopoly in materials available in
public domain without encouraging the creation of writings by the authors. In
this regard, the relevant paragraph of the Eastern Book Company v. D.B.
Modak (supra) is set out below:
“57. The Copyright Act is not concerned with the original idea but
with the expression of thought. Copyright has nothing to do with
originality or literary merit. Copyrighted material is that what is
created by the author by his own skill, labour and investment of
capital, maybe it is a derivative work which gives a flavour of
creativity. The copyright work which comes into being should be
original in the sense that by virtue of selection, coordination or
arrangement of pre-existing data contained in the work, a work
somewhat different in character is produced by the author. On the face
of the provisions of the Copyright Act, 1957, we think that the principle
laid down by the Canadian Court would be applicable in copyright of
the judgments of the Apex Court. We make it clear that the decision of
ours would be confined to the judgments of the courts which are in the
public domain as by virtue of Section 52 of the Act there is no copyright
in the original text of the judgments. To claim copyright in a
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his skill and judgment which may not be creativity in the sense that it
is novel or non-obvious, but at the same time it is not a product of
merely labour and capital. The derivative work produced by the
author must have some distinguishable features and flavour to raw
text of the judgments delivered by the court. The trivial variation or
inputs put in the judgment would not satisfy the test of copyright of
an author.”
[Emphasis supplied]
90. The legal position that emerges from Eastern Book Company v. D.B.
Modak (supra) is that the work which is produced by the author by using his
skill and judgement with a flavour of creativity is copyrightable. The
protection would be only in respect of creative and original works. There
cannot be any copyright protection in respect of facts even if someone has put
in effort to obtain those facts.
91. In Feist Publications (supra), the US Supreme Court laid down the test
of ‘modicum of creativity’. In this case, a telephone utility company brought
a copyright infringement action against the publisher of a telephone directory.
The US Supreme Court held that no one can claim originality as to the facts.
A person who reports a particular fact has not created the said fact but has
only discovered its existence. The relevant paragraphs of Feist Publications
(supra) are set out below:
“[15] It is this bedrock principle of copyright that mandates the law’s
seemingly disparate treatment of facts and factual compilations. “No
one may claim originality as to facts.” Id., § 2.11[A], p. 2-157. This is
because facts do not owe their origin to an act of authorship. The
distinction is one between creation and discovery : the first person to
find and report a particular fact has not created the fact; he or she
has merely discovered its existence. To borrow from Burrow-Giles, one
who discovers a fact is not its “maker” or “originator.” 111 U.S., at 58.
“The discoverer merely finds and records.” Nimmer § 2.03[E]. Census-
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takers, for example, do not “create” the population figures that emerge
from their efforts; in a sense, they copy these figures from the world
around them. Denicola, Copyright in Collections of Facts : A Theory
for the Protection of Nonfiction Literary Works, 81 Colum. L. Rev. 516,
525 (1981) (hereinafter Denicola). Census data therefore do not
trigger copyright because these data are not “original” in the
constitutional sense. Nimmer [p*348] § 2.03 [E]. The same is true of
all facts — scientific, historical, biographical, and news of the day.
“They may not be copyrighted and are part of the public domain
available to every person.” Miller, supra, at 1369.
*** *** ***
[18] This inevitably means that the copyright in a factual compilation
is thin. Notwithstanding a valid copyright, a subsequent compiler
remains free to use the facts contained in an another’s publication to
aid in preparing a competing work, so long as the competing work does
not feature the same selection and arrangement. As one commentator
explains it:”No matter how much original authorship the work
displays, the facts and ideas it exposes are free for the taking…. The
very same facts and ideas may be divorced from the context imposed
by the author, and restated or reshuffled by second comers, even if the
author was the first to discover the facts or to propose the ideas.”
“Ginsburg 1868.”
[Emphasis supplied]
92. ANI has relied upon judgment of the House of Lords in Walter v.
Lane34 delivered in 1900, to show that it has copyright in respect of the news
circulated by its platform. In Walter v. Lane (supra), the issue before the
House of Lords was whether a person who makes notes of speech delivered
in public, transcribes the same and publishes in the newspaper would be
entitled to copyright protection. The House of Lords held that each of the
reporters reporting the speech would have a copyright in his own published
report. The House of Lords came to this conclusion based on the doctrine of
34
[1900] AC 539.
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‘sweat of the brow’ and it was premised on the principle that an author should
be able to reap the benefits of its labour.
93. On behalf of Open AI, the aforesaid judgment is sought to be
distinguished as it was in the context of copyright laws that existed in England
in 1842. The then copyright laws in England did not require originality.
94. Walter v. Lane (supra) was considered by the Supreme Court in
Eastern Book Company v. D.B. Modak (supra), as the appellant therein relied
upon the same, and it was held that the doctrine of ‘sweat of the brow’ does
not hold good anymore as it gives more weight to the copyright owner’s right
as opposed to the public interest.
95. In B.D. Bhandari (supra), the Division Bench delved on the ‘merger
doctrine’ and noted that when there is limited manner in which a fact can be
expressed, the facts would merge with the expression. The facts and the
expression would become so intrinsically connected that it would be difficult
to distinguish one from another, making the expression itself non-
copyrightable. For ease of reference, the relevant paragraphs of B.D.
Bhandari (supra) are set out below:
“106. While answering the first question, the learned Single Judge
expanded the “the Idea-Expression Dichotomy and the Doctrine of
Merger” and noted that there is no copyright protection on ideas and
facts and it is only the creative expression of such ideas and facts that is
rewarded by law. In the process, expression “originality” in artistic,
literary, dramatic and musical works were also explained holding that
with the passage of time, doctrine of “sweat of the brow” had given way
to the “modicum of creativity” and therefore, in order to have a copyright
in a work, it was necessary to show that it involves a certain degree of
creativity.
107. The learned Single Judge also deemed it proper to refer to the
“doctrine of merger”, peculiar to copyright law in the following manner:
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“18. An aspect peculiar to copyright law, is the doctrine of
merger, is involved in this case. This doctrine posits that where
the idea and expression are intrinsically connected, and that
the expression is indistinguishable from the idea, copyright
protection cannot be granted. Applying this doctrine courts
have refused to protect the expression of an idea that can be
expressed only one manner, or in a very restricted manner,
because doing so would confer monopoly on the idea itself. The
decision in Herbert Rosenthal Jewelry
Corporation v. Kalpakian, 446 F.2d 738 (1971) is illustrative in
this regard. In that case the plaintiffs sued the defendants asking
them to refrain from manufacturing bee shaped jewel pins. The
Court held that the jewel shaped bee pin was a an idea that
anyone was free to copy, the expression of which could be
possible only in a few ways, therefore, no copyright could subsist
in it.”
[Emphasis supplied]
96. In Akuate Internet Services v. Star India35, Star India was granted
exclusive broadcasting rights for a cricket match organised by BCCI including
mobile distribution rights. The defendants/appellants were disseminating
match information/score alerts without obtaining a license from the Star India
(plaintiff/respondent). In the said case, the plaintiff was seeking copyright
protection over facts that were available in public domain. The Division
Bench of this Court held that there cannot be any copyright protection over
facts and information that is available in public.
97. From a reading of the aforesaid judicial precedents, it is clear that there
cannot be any copyright in facts. Therefore, in the context of news, copyright
would subsist only in the form and manner of expression of news and not on
the underlying facts. What has to be seen is whether the expression used by
35
2013 SCC OnLine Del 3344.
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Open AI in its ChatGPT responses is materially similar to the expression used
by ANI in its news articles resulting in reproduction and making the work
available to the public in terms of Sections 14(a)(i) and 14(a)(iii) of the
Copyright Act. ANI cannot claim any copyright in the facts underlying the
news articles.
98. ANI has given nine instances of substantial reproduction of ANI’s
works by Open AI (paragraph 33.1 to 33.9 of the plaint). ANI claims that the
aforesaid nine instances have been given only as an illustration and there are
many more instances of copyright infringement by Open AI. All the nine
instances given in the plaint are in respect of news/interviews which were
originally published by ANI.
99. During oral submissions, ANI had highlighted the similarities between
the works of ANI and the response produced by ChatGPT in paragraph 33.7
of the plaint, which dealt with an interview of the mother of Neeraj Chopra
who had secured a silver medal at the Olympics, 2024 in Men’s Javelin Throw.
Admittedly, the said interview was given in Hindi and was translated into
English by ANI for reporting. A comparison given by ANI in paragraph 33.7
of the plaint is set out below:
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*The colour highlighting has been done for ease of comparison
100. As per ANI, the response produced by ChatGPT shows that ChatGPT
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has produced exact or nearly exact copy of ANI’s news article. The original
interview and responses were in Hindi which were translated into English by
ANI. Open AI has also infringed ANI’s exclusive rights to translate the works
for which ANI invested significant time and effort.
101. What emerges from a reading of the aforesaid extracts is that ChatGPT
generated this output in response to two different prompts. The first prompt
was:
“Prompt: What did Neeraj Chopra’s mother tell the media about the
Pakistani gold medallist?”
102. A comparison of the response given by ChatGPT to the first prompt as
highlighted above (in blue) with what was reported by ANI as highlighted
above (in orange) shows that the response given by ChatGPT was not a
substantial reproduction or nearly exact copy, though the essence of the
response is similar as it based on facts i.e. a particular interview of Neeraj
Chopra’s mother. ChatGPT has added its own commentary to the news article
published by ANI, which bears its own expression and is quite dissimilar to
the expression used in ANI’s article.
103. Realising that the response was not a substantial reproduction, ANI
gave another prompt in the following terms:
“Prompt : Please try to tell me exactly what she said”
104. To be noted, in the second prompt, ANI used the word ‘exactly’, which
clearly shows that ANI was seeking to elicit a response from ChatGPT in
exact terms i.e. an adversarial prompt (“carefully designed inputs that
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manipulate model outputs”36). In other words, deliberately a prompt is being
put in a manner so as to elicit a specific response to show that ChatGPT has
substantially reproduced ANI’s works.
105. Upon the said prompt, ChatGPT came out with a quote of what was
stated by Neeraj Chopra’s mother as highlighted above (in orange). The only
similarity which emerges from the aforesaid comparison is relating to a part
of a quote from Neeraj Chopra’s mother in the interview. However,
ChatGPT’s response has given its own context to the aforesaid quotes from
Neeraj Chopra’s mother’s interview. In addition, a subsequent paragraph was
added (as highlighted in green) completely on its own by ChatGPT to explain
the quoted text which was not a part of ANI’s news report.
106. In the present case, ANI has only demonstrated that Open AI has
extracted a quote from an interview accompanied by its own commentary.
According to Section 17(cc)37 of the Copyright Act, the author of an address
or speech made in public is the person who made it. The news article gives
the quote of what was said by the Neeraj Chopra’s mother in the video.
Applying the underlying principle of Section 17(cc) of the Copyright Act to
the facts of the present case, in the prima facie view of this Court, Neeraj
36
Ahmet Emre Ergün, Aytuğ Onan, Adversarial Prompt Detection in Large Language Models: A
Classification-Driven Approach, Computers, Materials and Continua, Volume 83, Issue 3, 2025, Pages 4855-
4877 ISSN 1546-2218, https://doi.org/10.32604/cmc.2025.063826.
(https://www.sciencedirect.com/science/article/pii/S1546221825004898).
37
17. First owner of copyright.–Subject to the provisions of this Act, the author of a work shall be the first
owner of the copyright therein:
Provided that–
… … …
(cc) in the case of any address or speech delivered in public, the person who has delivered such address or
speech or if such person has delivered such address or speech on behalf of any other person, such other
person shall be the first owner of the copyright therein notwithstanding that the person who delivers such
address or speech, or, as the case may be, the person on whose behalf such address or speech is
delivered, is employed by any other person who arranges such address or speech or on whose behalf
or premises such address or speech is delivered;
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Chopra’s mother would be first owner of the copyright in the said quotation.
Similarly, in terms of Section 14(a)(vii) of the Copyright Act, the right to
translate would also vest with Neeraj Chopra’s mother. There is nothing
produced by ANI to show that Neeraj Chopra’s mother has assigned this
ownership in favour of ANI. Therefore, in the prima facie opinion of this
Court, the reproduction of quotes of Neeraj Chopra’s mother by ChatGPT in
its responses would not amount to infringement of ANI’s copyright.
107. Pertinently, the original article of ANI (page 54, document no.11 in the
plaintiff’s documents filed along with the plaint) with which the comparison
has been made, was much longer than the text which was quoted in paragraph
33.7 of the plaint for the purposes of comparison. The response given by
ChatGPT does not reproduce the remaining text which is a part of the original
article.
108. In R.G. Anand (supra), the Supreme Court has held that if a comparison
has to be made between two works it should be made for the works as a whole
and not selected parts of the works.
109. In this regard, Open AI has relied upon the judgment of Bombay High
Court in Leo Burnett (supra). In the said judgment, the Bombay High Court
held that a work in which the plaintiff’s claim copyright has to be compared
as a whole and not in parts in order to determine substantial copying. It is not
permissible to split or dissect the plaintiff’s work into parts and then compare
the same with the allegedly infringing work. Paragraph 26 of the said
judgment is set out below:
“26. The issue then is whether if the whole of the respective works is
compared and not only parts, factually or materially as it stands, is
there copying or substantial copying. I am not at this stage also not
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have to be considered in totality. Even for arguments sake if an episode
is considered as a ‘work’, still what is to be compared is the whole
work as a single entity. It is not permissible to split or
compartmentalize or dissect the plaintiffs’ work into parts, then seek
to compare such parts against the alleged infringed work. What is to
be seen is the entirety of each work. It may be made clear that I am
not considering an issue whether a particular part of the film or a
scene in the film which may have a striking resemblance, if copied,
would amount to a substantial copying of the film. For this purpose
reference may be made to the decision in (Francis Day and Hunter
Limited v. Twentieth Century Fox Corporation Limited), 1940 A.C. 112
(Privy Council); (Ladbroke (Football) Limited v. William Hill
(Football) Limited), 1964 (1) W.L.R. 273; (Merchandising Corporation
of America Inc. v. Harpbond Limited), 1983 F.S.R. 32; R.G. Anand v.
Delux Films supra and (Fritco Lay Limited v. Uncle Chips Private
Limited), 2000 P.T.C. 341. Applying the tests on the material as it stands
there is no substantial copying on facts.”
[Emphasis supplied]
110. The aforesaid findings have been followed by Coordinate Bench of this
Court in Bikramjeet Singh (supra), wherein it was observed that rival works
have to be compared as a whole and as a single entity. It is not possible to split
or dissect the works into parts and then compare them.
111. During the course of oral submissions, ANI has not addressed on any
of the other illustrations in paragraph 33 of the plaint. Hence, I do not propose
to examine the same. Counsel on behalf of Open AI during the course of
submissions has handed over a note to highlight that in none of the instances
cited by ANI in paragraph 33 of the plaint, ChatGPT has given responses
identical or substantially similar to ANI’s articles.
111.1. The said note has been taken on record.
111.2. The contents of the said note have not been rebutted on behalf of ANI.
112. In paragraph 33.9 of the plaint, ANI has stated that on a specific prompt
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about the latest news published by ANI, ChatGPT has provided updates from
ANI’s website. For the sake of convenience, the screenshot of the specific
prompt which has been given in paragraph 33.9 of the plaint has been
transcribed below:
“Prompt – “Give me the latest news updates from ANI News.in
Response – Here are some of the latest news updates from ANI News:
1. In a legal development, AAP leader Durgesh Pathak has been
granted bail by the Rouse Avenue court (ANI News).
2. Indian stock markets saw a positive opening, buoyed by a global
rally after U.S. inflation data indicated easing in August (ANI
News).
3. The Union Cabinet has approved Phase 3 of the Bangalore
Metro Rail Project, which will include two elevated corridors
covering 44.65 km with 31 stations (ANI News).
4. Wrestler Bajrang Punia has moved a petition to the Delhi High
Court, leading to a notice being issued to the National Anti-
doping Agency (ANI News).”
For more detailed updates, you can visit ANI News.”
113. ANI has also filed the corresponding news stories from its website
(pages 32 to 46 in the documents filed by the plaintiff). The table below gives
a comparison of the title of ANI’s articles and the news updates generated by
ChatGPT based on the prompt set out above.
TITLE(S) OF ARTICLE(S) PUBLISHED NEWS UPDATES GENERATED BY
BY ANI CHATGPT
Excise Police case: Delhi Court In a legal development, AAP leader
grants bail to Durgesh Pathak, Durgesh Pathak has been granted
Arvind Kejriwal's custody extended bail by the Rouse Avenue Court
till September 25 (ANI News).
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Indian indices opened in green after Indian stock markets saw a positive
ease in US inflation opening, buoyed by a global rally
after U.S. inflation data indicated
easing in August (ANI News).
Cabinet approves two corridors of The Union Cabinet has approved
Bangalore Metro Rail Project Phase- Phase 3 of the Bangalore Metro Rail
3 project for 44.65 km with 31 Project, which will include two
stations elevated corridors covering 44.65
km with 31 stations (ANI News).
Delhi HC issues notice to NADA on Wrestler Bajrang Punia has moved a
Bajrang Punia’s plea challenging his petition to the Delhi High Court
suspension leading to a notice being issued to
the National Anti-Doping Agency
(ANI News).
114. A comparison above shows that even the titles in the response generated
by ChatGPT are substantially different from the titles of the articles on ANI’s
website.
115. Applying the test for infringement laid down in R.G. Anand (supra), in
my prima facie view, when the articles of ANI are compared with the
responses generated by ChatGPT as a whole, there is no substantial similarity.
116. Now, I shall proceed to deal with the judgments relied upon by ANI.
117. In GEMA v. Open AI (supra), the plaintiff claimed copyright
infringement in respect of German song lyrics that were memorised and
reproduced by the LLMs underlying ChatGPT. The Munich Regional Court
observed that the plaintiff therein had expressly excluded the ‘online search
function’ and in those circumstances a finding of fact was given by the Court
that memorisation had occurred as exact song lyrics were reproduced on the
basis of non-adversarial prompts. The defendant therein (Open AI) was held
to be liable for generating outputs that are identical/substantially similar to the
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copyrighted lyrics.
118. In GEMA v. Open AI (supra), the Court found that there were repeated
verbatim reproduction of lyrics by ChatGPT despite non-adversarial prompts.
In that context, the Court held that there was memorisation.
119. As noted above, in the present case, the training was completed before
the illustrative articles in the plaint were published by ANI and therefore, there
cannot be any question of memorization. Secondly, the Munich Court noted
that the responses generated were based on non-adversarial prompts given by
the user. In the present case, ANI has given fairly detailed, repeated prompts
and has even used the term ‘exactly’, to extract copyrighted contents from the
LLM models underlying ChatGPT, which cannot be termed as non-
adversarial. Even after giving such adversarial prompts, ANI was not able to
eke out a response which can be termed as ‘substantial’ reproduction of its
copyrighted material.
120. In Associated Press v. Meltwater (supra), the defendant-Meltwater was
a news-monitoring agency which scraped the articles published by the
plaintiff-Associated Press using web crawlers and provided excerpts from
these articles to its subscribers through emails or through online account on
Meltwater’s website. This was not a case of data being scraped by an LLM.
The Court in Associated Press v. Meltwater (supra) specifically held that
there were 33 articles which were reproduced verbatim by the defendant. In
the present case, as noted above, there is no substantial reproduction of ANI’s
works.
121. In Cohere (supra), the plaintiffs, publishers of news and magazines in
the USA, claimed that the defendant’s LLM Models were using the
copyrighted works of the plaintiffs for training and were
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reproducing/delivering verbatim copies of the plaintiffs’ works using the
RAG function. This judgment was in the context of motion to dismiss, which
is similar to Order VII Rule 11 of the CPC in India. In the said case, the
plaintiffs had given 75 instances of copying, out of which, 50 were alleged to
be verbatim. Hence, the motion to dismiss was denied.
122. ANI has also placed reliance on the judgment of the United States Court
of Appeal for the Fifth Circuit in Positive Black Talk v. Cash Money
Records38 in support of its submission that copyright infringement is made
out if there is ‘probative similarity’ between the plaintiff’s work and the work
of the defendant. However, this decision was in the context of copyright
infringement in respect of a song and hence, the observations made by the
Court were specific to the said factual background. The application of a
standard for determining whether there is copyright infringement in respect
of a song would be quite different from its application in the context of news.
The creativity involved in writing lyrics of a song would ordinarily not be
present to the same extent in a news article as the fundamental purpose of a
news article is to report events that have actually occurred. Therefore,
threshold of establishing substantial similarity in expression would be higher
in the case of news. Therefore, this judgment would not be of much assistance
to ANI in the present case.
123. The judgments cited on behalf of ANI and the intervenor-DNPA,
Infopaq International v. Danke Dagblades Forening39 and Newspaper
Licensing Agency v. Meltwater Holding40, would have little relevance in the
38
394 F.3d 357, 368 (5th Cir. 2004).
39
ECLI:EU:C:2009:465.
40
[2010] EWHC 3099 (Ch).
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present case. In both the aforesaid judgments, it was held that the defendants
were providing verbatim extracts of the plaintiff’s works. In Meltwater
(supra), it was held that the defendants have produced extracts and headlines
of news articles of the plaintiff therein and had accordingly infringed the
copyright in the news articles. Same was the position in Infopaq (supra)
where the defendant had copied extracts of news articles of the plaintiff. In
the present case, as noted above, there is no substantial reproduction of ANI’s
works.
FINDINGS
124. As highlighted above, the illustrations given in the plaint are post the
training of Open AI’s LLMs and a case for memorization of ANI’s works on
the basis of the said illustrations cannot be made out. Therefore, at this prima
facie stage, the contention of ANI that Open AI permanently stores the
training data in order to memorize and regurgitate ANI’s works cannot be
accepted. At best, these are disputed questions which can only be determined
during trial upon parties leading evidence.
125. Based on discussion above it cannot be concluded that the responses
produced by ChatGPT are a substantial reproduction of the news articles of
ANI. Hence, at a prima facie stage, ANI has failed to make out a case of
copyright infringement based on the responses generated by ChatGPT i.e. the
output claim.
126. As noted earlier, Issue nos. 1 and 3 are intertwined and have to be
considered together. Hence, I now proceed to deal with Issue nos. 1 and 3.
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Issue No.1 Whether the storage by the defendants of plaintiff’s data
(which is in the nature of news and is claimed to be
protected under the Copyright Act, 1957) for training its
software i.e. ChatGPT, would amount to infringement of
plaintiff’s copyright
SUBMISSIONS
Submissions on behalf of the Plaintiff (ANI)
127. Mr. Sidhant Kumar, counsel appearing on behalf of ANI made the
following submissions:
127.1. Open AI collects and stores the ‘raw data’ as a repository of ANI’s
works in their original form. The ‘raw data’ is processed further and filtered.
The process of filtration is impossible without storage of the copyrighted
works of ANI.
127.2. Tokenisation of raw data is nothing but numerical representation of
raw data which belongs to ANI. A token may constitute an individual
character, whole words or even parts of words. The LLM decodes these tokens
and reconstructs the raw data to generate responses.
127.3. In the second step, the tokens are encoded into vectors, which are
thereafter stored in the memory of the LLM to create a vector database. Even
if it is assumed that the vector database is an adaptation, such reproduction in
adapted form also results in infringement of copyrighted works in terms of
Section 2(a)(v) of the Copyright Act.
127.4. Training of LLM inherently involves storage and reproduction of
original works. The entire processes undertaken by Open AI including storage
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of data, tokenisation, vectorisation amounts to copyright violation in terms of
Section 51 read with Section 14 of the Copyright Act.
127.5. What Open AI uses in training is only the expression used by ANI and
not the actual facts that occurred. Therefore, training occurs in respect of
expression of language.
127.6. Once the training data is fed into Open AI’s LLM during the training
process, it cannot be removed and continues to be reflected in the outputs
generated by the LLM.
Intervenors supporting ANI
i. Submission on behalf of Intervenor – Indian Music Industry (I.A.
4027/2025)
128. Mr. C.M. Lall, senior counsel appearing on behalf of intervenors in I.A.
4027/2025 made the following submissions:
128.1. The right to reproduce a work under Section 14(a)(i) of the Copyright
Act includes the right to store the work. Therefore, scraping, collection,
coalition and processing of data for training purposes constitutes
infringement.
128.2. Just because copyrighted works are available on online
resources/websites would not mean that these works can be
copied/reproduced without a license or authorization.
128.3. Regardless of the purpose of the activity, storage of substantial part of
copyrighted work amounts to infringement.
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ii. Written Submissions filed by Mr. Ankit Sahni, Advocate on behalf of
Intervenor – Federation of Indian Publishers (I.A. 470/2025)
129. Open AI admits that collection and compilation of raw data into
training data sets involves creation of copies of the training data. The various
activities carried out by Open AI makes it clear that Open AI not only collects
data, it also stores the same for training its LLM.
129.1. Open AI’s act of copying/storing copyrighted works for purposes of
text and data mining/text and data analysis amounts to infringement since
there is no specific provision in the Copyright Act creating an exception for
the same.
iii. Submissions on behalf of Intervenors – Digital News Publishers
Association & Ors. (I.A. 2199/2025)
130. Mr. Rajshekhar Rao, senior counsel appearing on behalf of intervenors
in I.A. 2199/2025 made the following submissions:
130.1. By using the words “any medium” and “any material form”,
Parliament has made it clear that Section 14(a)(i) of the Copyright Act must
not be diluted. Merely because protected content is not perceivable by naked
eye or meant for human consumption would not take it outside the ambit of
Section 14 of the Copyright Act. There is no requirement in Indian copyright
law for the copyrighted works to be stored in a tangible medium. Therefore,
storage of literary works in digital formats and their reproduction in the shape
of vectors/tokens would fall within the sweep of the expression
“reproduction/storage” in “any medium” or in “any material form”.
130.2. The scheme of the Copyright Act does not distinguish between
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defendant in Richard Kadrey v. Meta Platforms41 was rejected by the United
States District Court. Even in Bartz v. Anthropic (supra), it was noted that
“literary works were chosen for their expressive qualities in building a central
library and then in training specific LLMs”.
130.3. Even the intermediate step of introducing and storing data for training
cannot be said to be non-infringing as substantial portions of copyrighted
works are extracted. Once again, this view finds support from the judgment
in Richard Kadrey v. Meta Platforms (supra).
Submissions of the Defendant (OPEN AI)
131. Mr. Amit Sibal, senior counsel appearing on behalf of Open AI made
the following submissions:
131.1. It is an admitted position that storage of data takes place only for the
purposes of training. Creation of copy during the training process is an
intermediate step. Once the training process is over, an LLM does not have
access to data.
131.2. Purposive interpretation should be given by the Courts to the
provisions of Copyright Act. Accordingly, it is submitted that Section 14 (a)(i)
of the Copyright Act should not be interpreted in a literal manner. In this
regard, reliance is placed on:
i. Shailesh Dhairyawan v. Mohan Balkrishna Lulla42;
ii. State of Maharashtra v. Praful B. Desai43.
41
Kadrey v. Meta Platforms, Inc., 3:23-cv-03417, (N.D. Cal.).
42
(2016) 3 SCC 619.
43
(2003) 4 SCC 601.
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131.3. Training is not based on ANI’s data alone. ANI’s data along with other
data is put in database. ANI’s data would only be a miniscule amount of the
total data on which training takes place.
131.4. For the purposes of training, Open AI uses the non-expressive
elements of literary works of ANI such as grammar, syntax or linguistic
patterns.
131.5. The training process is unconcerned with each work’s unique
expression. The LLMs underlying ChatGPT encode the learnt meanings in the
form of a ‘vector database’ during the pre-training process, which is
equivalent to a dictionary and does not amount to additional copies of raw
data. Hence, it is incorrect to state that ‘vectorization’ is an ‘adaptation’ or
‘translation’ of ANI’s works.
131.6. The storage is not intended for human consumption or
comprehension. Storage is only an intermediate step to derive the non-
expressive element.
Intervenors supporting OPEN AI
i. Submissions on behalf of Intervenor – Broadband India Forum (I.A.
10766/2025)
132. Mr. Kapil Sibal and Mr. Arvind P. Datar, senior counsel appearing on
behalf of the intervenor in I.A. 10766/2025 made the following submissions:
132.1. Any storage of copyrighted works for training LLMs should be
protected in line with the statutory intent of making and enabling new
technologies. The storage of works is incidental i.e. training of LLMs and
LLMs themselves do not store the works.
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ii. Submission on behalf of Intervenor – Flux Labs AI Private Ltd. (I.A.
4615/2025)
133. Ms. Haripriya Padmanabhan, senior counsel appearing on behalf of
intervenor in I.A. 4615/2025 made the following submissions:
133.1. The purpose of copyright law is that the work ought not to be
circulated in public. Taking this purpose into consideration, the reference to
“storage” in Section 14(a)(i) of the Copyright Act has to be in the context of
reproduction of the work. Mere storage of the work would not amount to
copyright infringement.
Submissions of Professor Arul George Scaria, Amicus Curiae
134. Prof. Scaria made the following submissions:
134.1. In the present case, the use of copyrighted works by Open AI is ‘non-
expressive use’, hence, it would not amount to infringement. The training data
is used by Open AI only to extract vital information such as patterns, trend
and correlations in phrases and sentences.
134.2. The Court has to consider whether it is feasible to develop an LLM
without giving access to copyrighted material as the strength of the LLM
depends upon the extent to which materials are available for training.
134.3. The Court must consider if all companies developing LLMs have to
obtain licenses from every copyright holder, it will cause practical difficulties.
It will also hinder the development of LLMs by small domestic entities.
134.4. The expression “storage” used in Section 14(a)(i) of the Copyright
Act is only in the context of “reproduction” and not storage in an independent
manner. Therefore, if there is no reproduction, there cannot be any
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infringement on the basis of storage alone. There is no independent right of
storage available to the copyright owner.
Submissions of Mr. Adarsh Ramanujan, Amicus Curiae
135. Mr. Adarsh Ramanujan made the following submissions:
135.1. In terms of Section 14 (a)(i) of the Copyright Act, collection of data
and storage of the same would amount to reproduction. Therefore,
infringement occurs when Open AI stores the data of ANI. Even if there is a
one-time storage, it would result in infringement.
135.2. It is likely that while building its corpus of ‘raw data’, Open AI has
used and copied ANI’s publicly available works. Even if stored ‘raw data’ is
deleted after the training is complete, it does not change the fact that storage
has occurred in the first place.
135.3. Reproduction of ANI’s works during the training process either in the
original text form or as a collection of numerical tokens, on a prima facie
view, constitutes copyright infringement. Such temporary copies of
copyrighted works do not qualify as “transient” or “incidental” copies
protected under Section 51(1)(b) of the Copyright Act.
135.4. Even if the purpose of storage is to mine data, the purpose of storage
or the intention behind it is not relevant for the purposes of infringement under
Section 51 of the Copyright Act.
135.5. The subsequent processes of vectorization/tokenization raise technical
issues and therefore, whether these acts amount to infringement can be
decided only in a trial.
135.6. Whether the training process involves further reproduction of ANI’s
data, can also be determined only in a trial.
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Issue No.3 Whether the defendants’ use of plaintiff’s copyrighted
data qualifies as ‘fair use’44 in terms of Section 52 of the
Copyright Act, 1957.
SUBMISSIONS
Submissions of the Defendant (OPEN AI)45
136. Mr. Amit Sibal, senior counsel appearing on behalf of Open AI made
the following submissions:
136.1. Section 14 of the Copyright Act has to be read with Section 52 of the
Copyright Act as it uses the words “subject to provisions of this Act”.
Accordingly, Section 52 is not an exception, but a part of what is infringement
as defined in Section 14 of the Copyright Act. Therefore, the submission on
behalf of ANI that Section 52 should be interpreted in a narrow manner,
cannot be sustained. On the contrary, Section 52 of the Copyright Act should
be liberally construed. Reliance in this regard is made on B.D. Bhandari
(supra) and Chancellor Masters & Scholars of The University of Oxford v.
Narendera Publishing46.
136.2. Under Section 2(m) of the Copyright Act, a copy of the work would
be “infringing copy” only if the requirements of Sections 14, 51 and 52 of the
Copyright Act are fulfilled, as Section 2(m) uses the expression “in
contravention of the provisions of this Act”. Reliance in this regard is placed
on B.D. Bhandari (supra) and Narendera Publishing (supra).
44
To be read as ‘fair dealing’.
45
Since this defence was raised on behalf of the defendant, it is deemed appropriate that the submissions of
the defendant are recorded first.
46
2008 SCC OnLine Del 1058.
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136.3. The Copyright Act as originally enacted in 1957 used the words
“research or private study” in its fair dealing clause. The Notes on clauses for
Copyright Amendment Bill, 1994 (which was enacted as Copyright
Amendment Act, 1994) makes it clear that the amendment was proposed in
1992 to expand the “unduly narrow interpretation of the words “private
study””. The latest amendment in the Copyright Act, 1957 included the words
“personal use”, in addition to the already existing words “private use” and
“research”.
136.4. There is no restriction on “private use” being only for non-commercial
purposes. This view is reinforced from a perusal of sub-clauses (ii) and (iii)
of Section 52 (1)(a) of the Copyright Act, which do not make the distinction
between commercial and non-commercial. Wherever the Copyright Act
makes a distinction between commercial and non-commercial uses, it has
been stipulated therein. Reference in this regard may be made to Section
52(1)(ad) and Section 32(6)(d) of the Copyright Act. Merely because the use
by Open AI is commercial, would not make it unfair. Reference in this regard
is made to the judgment in Super Cassettes Industries v. Hamar Television
Network47.
136.5. ANI has wrongfully placed reliance on the judgment of Rupendra
Kashyap v. Jiwan Publishing House48. In the said case, the defendant
no.3/CBSE had outsourced printing of its previous years’ question papers to
third parties/defendants no.1 and 2, hence it was held that the defence under
Section 52 would not be available as it is available only to a defendant
conducting private study or research and not to a third party. B.D. Bhandari
47
2010 SCC OnLine Del 2086.
48
1996 SCC OnLine Del 466.
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(supra) holds that even a body corporate is entitled to the defence under
Section 52(1)(a) of the Copyright Act.
136.6. The Explanation to Section 52(1)(a) was also added in 2012. In terms
of the Explanation to Section 52(1)(a) of the Copyright Act, the expression
“not itself being an infringing copy”, is restricted to “computer programme”
and not to the other forms of storage. The Explanation’s language and intent
is clear that the protection of Section 52(1)(a) extends to works stored in an
electronic medium for the purposes mentioned under the said provision. The
limiting language of the Explanation within the commas only applies to
computer programmes.
136.7. If ANI’s argument is to be accepted, no electronic storage of a copy of
a work published in an electronic form (such as an online article which is
freely accessible over the internet) would ever be eligible for fair dealing
protection under Section 52(1)(a). This would mean that making physical
copies (for instance, by hand, a typewriter, or a mechanical medium) of a work
would be capable of protection under Section 52(1)(a), while the same act
done in an electronic medium would be barred from a fair dealing defence.
136.8. ANI wrongly contends that the defence under Section 52(1)(a) of the
Copyright Act would not be available to storage as storage is covered under
Section 52(1)(n) and 52(1)(p) of the Copyright Act. The aforesaid Sections
cover specific types of storage and on that basis, it cannot be said that storage
is not covered under Section 52(1)(a) of the Copyright Act.
136.9. Unlike ANI’s works, which are meant for human consumption for its
expressive elements, the use of works for training models by Open AI is non-
expressive.
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136.10. The use of Open AI would amount to “private use” as mentioned in
sub-clause (i) of Section 52(1)(a) of the Copyright Act, as it is only for the
purposes of training of the Open AI’s LLM. If Section 52(1)(a)(i) of the
Copyright Act is interpreted to mean that the exception is available only for
personal use, the word “private” would be rendered otiose.
136.11. The word “research” must be given a broad and liberal interpretation
so that it is not limited in any manner to a private context. Reliance in this
regard is placed on the judgment of Canadian Court in CCH Canadian
(supra).
136.12. Open AI’s storage and use of training data falls within the ambit of
“private use”, including “research”, which is protected under Section
52(1)(a)(i) of the Copyright Act and does not amount to infringement of
copyright.
136.13. Indian Courts have adapted the US four-factor test in India. By various
judgments of the Indian Court, the US four-factor test has been adapted under
Indian copyright law for the purposes of Section 52(1)(a) of the Copyright
Act. The Indian judgments which have relied upon the four-factor test are as
follows:
i. India TV Independent News Service v. Yashraj Films49
ii. Super Cassettes Industries Limited v. Chintamani Rao50
iii. B.D. Bhandari (supra)
iv. Narendera Publishing (supra)
Indian Courts have also recognized that the most crucial test out of the four-
factor test is transformative character of the use. The use of publicly available49
(2012) SCC OnLine Del 4298.
50
(2011) SCC OnLine Del 4712.
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works forming part of the training data for training the LLMs is highly
transformative. [Ref. Narendera Publishing (supra) and B.D. Bhandari
(supra)].
136.14. Open AI’s ChatGPT is not a substitute for subscription to news
agencies, such as ANI.
Intervenors supporting OPEN AI
i. Submissions on behalf of Intervenor – IGAP Project LLP (I.A.
4616/2025)
137. Mr. Akhil Sibal, senior counsel appearing on behalf of the intervenor
in I.A. 4616/2025 made the following submissions:
137.1. When originally enacted, Section 52(1)(a)(i) of the Copyright Act
limited the purposes to “research or private study”. The provision was
amended in 1994 to “private use including research”.
137.2. The use of copyrighted data to train LLMs meets both, the purpose
and the fairness limitations as envisaged under Section 52(1)(a) of the
Copyright Act.
137.3. Section 52(1)(a) of the Copyright Act does not provide that
commercial uses would not be covered therein. In contradistinction, Section
52(1)(k)(ii), Section 52(1)(l) and Section 52(1)(o) of the Copyright Act have
excluded commercial uses. Hence, the legislature has deliberately chosen not
to put an element of commerciality in Section 52(1)(a) of the Copyright Act.
137.4. Reliance placed by ANI on Jiwan Publishing House (supra) and B.D.
Bhandari (supra) to submit that commerciality defeats fair dealing is
misplaced. Jiwan Publishing House (supra) was a case where a publisher of
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personal use, the publisher’s use should also be considered private or
personal, which was rejected by the Court.
137.5. B.D. Bhandari (supra) holds that a commercial use is not fair in the
context of Section 52(1)(h) of the Copyright Act and not in the context of
Section 52(1)(a) of the Copyright Act. There is no general proposition laid
down in the aforesaid judgment that commercial use defeats fair dealing.
137.6. The purposes mentioned in Section 52(1)(a) of the Copyright Act,
such as “research”, “review” and “reporting of current news and current
affairs” are well recognized as permissible uses of copyright, which are often
carried out for commercial purposes.
137.7. While interpreting terms such as “research”, “review” and “private
use”, the Court should apply the doctrine of updating construction i.e. the
Parliament, while enacting a law is expected to anticipate future
developments. Accordingly, the terms “research”, “private use” and “review”
may not be limited to acts of human beings alone but to machine learning as
well. Therefore, these terms should be interpreted liberally.
137.8. The term “private use” must be contradistinguished from the term
“personal use”. Supreme Court in Academy of General Education, Manipal
v. B. Malini Mallya51 has adopted the expansive meaning of the word
“private” by holding that a dance performance at an educational institution
can also be within the meaning of “private use” for research, review or
criticism. ‘Pre-training dataset’ obtained by LLMs is private in nature i.e.
accessible only to LLM models themselves. In other words, this data set is not
51
(2009) 4 SCC 256.
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publicly available for either access or download. Therefore, ‘use’ of any
copyrighted material is totally private.
137.9. In B.D. Bhandari (supra), the Division Bench adopted the
transformative test adopted by the American Courts for determining what
constitutes fair use. The Court considered whether contribution in writing a
‘guide book’ is such that a nature of guide book is different than the textbook.
It was held that if the purpose served by the guide book is substantially
different from the purpose served by the text book, it would be treated as
transformative.
137.10. In The Chancellor, Masters & Scholars of University of Oxford v.
Rameshwari Photocopy Services (DB)52, it was held that the purposes of use
would determine whether a particular use qualifies as being fair. The fairness
is determined by whether the extent is justified by its purpose. In the context
of reproduction of literary works for creating course packs, the Court held that
copying of entire articles was justified for the purposes of education.
137.11. The DNPA and IMI have wrongfully relied upon Bartz v. Anthropic
(supra) to submit that the fair use defence for training is unavailable if the first
copy is not authorized by the copyright holder. In Bartz v. Anthropic (supra),
the defendant had used ‘pirated books’ for creating a permanent general-
purpose library, which was held to be not fair use. In the present case, Open
AI does not create any library and the data is used only for training purpose.
137.12. The US Courts in Bartz v. Anthropic (supra) and Kadrey v. Meta
Platforms (supra) have come to the conclusion that the use of copyrighted
materials for training LLM is transformative. In Bartz v. Anthropic (supra),
52
2016 SCC OnLine Del 6229.
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the Court drew parallels between the training process and a human being
reading books and generating new works. It was observed that the entire
purpose of training was not to replicate or supplant the original words on
which the LLM was trained but to create something different.
137.13. Since the purpose and character of the use of ANI’s work is only for
training the data sets along with millions of other works being used for the
same purpose, the same would amount to transformative purpose. Further,
since the format of storage on the input side is totally different from that of
the ANI’s data, i.e. the data stored in a machine-readable algorithm which
cannot be read by humans, the same would amount to transformative use.
137.14. In the present case, the objective of ANI and Open AI are
fundamentally different. ANI is a news agency which is mainly focused on
creating, verifying and distributing news which involved a process of fact-
gathering, investigative journalism and contextualization of stories. On the
other hand, LLMs serve as tools such as content creation, researching,
brainstorming and idea generation, language translation, learning and
education, creative writing, summarizing or paraphrasing. Therefore,
activities of Open AI cannot substitute the activities carried out by ANI. No
evidence has been provided by ANI that Open AI’s use of AI generative use
had led to a decrease in their market share.
Submissions of the Plaintiff (ANI)
138. Mr. Sidhant Kumar, counsel appearing on behalf of ANI made the
following submissions:
138.1. Open AI’s actions do not fall under “private or personal use, including
research” as it is used purely for commercial purposes and for making profit.
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It is settled law that the defence under Section 52(1)(a)(i) is unavailable to
person who uses the copyrighted works for commercial exploitation [Ref.
Jiwan Publishing House (supra)]. Consequently, Open AI’s claim of use for
personal and private research is also unsustainable as it uses ANI’s works for
a manifestly commercial purpose, that is, to earn revenues from enhanced
functioning of the ChatGPT model.
138.2. The contention of Open AI that the condition of “non-infringing copy”
is only for a computer programme is misconceived. The Explanation
appended to Section 52(1)(a) of the Copyright Act extends the specified
exemption to an electronically stored copy of a work subject to the condition
that the work itself is lawfully stored. The Explanation is centred around the
term “any work”. Consequently, the condition that the work must not “itself”
be an infringing copy, has to be a reference to the “work” itself and not to a
computer programme that may be incidentally involved. The word “itself”
emphasizes that the concern is about the copy stored. It does not refer to some
other copy, not the programme in the abstract, but the particular copy. This is
significant because it echoes the concerns about the distinction between the
lawfulness of the act (storage for fair dealing) and the lawfulness of the stored
copy.
138.3. The opening line of Section 52(1)(a) expressly excludes computer
programmes from its ambit. It is settled law that Explanation cannot enlarge
the scope of the parent provision. Consequently, the Explanation cannot be
read to provide a fair dealing right with respect to computer programmes that
the parent clause itself has denied.
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138.4. The Explanation to Section 52(1)(a) of the Copyright Act only
provides protection to incidental storage of non-infringing copies. Therefore,
permanent storage of ANI’s work would amount to infringement of copyright.
138.5. Open AI’s use of ANI’s works would not qualify as “research” under
Section 52(1)(a)(i) of the Copyright Act. Open AI just copies ANI’s creative
expression and generates responses without any creative input from Open AI.
138.6. Without prejudice to the aforesaid submissions, the four-factor test
under the US Law has no application in the Indian copyright Law.
138.7. Open AI’s claim of transformative use is flawed. The expressive and
non-expressive element of raw data are not segregated before feeding the
information in the LLM.
138.8. Open AI’s ChatGPT works as an alternative to the ANI’s publications
and diminishes the ANI’s market.
Intervenors supporting ANI
i. Submission on behalf Intervenor – Digital News Publishers Association
and Ors. (I.A. 2199/2025)
139. Mr. Rajshekhar Rao, senior counsel appearing on behalf of intervenors
in I.A. 2199/2025 made the following submissions:
139.1. Under Section 52(1)(a) of the Copyright Act, Open AI has to show the
following to be eligible to claim the defence to copyright infringement:
(a) The works utilized were non-infringing copies as mandated
under the Explanation to Section 52(1)(a) of the Copyright Act
that have been lawfully accessed.
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(b) The use of works was for any one (or more) of the purposes
enumerated at Section 52(1)(a)(i), (ii) and (iii) of the Copyright
Act.
(c) The use of the works amounted to fair dealing.
139.2. Storage of copyright materials which are publicly available by a
commercial entity for disseminating information to the public can never be
“private or personal use”. Under Section 52(1)(a) of the Copyright Act, Open
AI’s LLM is only available to an individual researcher or student, this cannot
be claimed by a commercial organization. Since the elemental purpose is
dissemination of commercial platform to subscribers and users, the same
cannot amount to “private use”.
139.3. Data sets containing copyrighted information are accessed and
extracted unlawfully from sources without a license. Therefore, the defence
of fair dealing cannot be invoked.
139.4. As per Indian judgments, the American four-factor test has only been
applied as a guiding principle to determine fairness of a dealing and only has
a persuasive value. There are significant structural and textual differences
between the Indian concept of fair dealing and American test of fair use. To
reiterate, right to ‘transform’ a work is explicitly recognized under the US
Copyright Act, whereas no such recognition exists under the Indian Copyright
Act.
139.5. The submission of Open AI that storage of works for extracting
information in the process of training an AI model is a transformative purpose,
is misplaced. The US Supreme Court in Andy Warhol v. Lynn Goldsmith53
53
2023 SCC OnLine US SC 19.
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held that merely because the secondary work adds new expression to the
source material, it will not be transformative.
139.6. The ultimate purpose of training an LLM and that of a news platform
is the same i.e. to disseminate accurate information to the public. When a
secondary work shares a common purpose with the original, work ceases to
be transformative. Reliance is placed on the observations made by the US
District Court in Kadrey v. Meta Platforms (supra), where the Court has noted
the unlawful advantage that training an AI model makes of creative expression
and the effect it has on the market share for news and other fact-based
expression.
ii. Submission on behalf of Intervenor – Indian Music Industry and Ors.
(I.A. 4027/2025)
140. Mr. C.M. Lall, senior counsel appearing on behalf of intervenors in I.A.
4027/2025 made the following submissions:
140.1. The copies of works used by AI models are obtained from unlawful
sources/works used without a license from the copyright owner.
140.2. Use of any copyright protected content for the purposes of training AI
models does not ex facie amount to fair dealing of the works under Section
52(1)(a) of the Indian Copyright Act.
140.3. The Explanation, which was introduced by the 2012 Amendment to
the Copyright Act, effectively incorporated an additional condition to Section
52(1)(a) that the storage of any work for the “purposes” under Section
51(1)(a) must be of a non-infringing copy of the work.
140.4. The word “including” occurring between “storing of any work in any
electronic medium for the purposes mentioned in this clause” and “theSignature Not Verified
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incidental storage of any computer programme” is the crucial connecting link.
It is settled law that the usage of the word “including” in statutory provisions
is conjunctive. The placement of commas does not control the meaning of the
Explanation to Section 52(1)(a). The opening part of the Explanation also
refers to “any work”.
140.5. The ultimate purpose of the Open AI is not research or private or
personal use, but to develop and make available a commercial AI model to its
subscribers/users. The word “private” would have to be viewed in the context
of the word “research”. Open AI’s activities are not entitled to any defences
available under Section 52 of the Copyright Act.
140.6. The wholesale reproduction of entire copyrighted content would not
amount to fair dealing. The use of the word “including” in Section 52(1)(a) is
in fact a limitation and not an expansion. The expression “private use” thus
effectively ousts ‘commercial use’. The use by Open AI does not amount to
“transient or incidental storage” which is exempted under Section 52(1)(b)
of the Copyright Act.
140.7. The open-ended US Copyright Law Doctrine of ‘Fair Use’ is not
sanctioned by the statute in India. The limitations under Section 52(1)(a) of
the Copyright Act would have to be satisfied in order to invoke the defence
specified therein. The concept of ‘transformative use’ applied by American
Courts cannot be adopted in the Indian context. The Courts in UK and
Australia have desisted from incorporating the ‘fair use’ principle into their
domestic law.
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140.8. The judgments of the US Courts in Thomson Reuters v. Ross
Intelligence54, Bartz v. Anthropic (supra) and Kadrey v. Meta Platforms
(supra), support the view that use of the copyrighted material for training an
LLM cannot be considered fair use.
iii. Written Submissions filed by Mr. Ankit Sahni, Advocate on behalf of the
Intervenors – Federation of Indian Publishers (I.A. 470/2025)
141. The use of the expression “namely” in Section 52 makes it clear that
only the acts that are specifically mentioned in Section 52 are exempted from
being construed as infringement.
141.1. The defence under Section 52(1)(a)(i) of the Copyright Act is
available to an individual user and not to a defendant who is exploiting
copyrighted works for its commercial activities. [Ref. TIPS Industries v.
Wynk Music55]
141.2. The de-minimis defence taken by Open AI that the copyrighted work
used by Open AI forms very miniscule part of the news related work being
used by Open AI is misplaced as de-minimis is to be seen qua the extent of
the work of the copyrighted owner that has been used by the defendant and
not qua the entire copyrighted work of the various copyrighted owners being
used by the defendant.
141.3. The four-factor test adopted in the US in respect of fair use would not
be applicable in India.
54
Case No. 1:20-cv-613-SB.
55
2019 SCC OnLine Bom 13087.
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Submissions of Professor Arul George Scaria, Amicus Curiae
142. Prof. Scaria made the following submissions:
142.1. The fair dealing analysis requires a two-step assessment:
i. The first step, whether the use falls under one of the specific
purpose categories mentioned in Section 52 of the Copyright Act.
ii. The second step, whether the use can be considered as “fair” or
not.
142.2. The terms “private use” and “research” mentioned in Section
52(1)(a)(i) of the Copyright Act and the words “criticism or review” in Section
52 (1)(a)(ii) of the Copyright Act and “reporting of current news events” in
Section 52(1)(a)(iii) of the Copyright Act must be interpreted in a manner
which is consistent with the broader purpose of copyright law i.e. to promote
creation and dissemination of new works.
142.3. As the learning process of the LLM does not involve giving access to
any external human being and such learning is primarily done with the
objective of promoting research, such storage would be covered within the
broad ambit of Section 52(1)(a)(i) of the Copyright Act.
142.4. Insofar as interplay between Section 51 and Section 52 of the
Copyright Act is concerned, the Court should take into account the opening
words of Section 52 which provide that the “following acts shall not constitute
an infringement”. Therefore, Section 52 should be interpreted by a Court in a
liberal manner. Reference is made to Single Bench judgment in Chancellor,
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Services56and the judgment of the Supreme Court in B. Malini Mallya57
(supra).
142.5. There is no requirement in Section 52(1)(a) of the Copyright Act for
Open AI to acquire lawful access to ANI’s copyrighted works. Wherever a
statute requires lawful access the same has been specifically provided in the
statute [Ref. Section 52(1)(ab) and Section 52(1)(ad)].
142.6. Section 52(1)(a) of the Copyright Act specifically excludes computer
programme as a computer programme is specially covered under other
provisions of Section 52(1) of the Copyright Act. The Explanation to Section
52(1)(a) is in respect of incidental use of computer programme for the
purposes of storage of a work.
142.7. There is no prohibition for ‘commercial use’ under Section 52(1)(a)(i)
of the Copyright Act. Therefore, the same is not a relevant factor for the
purpose of Section 52(1)(a)(i) of the Copyright Act.
142.8. Section 29 of the Canadian copyright law also provides a similar fair
dealing exception as provided under the Indian Copyright Act. In CCH
Canadian (supra), Canadian Supreme Court held that the expression
“research” used in Section 52(1)(a)(i) of the Copyright Act should be given a
broad and liberal meaning. Reliance in this regard is also placed on judgment
of the Canadian Supreme Court in Society of Composers, Authors and Music
Publishers of Canada v. Bell Canada58.
142.9. The four-factor test adopted in United States is not applicable in India.
Therefore, the Courts in India are free to adopt an appropriate test to determine
56
2016 SCC OnLine Del 6713, ¶ 28.
57
¶¶ 38-39.
58
[2012] 2 S.C.R. 326.
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fair dealing. As is evident from the judgments passed by Indian Courts, there
is no single approach that the Courts have used to determine fair dealing.
Submissions of Mr. Ramanujan, Amicus Curiae
143. Mr. Ramanujan made the following submissions:
143.1. Section 52(1)(a) of the Copyright Act should not be expanded beyond
its expressed terms is apparent from the use of the term “namely”, which
suggests that the list which follows is exhaustive.
143.2. The use of the words “private or personal” in Section 52(1)(a)(i) of
the Copyright Act indicate that the exemption is intended to apply at a
personal level to an individual and not to a defendant with a commercial
motive. [Ref. TIPS Industries v. Wynk Music (supra)].
143.3. The four-factor test adopted by the US Courts cannot be adopted in
India in the absence of any statutory framework. The same can be used only
to supplement and not to supplant the statutory mandate of Section 52 of the
Copyright Act. The Indian fair dealing exception is purpose limited, whereas
the US ‘fair use’ exception is purpose agnostic. [Ref. Super Cassettes v.
Hamar Television (supra); Jiwan Publishing House (supra) and Syndicate
of Press of University of Cambridge v. Kasturi Lal59].
143.4. The judgment of Division Bench in B.D. Bhandari (supra), clearly
lays down that Section 52 is in the nature of an exception to Section 51 of the
Copyright Act. Therefore, there should be a two-step analysis –
(i) whether there is infringement and, 59 2005 SCC OnLine Del 1448. Signature Not Verified Signed By:VIVEK CS(COMM) 1028/2024 Page 84 of 135 MISHRA Signing Date:24.07.2026 17:17:24 (ii) whether the infringing act falls in any of the exceptions provided under Section 52 of the Copyright Act.
143.5. The expression “private use” in Section 52(1)(a)(i) of the Copyright
Act would not apply to Open AI in the present case. Even though the process
adopted by Open AI for training is private, the use is not private. As a result
of the training, the output which is produced is for the use by the public.
143.6. Reliance placed by Open AI on the judgment in B. Malini Mallya
(supra) may not be apposite as the observations made in paragraph 38 of the
said judgment that institutions can take benefit of Section 52 of the Copyright
Act were ‘sub silentio’ observations.
143.7. The expressions “private” or “personal” used in Section 52(1)(a)(i) of
the Copyright Act have been used in an overlapping manner and would apply
only to use by individuals and not by corporations like Open AI. The judgment
in Narendera Publishing (supra), was in the context of Section 52(1)(a)(ii)
and not Section 52(1)(a)(i) of the Copyright Act. Sub-clauses (ii) and (iii) of
Section 52(1)(a) do not use the word “private” or “personal”. The Single
Bench applied the transformative test in the context of “review” under Section
52(1)(a)(ii) of the Copyright Act and not in the context of fair dealing.
143.8. In India, the test to be applied to determine fair dealing would be
‘substantiality of copying’ and ‘motive to compete’ as stated in Blackwood v.
A.N. Parasuraman60, which was cited in Rameshwari Photocopy Services
(DB) (supra).
143.9. In B.D. Bhandari (supra), the test that was adopted by the Division
Bench in the context of Section 52(1)(h) was whether a guide book is a
60
1958 SCC OnLine Mad 62.
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‘derivative work’, and the test of what would amount to derivative work was
laid down in Eastern Book Company v. D.B. Modak (supra). In paragraph
119 of the said judgment, the said test of derivative work has also been
extended to Section 52(1)(a)(ii) of the Copyright Act. It appears the
expression ‘derivative work’ has been used synonymously with the expression
‘transformative work’. Therefore, both the judgments of the Single Bench and
the Division Bench in B.D. Bhandari (supra) do not provide a definitive
ruling that ‘transformative work’ would apply to Section 52(1)(a)(i) of the
Copyright Act.
143.10. The exception of ‘transformative use’ is a part of the first factor of the
four-factor test, which is applied in the United States of America and the same
would not be applicable in India.
DISCUSSION AND ANALYSIS OF ISSUE NOS. 1 AND 3
144. Now, this Court shall examine the Issue Nos. 1 and 3, as follows:
A. Scope of Section 14(a)(i) of the Copyright Act, 1957
145. As observed in Issue No. 2, this Court is of prima facie view that the
copyright in respect of original literary works available on the website of ANI
vests with ANI. Therefore, ANI enjoys certain exclusive rights under Section
14 of the Copyright Act, which includes the right of “reproduction” under
Section 14(a)(i) of the Copyright Act. The right of reproduction includes the
right of storing the literary works owned by ANI “in any medium by electronic
means”. For ease of reference, Section 14(a)(i) of the Copyright Act is set out
below:
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“14. Meaning of Copyright–
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:–
(a) in the case of a literary, dramatic or musical work, not being a
computer programme,–
(i) to reproduce the work in any material form including the
storing of it in any medium by electronic means;”
[Emphasis supplied]
146. The original Section 14(1)(a)(i) as enacted on 4th June, 1957 only gave
the owner of the literary work, the “right to reproduce it in any material form”.
The phrase “including the storing of it in any medium by electronic means”
was incorporated in Section 14(a)(i) through the Copyright (Amendment) Act,
1994 enacted on 9th June, 1994. A comparison between the original text of
Section 14 (relevant part) and the amended text is tabulated below:
THE COPYRIGHT ACT, 1957 [4th June THE COPYRIGHT (AMENDMENT) ACT,
1957] 1994 [9th June 1994]
14. (1) For the purposes of this Act, 14. For the purposes of this Act,
“copyright” means the exclusive right, by “copyright” means the exclusive right
virtue of, and subject to the provisions of,subject to the provisions of this Act, to do
this Act, — or authorise the doing of any of the
following acts in respect to a work or any
(a) in the case of a literary, dramatic or substantial part thereof, namely:–
musical work, to do and authorise the
doing of any of the following acts, namely: (a) in the case of a literary, dramatic or
— musical work, not being a computer
programme,
(i) to reproduce the work in any
material form, (i) reproduce the work in any material
form including the storing of it in any
medium by electronic means;
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147. By way of the said amendment, the right of reproduction was expanded
to incorporate the digital storage of a literary work. This amendment was
enacted to keep pace with the evolving technological realities.
148. The scope and ambit of Section 14(a)(i) of the Copyright Act insofar as
storage of a literary work is concerned, is very wide as it uses the expression
“storing of it in any medium by electronic means” and the expression “in any
material form”. In terms of Section 14(a)(i) of the Copyright Act, the storage
of a copyrighted literary work in any medium by electronic means, would
therefore, amount to reproduction of the work.
149. Section 14 (a)(i) of the Copyright Act, when it speaks of storage, does
not make a distinction between temporary or permanent storage. Similarly,
under Section 5161 of the Copyright Act, the intention/purpose of storage is
not relevant when determining an infringement claim. Thus, if a literary work
is stored temporarily or permanently in any medium using electronic means,
the same would violate the exclusive right of the copyright holder as per
Section 14(a)(i) of the Copyright Act and would be an act of infringement
under Section 51 of the Copyright Act.
150. However, it is pertinent to note that Section 14 of the Copyright Act
uses the expression, “subject to the provisions of this Act”, thus making it clear
61
51. When copyright infringed.–Copyright in a work shall be deemed to be infringed–
(a) when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights
under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a
competent authority under this Act–
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright,
or
(ii) permits for profit, any place to be used for the communication of the work to the public where such
communication constitutes an infringement of the copyright in the work, unless he was not aware and had
no reasonable ground for believing that such communication to the public would be an infringement of
copyright; or
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that the exclusive rights therein would be subject to other provisions of the
Copyright Act. The other provisions would also necessarily include Section
52 of the Copyright Act which provides for various acts that do not constitute
infringement under the Copyright Act. In this regard, reference may be made
to opening sentence of Section 52 of the Copyright Act:
“52. Certain acts not to be infringement of copyright.–(1) The
following acts shall not constitute an infringement of copyright,
namely–”
Thus, specific acts enlisted under Section 52 of the Copyright Act cannot be
considered to be falling under Section 14 and 51 of the Copyright Act.
151. Therefore, while analysing the rights of copyright holder under Section
14 of the Copyright Act, the Court would also have to bear in mind Section
52 of the Copyright Act as that would make the ‘act’ which would have been
otherwise infringing under Section 51, to be non-infringing. The expression
“infringing copy” as defined under Section 2(m)62 of the Copyright Act also
uses the words “in contravention of the provisions of this Act”, therefore, if
the work/act is in accordance with provisions of Section 52 then it would not
be an infringing copy.
152. This view also finds support from the observations made by the
Division Bench in B.D. Bhandari (supra). In the said decision, the Division
Bench observed that when a defendant raises a defence under Section 52 of
62
2. Interpretation.–In this Act, unless the context otherwise requires, —
... ... ...
(m) "infringing copy" means,--
(i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the
form of a cinematographic film;
… … …
if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this
Act;
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the Copyright Act, the Courts are expected to give a finding whether the act
of the defendant falls within the categories enlisted under the said section
before giving a finding of infringement. The relevant paragraphs from B.D.
Bhandari (supra) are set out below:
“38. It is, thus, clear that when a work is in public domain, the natural
consequence is that it does not enjoy copy right and question of
violation thereof would not arise at all inasmuch as anybody and
everybody has right to use and/or copy the same. On the other hand,
when we talk of “fair use”, it would in the context that there is someone
enjoys copyright in that work, but the user thereof comes within the
domain of eventualities provide under Section 52 of the Copyright Act.
Thus, all the cases of fair dealing are infringements, but the law
examines the same based on the principles of “modicum of creativity”,
access and affordability based on social, economic, educational,
industrial, etc. considerations of society.
39. What follows form the above is that the two concepts, viz., ‘public
domain’ and ‘fair use’ work in altogether different fields. When the
defence is taken that a particular work is in public domain, the question
for consideration would arise as to whether the appellants enjoy
copyright therein or not. On the other hands, when plea of fair use
under Section 52 of the Copyright Act is adopted by the respondents
what is expected from the Court on the application of the provisions
of Section 52 of the Act is not to examine whether the activity is
infringement is not, but to examine whether the conditions stated in a
particular clause of Section 52 of the Act invoked by the respondents
is satisfied or not.”
[Emphasis supplied]
153. The Single Bench in Rameshwari Photocopy Services (supra) also
observed that if an act, which is an exclusive right of the copyright holder, is
provided in Section 52 of the Copyright Act, it would not amount to copyright
infringement. The relevant paragraph of Rameshwari Photocopy Services
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(Single Bench) (supra) is set out below:
“28. Section 51 prescribes that copyright is infringed inter alia when
any person does anything exclusive right to do which has been
conferred by the Act on the owner of copyright. It follows, if there is no
exclusive right, there is no infringement. Section 52 lists the acts which
do not constitute infringement. Thus, even if exclusive right to do
something constitutes copyright, if it finds mention in Section 52,
doing thereof will still not constitute infringement and the outcome
thereof will not be infringing copy within the meaning of Section
2(m). Section 55 also, entitles the owner of copyright to remedies by
way of injunction, damages, accounts or otherwise as are conferred by
law for infringement of a right, only when copyright is infringed and
except as otherwise provided by the Copyright Act. Thus unless there is
infringement of copyright within the meaning of the Act, owner of
copyright is not entitled to sue.”
[Emphasis supplied]
An appeal was preferred against the Single Bench judgment. The Division
Bench63 did not interfere with the finding of the Single Bench with respect to
interpretation of Section 52. In fact, the Division Bench noted that the counsel
for the parties were in agreement that Section 52 is not a proviso or an
exception to Section 51 of the Copyright Act.
154. Therefore, in my opinion, Issue No.1, as framed by this Court dealing
with the storage of ANI’s copyrighted works by Open AI and Issue No.3 on
the aspect of “fair dealing” would have to be considered together and cannot
be considered independently.
155. In the present case, the defence taken by Open AI is under Section
52(1)(a)(i) of the Copyright Act.
63
The Chancellor, Masters & Scholars of University of Oxford v. Rameshwari Photocopy Services (DB),
2016 SCC OnLine Del 6229, ¶ 25.
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B. Legislative History of Section 52(1)(a)
156. Section 52 forms part of the Copyright Act from its inception in 1957.
Thereafter, it has undergone multiple amendments, with the last amendment
in 2012.
157. In the Copyright Act of 1957, Section 52(1)(a) as originally enacted,
read as under:
“(a) a fair dealing with a literary, dramatic, musical or artistic
work for the purposes of –
(i) research or private study;
(ii) criticism or review, whether of that work or of any other
work."
[Emphasis supplied]
158. Section 52(1)(a) was amended in 1994 to read as under:
“(a) a fair dealing with a literary, dramatic, musical or artistic
work, not being a computer programme, for the purposes of –
(i) private use, including research;
(ii) criticism or review, whether of that work or of any other
work."
[Emphasis supplied]
159. In the ‘Notes on clauses’ in the amendment bill of 1994, the rationale
given for the amendment was that “an unduly narrow interpretation of words
“private study” (as existed) may result in harassment to public.”
160. Once again, Section 52(1)(a) was amended by Copyright (Amendment)
Act, 2012. The amended provision which exists as on date, reads as under:
“(a) a fair dealing with any work, not being a computer
programme, for the purposes of –
(i) private or personal use, including research;
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(iii) the reporting of current events and current affairs,
including the reporting of a lecture delivered to public.
Explanation.–The storing of any work in any electronic medium for
the purposes mentioned in this clause, including the incidental
storage of any computer programme which is not itself an infringing
copy for the said purposes, shall not constitute infringement of
copyright.”
[Emphasis supplied]
161. The purpose of various amendments carried out in Section 52(1)(a) has
been to widen the scope of Section 52(1)(a). More specifically in the
Copyright (Amendment) Act, 2012, an explanatory provision to Section
52(1)(a) of the Copyright Act was incorporated, which carves out an
exception in respect of ‘digital reproduction rights’ to align it with the
amendment in Section 14(a)(i), recognizing digital storage as part of
reproduction.
C. Interpretation of Section 52(1)(a) of the Copyright Act
162. It has been vehemently contended on behalf of ANI and intervenors
supporting ANI that since Section 52 is in the nature of an exception to
copyright infringement the same should be interpreted narrowly. However,
Open AI contends that Section 52 of the Copyright Act has to be construed
broadly, fulfilling the objective of the Copyright Act as it has been interpreted
by various Courts.
163. While interpreting Section 52(1) of the Copyright Act, a Coordinate
Bench of this Court in Narendera Publishing (supra) held that Section 52 of
the Copyright Act has to be construed liberally. The relevant paragraph of the
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said judgment is set out below:
“33. The doctrine of fair use then, legitimizes the reproduction of a
copyrightable work. Coupled with a limited copyright term, it
guarantees not only a public pool of ideas and information, but also
a vibrant public domain in expression, from which an individual can
draw as well as replenish. Fair use provisions, then must be
interpreted so as to strike a balance between the exclusive rights
granted to the copyright holder, and the often competing interest of
enriching the public domain. Section 52 therefore cannot be
interpreted to stifle creativity, and the same time must discourage
blatant plagiarism. It, therefore, must receive a liberal construction
in harmony with the objectives of copyright law. Section 52 of the Act
only details the broad heads, use under which would not amount to
infringement. Resort, must, therefore be made to the principles
enunciated by the courts to identify fair use.”
[Emphasis supplied]
164. The matter went up in appeal before the Division Bench. However, the
Division bench64 did not disturb the aforesaid finding of Single Bench. In fact,
a holistic reading of the judgment of the Division Bench indicates that Section
52 should not be read as a proviso or an exception to Section 51. Rather,
Section 52 has been construed liberally by the Division Bench.
165. At this juncture, it would be appropriate to examine how similar
exceptions to copyright infringement are interpreted internationally. In CCH
Canadian (supra), the Supreme Court of Canada held that fair dealing
exception is an integral part of the Copyright Act (of Canada) rather than
simply a defence. Therefore, in order to maintain a proper balance between
the rights of copyright owners and users, it should not be interpreted
64
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restrictively. The relevant paragraph from the said judgment is set out below:
“Before reviewing the scope of the fair dealing exception under the
Copyright Act, it is important to clarify some general considerations
about exceptions to copyright infringement. Procedurally, a defendant
is required to prove that his or her dealing with a work has been fair;
however, the fair dealing exception is perhaps more properly
understood as an integral part of the Copyright Act than simply a
defence. Any act falling within the fair dealing exception will not be
an infringement of copyright. The fair dealing exception, like other
exceptions in the Copyright Act, is a user’s right. In order to maintain
the proper balance between the rights of a copyright owner and users’
interests, it must not be interpreted restrictively. As Professor Vaver,
supra, has explained, at p. 171: “User rights are not just loopholes.
Both owner rights and user rights should therefore be given the fair and
balanced reading that befits remedial legislation.””
[Emphasis supplied]
166. The legal principle that emerges from a reading of the aforesaid
judgments is that Section 52 of the Copyright Act strikes a balance between
the exclusive rights granted to the owner of the copyright and the competing
public interest of encouraging creativity and disseminating knowledge.
Hence, Section 52 is not in the nature of a proviso or an exception to the
Section 51 of the Copyright Act.
167. In my respectful view, Section 52 independently defines the
rights/privileges of a user in respect of copyrighted works and must not be
interpreted in a restrictive manner. It is an integral part of the Copyright Act
and therefore, it has to be given broad and liberal interpretation.
D. Scope of Section 52(1)(a)
168. To determine whether the storage by Open AI falls under Section
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52(1)(a) of the Copyright Act, a two-step examination is required:
i. Whether the storage by Open AI is for one of the specific purposes
mentioned in Section 52(1)(a) of the Copyright Act. (Purpose Test)
ii. Whether the storage can be considered as “fair dealing” or not.
(Fairness Test)
I. PURPOSE TEST
169. In the present case, it is an admitted position that Open AI electronically
stores ANI’s original literary works, at least on a temporary basis. Even if
literary works of ANI collected and stored by Open AI are deleted after the
completion of training, it would not alter the position that temporary storage
occurred in the first place.
170. Hence, to satisfy the first requirement under Section 52(1)(a) of the
Copyright Act, it has to be determined whether the purpose for which Open
AI has stored ANI’s literary works falls under Section 52(1)(a) of the
Copyright Act. The relevant extracts from Section 52(1)(a) providing the
purposes mentioned therein are set out below:
“52. Certain acts not to be infringement of copyright.–(1) The
following acts shall not constitute an infringement of copyright,
namely–
(a) a fair dealing with any work, not being a computer programme, for
the purposes of –
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other
work;
(iii) the reporting of current events and current affairs,
including the reporting of a lecture delivered to public.
Explanation.–The storing of any work in any electronic medium for the
purposes mentioned in this clause, including the incidental storage of
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any computer programme which is not itself an infringing copy for the
said purposes, shall not constitute infringement of copyright.”
[Emphasis supplied]
171. On a plain reading of Section 52(1)(a), it is manifest that sub-clauses
(i), (ii) and (iii) of Section 52(1)(a) are disjunctive in nature. Therefore, if the
purpose falls under any of the three sub-clauses of Section 52(1)(a), the use
would be entitled to protection against an infringement action. In the present
case, Open AI claims protection under Section 52(1)(a)(i) of the Copyright
Act, i.e. “private or personal use, including research”.
172. In support of its contention that Open AI does not fulfil the
requirements of the purpose test under Section 52(1)(a)(i), ANI has made the
following submissions:
a. The private use/research cannot be for commercial purposes.
b. The first copy of the work has to be a non-infringing copy.
c. The use by Open AI does not amount to “private or personal use,
including research”
I will deal with each of these separately.
a. Whether commercial use is entitled to protection under Section
52(1)(a)(i)
173. On behalf of ANI, it is contended that the phrase “private or personal
use, including research” under Section 52(1)(a)(i) of the Copyright Act would
not be applicable in the present case since ANI’s works are being used by
Open AI for commercial purposes and to earn profits. Moreover, Open AI is
a business venture which profits from large scale reproduction, adaptation and
distribution of copyrighted content.
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174. Per Contra, it is contended by Open AI that limiting the expression
“private” use including “research” only for non-commercial purposes and to
individuals would amount to a narrow interpretation of Section 52 (1)(a) of
the Copyright Act. According to Open AI, wherever non-commercial use is
intended, it has been specifically provided in the statute.
175. It has been argued on behalf of the intervenors IMI and DNPA that since
Section 52(1)(ad)65 of the Copyright Act makes a reference to “non-
commercial personal use”, the said limitation should also be read in Section
52(1)(a) of the Act.
176. I am unable to agree with the said submission. A perusal of various
provisions of Section 52(1) of the Copyright Act clearly demonstrate that the
legislature was aware of the distinction between ‘commercial’ and ‘non-
commercial’ use and thought it fit to exclude commercial use only in specific
cases.
177. Wherever the protection under Section 52(1) of the Copyright Act is
provided only for non-commercial use, it has been specifically provided. For
instance, Section 52(1)(ad) makes it clear that the protection therein is
available only for “non-commercial personal use”. Similarly, Section
65
(ad) the making of copies or adaptation of the computer programme from a personally legally obtained
copy for non-commercial personal use;
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52(1)(k)(ii)66, Section 52(1)(l)67, Section 52(1)(n)68 and Section 52(1)(o)69 of
the Copyright Act, specifically, stipulate that the benefit of the exceptions
contained therein would be available for non-commercial purposes only. The
requirement of non-commercial use is conspicuously absent in Section
52(1)(a).
178. The defence under Section 52(1)(a) of the Copyright Act is not
restricted to non-commercial use can also be gauged from the fact that a
person may be writing a book review that could be done on a commercial
basis, and yet be covered under Section 52(1)(a)(ii) of Copyright Act. In
Super Cassettes v. Hamar Televisions (supra), while dealing with the defence
under Section 52(1)(a)(ii) of the Copyright Act, it was held that commercial
use of a copyrighted work would not make it unfair or take it away from the
ambit of fair dealing.
179. Similarly, even “reporting of current events and current affairs” can be
for commercial purposes. For example, a journalist or a news agency
reporting a current event, may be a paid activity and yet the journalist or the
news agency would be entitled to take the defence under Section 52(1)(a)(iii)
of the Copyright Act. Therefore, in my view, the limitation of non-commercial
use cannot be read into Section 52(1)(a)(i). Merely because the use of a
defendant is commercial would not mean that the defendant would not be
66
(k) the causing of a recording to be heard in public by utilising it, —
(i) …
(ii) as part of the activities of a club or similar organisation which is not established or conducted for profit;
67
(l) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance
is given to a non-paying audience, or for the benefit of a religious institution;
68
(n) the storing of a work in any medium by electronic means by a non-commercial public library, for
preservation if the library already possesses a non-digital copy of the work;
69
(o) the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart
or plan) by or under the direction of the person in charge of a non-commercial public library for the use of
the library if such book is not available for sale in India;
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entitled to take the defences provided under Section 52 of the Copyright Act
unless there is a specific bar on commercial use as stipulated in some of the
provisions of Section 52 of the Copyright Act.
180. In this regard, a reference may be made to the judgment of the Canadian
Supreme Court in CCH Canadian (supra). In the said case, the Canadian
Supreme Court was dealing with Section 2970 of Copyright Act of Canada
(R.S.C., 1985, c. C-42) which is pari materia with Section 52(1)(a) of the
Copyright Act. It was held that “research” should be given a liberal
interpretation and that research should not be confined to non-commercial
use. The relevant paragraph of the said judgment is set out below:
“51. The fair dealing exception under s. 29 is open to those who can
show that their dealings with a copyrighted work were for the purpose
of research or private study. “Research” must be given a large and
liberal interpretation in order to ensure that users’ rights are not
unduly constrained. I agree with the Court of Appeal that research is
not limited to non-commercial or private contexts. The Court of
Appeal correctly noted, at para. 128, that “[r]esearch for the purpose
of advising clients, giving opinions, arguing cases, preparing briefs
and factums is nonetheless research.” Lawyers carrying on the
business of law for profit are conducting research within the meaning
of s. 29 of the Copyright Act.”
[Emphasis supplied]
181. Other common law jurisdictions have also taken a similar view that
merely because the use is a commercial one, may not take it outside the
defence of “fair dealing”71.
70
Research, private study, etc.
29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe
copyright.
71
Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36; Television
New Zealand Ltd v. Newsmonitor Services Ltd, [1994] 2 NZLR 91.
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182. ANI has relied upon paragraph 65 of B.D. Bhandari (supra) to argue
that the defences under Section 52 of the Copyright Act would not be available
for commercial use. The relevant paragraph of B.D. Bhandari (supra) relied
upon by ANI is set out below:
“65. It is clear from the reading of the aforesaid provision that this
would not come to the aid of the respondents who have published the
guide for commercial exploitation. In view of the law laid down in
various cases, commercial exploitation will take the matter outside the
ambit of ‘fair use’. The defence of ‘fair use’ as provided under Section
52(1)(h) of the Act is only available to the teacher and pupil to
reproduce the literary work in the course of instructions or
examination paper setter to reproduce the literary work as part of the
questions or to the pupil to reproduce the literary work as answers to
such questions. The respondents are neither teachers nor students nor
a person giving or receiving instruction. The defence of ‘fair use’
under Section 52(1)(h) of the Act only provided to a teacher and pupil
and not otherwise. If this defence is allowed to a publisher, then it
would result in a situation where every publisher, without permission
from the owner of copyright, would reproduce the ad verbatim literary
text from the educational textbooks prescribed by the University into
their books and exploit the same for commercial gains and benefits
and that too without giving any royalty or payment to the right owners
towards such reproduction. This practice would obviously discourage
creativity of authors who put their skill, labour, years of knowledge,
expertise, etc. into these educational books and encourage infringers
like the respondents to reproduce ad verbatim literary text from
original publications into their infringing books on the pretext of ‘fair
use’. Obviously, therefore, Section 52(1)(h) of the Act has no
application to the facts of this case.”
[Emphasis supplied]
183. The aforesaid observations made in B.D. Bhandari (supra) were in the
context of Section 52(1)(h) of the Copyright Act [now Section 52(1)(i) of the
Copyright Act]. For ease of reference, Section 52(1)(i) of the Copyright Act
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is set out below:
“(i) the reproduction of any work–
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination; or
(iii) in answers to such questions;”
The scope of Section 52(1)(i) is entirely different from Section 52(1)(a) as
Section 52(1)(i) deals with reproduction of any work in the “course of
instruction” or “as part of the questions to be answered in an examination” or
“in answers to such questions”. The Division Bench held that the defence
under Section 52(1)(h) is only applicable to a teacher and pupil and not to a
publisher.
184. Ultimately, the Division Bench held that the act of the defendants was
non-infringing and amounted to creating a ‘derivative work’ of distinctive
character. In B.D. Bhandari (supra), the guidebooks were being sold by
defendants for commercial purposes and yet the act of the defendants was held
to be non-infringing.
185. In Rameshwari Photocopy Services (DB) (supra), while dealing with
the defence under Section 52(1)(h) [now section 52(1)(i) of the Copyright
Act], the Division Bench gave the benefit of Section 52(1)(h) to the defendant,
even though the use of the defendant was for commercial purposes. It was
held that a teacher or a pupil cannot be expected to buy photocopiers and the
argument that there cannot be an intermediary for photocopying, was rejected.
186. The plaintiff has also placed reliance on paragraph 21 of the judgment
of this Court in Jiwan Publishing House (supra), in support of its contention
that the defence under Section 52(1)(a) of the Copyright Act would not be
available to a publisher who publishes a book for commercial exploitation.
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The relevant paragraph of the said judgment is set out below:
“21. In the written statement of defendants 1 and 2 vide para 4 of the
preliminary objections, as also in the reply to the application, reference
has been made to Section 52(1)(a)(i) and S 52(1)(b)(iii) of the
Copyright Act as providing the defences available to defendants 1 and
2. In the Copyright Act, there is nothing like sub clause (iii) to be found
under clause (b) of sub-section (1) of Section 52 of the Act. That
reference appears to be mistaken. It would, therefore, suffice to deal
with the plea raised by reference to S. 52(1)(a)(i) of the Act, which
provides inter alia, that a fair dealing with the literary work for the
purpose of research or private study does not constitute infringement of
copyright. The words ‘research or private study’ have been substituted
by the words ‘private use including research’ by the Copyright
(Amendment) Act, 1994 (Act 381 of 1994). What is contemplated is a
defence to the person conducting research or private study who while
doing so, if dealing fairly with a literary work, may not incur wrath of
the copyright having been infringed. But, if a publisher publishes a
book for commercial exploitation and in doing so infringes a
Copyright, the defence under section 52(1)(a)(i) would not be
available to such a publisher though the book published by him may
be used or be meant for use in research or private study. The defence
raised by defendants 1 and 2 based on Section 52(1) (a) (i) is not
available to them and the plea so raised has to be rejected.”
[Emphasis supplied]
187. In Jiwan Publishing House (supra), the defendants were publishing
previous years’ question papers of the examinations conducted by Central
Board of Secondary Education (‘CBSE’), without taking any license from
CBSE. The plaintiff contended that it was the exclusive licensee of CBSE in
respect of reprinting and reproduction of the question papers and actions of
the defendants were in breach of plaintiff’s rights. In those circumstances, it
was held that the defence under Section 52(1)(a)(i) of the Copyright Act is
available to a person conducting “research” or “private study”. The said
defence would not be available to a publisher whose book may be used for
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“research” or “private study” by third parties such as students.
188. ANI has also placed reliance on the judgment of the Bombay High
Court in TIPS Industries v. Wynk Music (supra) in support of its contention
that where the defendants commercially exploit copyrighted material of the
plaintiff, it would not be entitled to the defence under Section 52(1)(a) of the
Copyright Act. Once again, in this case, there was no “private use” of the
copyrighted material by the defendants. On the contrary, the defendants were
making available the plaintiff’s music to third party users on a commercial
basis through online streaming services and the defence taken was that the
said users were using the content in a private or personal capacity.
189. In the present case, as is explained hereinafter72, the use by Open AI is
only for the purposes of training its LLM, which is completely an internal
process and does not involve providing the copyrighted material of ANI to
any third party. Even after the training is complete, the training data is never
made available either in its natural language or tokenized form to any person.
Therefore, the judgments in Jiwan Publishing House (supra) and TIPS
Industries v. Wynk (supra) are of no assistance to ANI in the present case.
190. In light of the discussion above, in my view, merely because the use of
Open AI is for a commercial purpose would not mean that Open AI is not
entitled to take the defence under Section 52(1)(a) of the Copyright Act.
b. Requirement of “non-infringing copy” under Section 52(1)(a) of the
Copyright Act.
191. The Explanation to Section 52(1)(a) of the Copyright Act makes it clear
72
Refer to sub-heading ‘Whether use by Open AI amounts to “private or personal use, including research”‘.
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that storage (temporary/permanent) of a work in electronic means for
purposes mentioned in Section 52(1)(a) of the Copyright Act shall not
constitute infringement of copyright subject to the test of “fair dealing”. The
Explanation to Section 52(1)(a) of the Copyright Act has been the subject
matter of intense debate between the counsel for the parties. For the sake of
convenience, Section 52(1)(a) is set out below:
“52. Certain acts not to be infringement of copyright.–(1) The
following acts shall not constitute an infringement of copyright,
namely–
(a) a fair dealing with any work, not being a computer programme, for
the purposes of –
(i) private or personal use, including research;
(ii) criticism or review, whether of that work or of any other
work’
(iii) the reporting of current events and current affairs,
including the reporting of a lecture delivered to public.
Explanation.–The storing of any work in any electronic medium for
the purposes mentioned in this clause, including the incidental storage
of any computer programme which is not itself an infringing copy for
the said purposes, shall not constitute infringement of copyright.”
[Emphasis supplied]
192. The submission made on behalf of Open AI is that the use of ‘,’
(commas) before and after the expression “including the incidental storage of
any computer programme which is not itself an infringing copy for the said
purposes” makes it clear that the limitation of not being an infringing copy is
applicable only in respect of a computer programme.
193. It is the submission of ANI as well as the intervenors, DNPA and IMI
that Open AI stores a copy of ANI’s works that has been obtained in an
unauthorised manner. The storage of an infringing copy of a work would not
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qualify as a defence in light of Explanation to Section 52(1)(a) of the
Copyright Act. Any other interpretation of the Explanation would expand the
scope of Section 52(1)(a) of the Copyright Act as “computer programmes”
have already been excluded from the main text of Section 52(1)(a).
194. No doubt “computer programmes” have been excluded from the main
text of Section 52(1)(a) of the Copyright Act. What the Explanation refers to
is the “incidental storage of any computer programme” i.e. computer
programme is incidental to the electronic storage of a work. The limitation of
not being an infringing copy is, therefore, only applicable to the incidental
storage of computer programmes. This position is quite clear from the
positioning of the ‘,’ (commas) in the Explanation.
195. The Explanation to Section 52(1)(a) does not expand the scope of
protection with respect to “computer programmes” and merely clarifies that
storage of an infringing copy of a computer programme would not be
protected even if such storage is incidental. Therefore, ANI’s submission with
respect to expansion of scope of Section 52(1)(a) cannot be accepted.
196. In Sections 52(1)(aa), 52(1)(ab) and 52(1)(ad), the words “lawful”/
“legally obtained copy” has been used only in respect of computer
programmes. Therefore, it cannot be said that “non-infringing copy” would
apply to storage of other works unless it has been specifically mentioned. For
instance, in Section 52(1)(c)73 it has been specifically mentioned that for the
73
(c) transient or incidental storage of a work or performance for the purpose of providing electronic links,
access or integration, where such links, access or integration has not been expressly prohibited by the right
holder, unless the person responsible is aware or has reasonable grounds for believing that such storage
is of an infringing copy:
Provided that if the person responsible for the storage of the copy has received a written complaint from the
owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such
person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days
or till he receives an order from the competent court refraining from facilitating access and in case no suchSignature Not Verified
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purposes of providing electronic links, the person responsible must have
reasonable grounds to believe that an infringing copy is not being stored.
197. If the interpretation given by ANI is accepted, it would imply that a
researcher going to a public library and photocopying a page from a book for
the purposes mentioned under Section 52(1)(a) of the Copyright Act would
be entitled to defence of fair dealing. However, if the same researcher scans
the said page electronically and stores the same in its device for the same
purpose, the protection would not be available.
198. In my considered view, this distinction between storage in electronic
medium and storage in the physical medium cannot be the intent of Section
52(1)(a) of the Copyright Act. Therefore, I do not find any merit in the
contention that since Open AI stores an infringing copy of ANI’s work, it
would not be entitled to defence under Section 52(1)(a).
199. In Bartz v. Anthropic (supra), the US District Court clearly made a
distinction between acquiring plaintiff’s books in a lawful manner and
obtaining copies from ‘Shadow Libraries’. The US Court held that scanning
of lawfully acquired books amounted to fair use, whereas obtaining copies
from shadow libraries was not fair use.
200. In the present case, it is not the case of ANI that Open AI obtains copies
of ANI’s works from unauthorized sources or by breaking through the paywall
of ANI. It is not disputed that Open AI obtains copies from information/data
that is freely available on ANI’s website. Therefore, in any event, it cannot be
said that Open AI has obtained an infringing copy of ANI’s works.
201. Therefore, in my view, under the Explanation to Section 52(1)(a) the
order is received before the expiry of such period of twenty-one days, he may continue to provide the facility
of such access;
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limitation of not being an infringing copy is applicable only in respect of a
‘computer programme’ and not in respect of the works stored in electronic
mode.
c. Whether use by Open AI amounts to “private or personal use,
including research”
202. To begin with, as noted in my findings in Issue no. 2, the cut-off dates
for storage and training of the LLM models underlying ChatGPT were April
2022 (for GPT 4) and April 2024 (for GPT 4o), which is prior to the
publication of articles used by ANI as instances of reproduction. During the
course of hearing, ANI has not provided any further instances to show the
extracted data from ANI’s website has been used for training. Therefore, there
is no factual foundation in the plaint to reach a finding of infringement in
respect of the training claim. However, since it is an admitted position that the
original literary works of ANI are stored by Open AI at least temporarily
during the course of training74, this Court shall examine whether the storage
of literary works by Open AI for training LLMs underlying ChatGPT qualifies
as “private or personal use, including research” under Section 52(1)(a) of the
Copyright Act.
203. Open AI submits that the purpose of the storage of ANI’s original
literary works falls within of Section 52(1)(a)(i) i.e. “private or personal use,
including research”. More particularly, Open AI’s electronic storage of ANI’s
original literary works for training LLMs underlying ChatGPT, would fall
74
Paragraph 11.3 of Response on behalf of the Defendant to the written submissions on behalf of Prof. Arul
George Scaria, Amicus Curiae; Paragraphs 7, 13.1, 58.3 of Response on behalf of the Defendant to the written
submissions on behalf of Mr. Adarsh Ramanujan, Amicus Curiae; Paragraphs 63, 76 of the Written
Submissions on behalf of the Defendant dated 28 th March, 2025.
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within the ambit of “private” use, including “research”.
204. It is the submission of ANI duly supported by Mr. Adarsh Ramanujan
that “private use” under Section 52(1)(a)(i) of the Copyright Act is applicable
only to an individual/human being.
205. The interpretation advanced by Mr. Ramanujan is that the words
“private” and “personal” are overlapping and they draw meaning from each
other. Therefore, the interpretative rule of noscitur a sociis would require that
the meaning of “private” and “personal” be interpreted in an analogous and
cognate sense.
206. According to Prof. Scaria, the Copyright Act does not define the term
“private”. He refers to the definition of “private” given in Meriam Webster
Dictionary and Cambridge Dictionary to submit that the term “private” cannot
be confined to individual persons.
207. The Merriam Webster Dictionary gives the meaning of “private” as
– “intended for or restricted to the use of a particular person, group, or class”
and “belonging to or concerning an individual person, company, or interest”.
The Cambridge Dictionary defines “private” as “only for one person or
group and not for everyone”.
208. From the aforesaid definitions, it transpires that the term “private”
cannot be confined to an individual and can apply to a closed group or a
company. The expression “personal” may be confined to individual persons,
however, the term “private” would include other private entities, including
private companies.
209. As can be discerned from the amendments carried out in Section
52(1)(a) from time-to-time, the legislature has throughout been expanding the
scope of Section 52(1)(a) of the Copyright Act. The latest amendment of 2012
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provides that both “private” as well as “personal” use are eligible for
protection under Section 52(1)(a) of the Copyright Act. If the submission of
Mr. Ramanujan that “private” and “personal” are to be used interchangeably,
is accepted, then the word “private” would be rendered otiose.
210. The view that the term “private” should be given an expansive meaning
also finds support from the judgment of the Supreme Court in B. Malini
Mallya (supra). The respondent-plaintiff therein claimed copyright ownership
over a ballet dance form which was performed by the performers at the
appellant/defendant’s institute in New Delhi without any permission. In this
case, the Supreme Court gave the benefit of Section 52 to the defendant
institute by holding that a dance performance at an educational institution
would be covered under Section 52(1)(a)(i) of the Copyright Act as it
amounted to “private use”. The relevant extracts from B. Malini Mallya
(supra) are set out below:
“38. The High Court, in our opinion, should have clarified that the
appellants can also take the statutory benefit of the provisions
contained in clauses (a), (i) and (l) of sub-section (1) of Section 52 of
the Act.
39. Section 52 of the Act provides for certain acts which would not
constitute an infringement of copyright. When a fair dealing is made,
inter alia, of a literary or dramatic work for the purpose of private use
including research and criticism or review, whether of that work or of
any other work, the right in terms of the provisions of the said Act
cannot be claimed. Thus, if some performance or dance is carried out
within the purview of the said clause, the order of injunction shall not
be applicable.
40. Similarly, the appellant being an educational institution, if the
dance is performed within the meaning of provisions of clause (i) of
sub-section (1) of Section 52 of the Act strictly, the order of injunction
shall not apply thereto also. Yet again, if such performance is
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institution if it comes within the purview of amateur club or society,
the same would not constitute any violation of the said order of
injunction.”
[Emphasis supplied]
211. In the present case, Open AI stores the literary works in a closed space
without access to the public. The data obtained by the LLMs for training
purposes is used for private purposes. The said data is accessible only to the
LLM models themselves. The said data is not publicly available to any human
entity either for access or for download. Therefore, in my opinion, the use
amounts to being purely private.
212. The term “research” is not defined under the Copyright Act. However,
Merriam-Webster Dictionary gives the meaning of “research” as “to study or
investigate carefully”.
213. The Madras High Court in Blackwood v. A.N. Parasuraman (supra),
used the dictionary meaning of “research” for the purpose of interpreting
Section 52(1)(a) of the Copyright Act. The relevant paragraphs of the said
judgment are reproduced here below:
“154. There is no definition of the word “research” in the Act, and,
therefore its meaning has to be ascertained from ordinary English,
usage. In Funk and Wagnalls English dictionary “research” is said to
mean, I am extracting that meaning which appears to be most relevant
to the present context, “Diligent protracted investigation especially for
the purpose of adding to human knowledge, studious enquiry.”
155. In “The Shorter Oxford Dictionary” the meaning attributed is “An
investigation directed to the discovery of some fact by careful study of
a subject; investigation, inquiry into things.”…”
[Emphasis supplied]
214. The process of “research” is generally an intermediary process in all
cases. It is undertaken before an output is generated. Research happens before
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an academician writes a book or a research paper, or before a judge writes a
judgment, or before a medicinal chemist develops a drug, or before any such
developmental process. It is normally a closed activity and is not disclosed to
the general public. It is always the output of the research that is communicated
to the public.75
215. From the submissions made in the present case, it transpires that the
process of training LLMs underlying ChatGPT involves machine learning of
the stored literary works by screening and organising them. In this process,
the data is analysed by making extractions from the literary works and
converting them into machine-readable training inputs. This data is used to
train the LLMs iteratively to rectify errors and generate the most probable
statistical output. Accordingly, the process of training of LLMs underlying
ChatGPT can be considered as a form of research for generating new
knowledge and advancing artificial intelligence systems.
216. Clearly, when Section 52(1)(a) was last amended in 2012, the
legislature could not have imagined the advent of artificial intelligence (AI)
and/or LLMs. However, when the Court interprets the aforesaid provisions in
the light of modern-day technological developments, the Court has to give a
liberal and purposive interpretation using the ‘doctrine of updating
construction’.
217. The doctrine of updating construction gives effect to the true intention
of the legislature by interpreting words in a statute in accordance with
changing social conditions and developments in science and technology. This
doctrine was applied by a Constitutional Bench of Supreme Court in State
75
Merriam Webster Dictionary defines the verb “research” as “to study or investigate carefully”
<https://www.merriam-webster.com/dictionary/research.>.
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(Through CBI/ New Delhi) v. S.J. Choudhary76. In the said case, the
Supreme Court was dealing with a question of law i.e. “whether the opinion
of a typewriter expert is admissible in evidence under Section 45 of the Indian
Evidence Act, 1872″. The Supreme Court allowed the appeal and observed
that at the time of enactment of the Indian Evidence Act in 1872, the
typewriters were “practically unknown”. Hence, typewriting was not
specifically mentioned in Section 45 of Indian Evidence Act. The Supreme
Court relied upon Francis Bennion’s Statutory Interpretation, 2nd Edn., to
give a wider meaning to the expression “science” used in Section 4577 of the
Indian Evidence Act, to hold that the opinion of an expert in typewriting is
admissible. The relevant paragraph of S.J. Choudhary (supra) which quotes
Bennion’s Statutory Interpretation is reproduced below:
“10. Statutory Interpretation by Francis Bennion, 2nd Edn., Section
288 with the heading “Presumption that updating construction to be
given” states one of the rules thus: (p. 617)
“***
(2) It is presumed that Parliament intends the court to apply to an
ongoing Act a construction that continuously updates its wording
to allow for changes since the Act was initially framed (an
updating construction). While it remains law, it is to be treated as
always speaking. This means that in its application on any date,
the language of the Act, though necessarily embedded in its own
time, is nevertheless to be construed in accordance with the need
to treat it as current law.
***”
76
(1996) 2 SCC 428.
77
45. Opinions of experts. – When the Court has to form an opinion upon a point of foreign law or of science,
or art, or as to identity of handwriting, or finger impressions, the opinions upon that point of persons specially
skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions
are relevant facts.
Such persons are called experts.
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In the comments that follow it is pointed out that an ongoing Act is taken
to be always speaking. It is also, further, stated thus: (pp. 618-19)
“In construing an ongoing Act, the interpreter is to presume that
Parliament intended the Act to be applied at any future time in
such a way as to give effect to the true original intention.
Accordingly the interpreter is to make allowances for any relevant
changes that have occurred, since the Act’s passing, in law, social
conditions, technology, the meaning of words, and other matters.
Just as the US Constitution is regarded as ‘a living Constitution’, so
an ongoing British Act is regarded as ‘a living Act’. That today’s
construction involves the supposition that Parliament was catering
long ago for a state of affairs that did not then exist is no argument
against that construction. Parliament, in the wording of an
enactment, is expected to anticipate temporal developments. The
drafter will try to foresee the future, and allow for it in the wording.
***
An enactment of former days is thus to be read today, in the light
of dynamic processing received over the years, with such
modification of the current meaning of its language as will now
give effect to the original legislative intention. The reality and
effect of dynamic processing provides the gradual adjustment. It is
constituted by judicial interpretation, year in and year out. It also
comprises processing by executive officials.” ”
[Emphasis supplied]
218. In my opinion, the expression “research” should be given an updating
construction by taking into account the modern-day technical advancements.
With the advent of these technologies, research/ learning is no longer confined
to humans. It is now being done through Artificial Intelligence. However,
ultimately the research is at the behest of humans and for the benefit of
humans. For example, Section 52(1)(i) of the Copyright Act exempts the act
of reproduction by a teacher “in the course of instruction” from the ambit ofSignature Not Verified
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infringement. If tomorrow a human teacher is replaced by an AI bot or Robot78
to say that the said exception could only be used by a human would be a
regressive view. Such an approach would limit societal progress. Therefore,
the acts of further research cannot be confined to acts of human being alone
and the same would extend to machine learning as well.
219. Therefore, on a prima facie view, from the above analysis, this Court is
of the view that the process of training LLMs underlying ChatGPT undertaken
by Open AI using stored literary work of ANI falls under “private or personal
use, including research” as provided in Section 52(1)(a) of the Copyright Act
and fulfils the purpose test.
II. FAIRNESS TEST
220. Now, I will examine the second aspect, i.e. whether the acts of Open AI
can be considered “fair dealing” under Section 52 of the Copyright Act.
221. The term “fair dealing” has not been defined in the Copyright Act.
Therefore, it would be useful to examine how Courts in India have interpreted
the term “fair dealing”.
222. Open AI has placed reliance on Narendera Publishing (supra). In the
said judgment, the plaintiff was a well-known publisher of academic books,
who filed a suit against the defendants, who were selling guide books, which
reproduced excerpts from the plaintiff’s books.
223. In Narendera Publishing (supra), the Court placed partial reliance on
78
Economic Times, ‘I am Sophie’: 17-year-old from a small UP city’s Hindi-medium school builds AI robot
teacher that can teach any subject, The Economic Times (Nov. 29, 2025),
https://economictimes.indiatimes.com/news/india/i-am-sophie-class-12-student-from-a-small-up-citys-
hindi-medium-school-builds-ai-robot-teacher-that-can-teach-any-
subject/articleshow/125653059.cms?from=mdr.
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the four-factor test79 which is a part of the Copyright Act of 1976 of the United
States of America. The Court placed emphasis on the transformative character
of the use i.e. whether the purpose of the use is substantially different from
the purpose served by the prior work. It was also observed that if the use is
transformative, it will not serve as a market substitute of the original. Hence,
such use will not affect the market share of the original work. Based on the
above, the Court held that the defendant’s work can be said to be
‘transformative’ and hence, entitled to defence under Section 52(1)(a)(ii) of
the Copyright Act. The relevant paragraphs dealing with this aspect from
Narendera Publishing (supra) are set out below:
“34. One crucial test, of the four-factor test, as developed by the
American courts, is the transformative character of the use. The Courts
should in cases like the present ask whether the purpose served by the
subsequent (or infringing) work is substantially different (or is the
same) from the purpose served by the prior work. The subsequent
work must be different in character; it must not be a mere substitute,
in that, it not sufficient that only superficial changes are made, the
basic character remaining the same, to be called transformative. This
determination, according to the Court is closely knit with the other three
factors, and therefore, central to the determination of fair use. If the
work is transformative, then it might not matter that the copying is
whole or substantial. Again, if it is transformative, it may not act as a79
Section 107 – Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use
made of a work in any particular case is a fair use the factors to be considered shall include–
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon
consideration of all the above factors.
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market substitute and consequently, will not affect the market share
of the prior work.”
[Emphasis supplied]
224. The judgment in Narendera Publishing (supra) was taken up in appeal
by the plaintiffs before the Division Bench. The Division Bench80 decided the
said appeal along with another appeal dealing with Section 52(1)(h) [now
Section 52(1)(i)]. The Division Bench re-emphasized that the purpose of the
Copyright Act was to balance the rights of the author on one hand and the
society on the other. After referring to the judgments of US Courts dealing
with the aspect of fair use, the Division Bench held that the guidebooks used
by the defendant in B.D. Bhandari (supra), are in the nature of ‘derivative
works’. The guide books have a different purpose or character than the
original work of the plaintiffs/appellants. Hence, it was held that there was
no infringement. On this aspect, the observations of the Division Bench are
set out below:
“78. It follows from the above discussion that when a published work is
prescribed as text book, a ‘guide’ can be published provided it fulfils
the test of a ‘derivative work’. At the same time, this guide book has to
be materially different from the textbook. Guide book should not be
verbatim reproduction of the text book. If a guide book reproduces the
original work to a great measure without its contribution, it may amount
to plagiarism and may infringe the copyright law of the person in
original work. On the other hand, if guide book written in a different
format, albeit, dealing with the subject matter which is contained in
the original book, with a purpose to help, assist and support the
students, the problems given in the text book, then it would be a work
different from the original work. The guiding principle is to see as to
whether such guide book provides explanation and/or step by step
process for reaching the answer, detailed analysis of any problem with80
Syndicate of the Press of the University of Cambridge v. B.D. Bhandari, 2011 SCC OnLine Del 3215.
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the objective of making the task simpler in understanding the subject
provided in the textbook. In writing this guide book, if the
contribution of aforesaid nature is made, it may be treated as a work
which is somewhat different in nature. This is the crucial test which
is to be applied and has been characterized as the transformative
character of the use by the American Courts. Therefore, the task
would be to ascertain as to whether the purpose served by the guide
book is substantially different from the purpose served by the
textbook. If the guide book is different in character and not a mere
substitute of the original work/textbook, it would be treated as
transformative. However, the character must be substantially different
and it is not sufficient that superficial changes are made with basic
character of the textbook creeping in the guide book. In that eventuality,
it would not qualify as a work of transformative character. If this
derivative (sic) work in the guidebook has assumed different
character, it would not amount to infringement of the original work,
though it would have been drawn, to certain extent, from the original
work. And, in that sense, it would amount to ‘fair use’ as described in
Amazon. Com. Inc. (supra).
*** *** ***
119. We have already formulated the test for ascertaining as to whether
in a given situation publication of a guide book would be violative of a
copyright in a textbook in detail while dealing with RFA (OS) No. 21 of
2009. It is not necessary to repeat the same. Suffice is to state that it
will be permissible to publish a guide book if it qualifies the proper
description of a guide book and becomes a derivative work of the
author who has produced such guide book.”
[Emphasis supplied]
225. Based on the aforesaid findings, the judgment of the Single Bench in
Narendera Publishing (supra) was upheld by the Division Bench. The
Division Bench in B.D. Bhandari (supra) used the expression ‘derivative
work’ as opposed to the ‘transformative work’ used by Single Bench.
226. Mr. Ramanujan, Amicus Curiae, submits that the judgment in
Narendera Publishing (supra) applied the ‘transformative’ test in the context
of “review” under Section 52(1)(a)(ii) of the Copyright Act and not in the
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context of Section 52(1)(a)(i). In B.D. Bhandari (supra), the test finally
adopted under Section 52(1)(h) was whether a guidebook is a ‘derivative
work’ (used synonymously for ‘transformative work’). In paragraph 119 of
the Division Bench judgment in B.D. Bhandari (supra), the test of derivative
work was extended to Section 52(1)(a)(ii) also.
227. Even though Division Bench judgment in B.D. Bhandari (supra) is in
the context of Section 52(1)(a)(ii) of the Copyright Act, there is no reason why
the fair dealing principles discussed therein cannot be applied in the context
of Section 52(1)(a)(i).
228. In Rameshwari Photocopy Services (DB) (supra), the plaintiffs, who
were major publishing houses, claimed that the defendant, a photocopy
services shop situated within the precincts of Delhi School of Economics
(University of Delhi), was photocopying pages from the books published by
the plaintiffs. In the facts of the said case, the Court held that the defendant
was entitled to defence under Section 52(1)(h) as it existed then [now Section
52(1)(i)]. The Division Bench in Rameshwari Photocopy Services (supra)
also held that the concept of “fair dealing” would not be applicable in cases
involving Section 52(1)(i). In the Indian context, the concept of “fair dealing”
is only a part of Section 52(1)(a) of the Copyright Act and not the remaining
provisions of Section 52.
229. The Division Bench specifically noted that the four-factor test is a part
of the Copyright Act in United States of America (Section 107 of the US
Copyright Act). Therefore, it was held that the decisions of the Courts in US,
applying the aforesaid test, would have no persuasive value in the Indian
context.
230. In Blackwood v. A.N. Parasuraman (supra), cited by Mr. Adarsh
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Ramanujan, Madras High Court adopted a test for determining fair dealing
based on quantity and quality of the work that has been reproduced.
231. In ESPN Star Sports v. Global Broadcast News81, a Coordinate Bench
of this Court took note of the test laid down by the English Courts. In
paragraph 34, the Court observed that the following three factors have to be
considered for fair dealing:
“34. The test indicated in Ashdown was based on the Textbook “The
Modern Law of Copyright and Designs (3rd edn, 2000)” by Laddie,
Prescott and Vitoria. The court held that:
“the authors suggest that the success or failure of the defence
depends on three factors : (1) whether the alleged fair dealing is
in commercial competition with the owner’s exploitation of work,
(2) whether the work has already been published or otherwise
exposed to the public and (3) the amount and importance of the
work which has been taken.” ”
232. In Super Cassettes v. Chintamani Rao (supra), Coordinate Bench of
this Court observed that when assessing fair dealing, the Court must consider
proportionality and whether there is any intellectual input or any original
mental exercise undertaken by the defendant.
233. The Division Bench in India TV Independent News Service v. Yashraj
Films (supra), made an observation to the effect that “even in India, Fair Use
is determined on the same four factors” i.e. the four-factor test used in US.
However, in the said judgment, the Division Bench did not apply the four-
factor test but denied interim injunction to the plaintiff by applying the ‘de-
minimis’ principle.
234. From the abovesaid analysis of judgments of the Indian Courts on the
81
2008 SCC OnLine Del 1766.
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aspect of fair dealing, the position that emerges is that different Courts have
adopted different tests according to the facts and circumstances of the case
before them. There is no single test which has been adopted uniformly or
consistently by the Indian Courts. There is broad consensus amongst the
counsel in the present case also that the US four-factor test is not applicable
in India and there is no single uniform test for examining whether an act under
Section 52(1)(a) is fair dealing or not.
235. In light of the aforesaid, this Court shall attempt to formulate factors to
determine “fair dealing” which are suitable in the facts and circumstances of
the present case. Whether use by Open AI amounts to fair dealing or not is
ultimately a question of fact, degree and the overall impression carried by the
Court.
236. As discussed above, Section 52 of the Copyright Act balances the
author’s right and the public interest. Therefore, Court has to consider if the
training of LLMs by using the original literary works of ANI violates ANI’s
rights. To determine fairness, it has to be examined whether the aforesaid use
by Open AI of ANI’s works prejudice interests of ANI, resulting in
competition, actual or potential damage to ANI’s legitimate commercial
interests. Simultaneously, consideration must be given to the extent to which
the activities of Open AI serve broader public interests, including scientific
research, technological innovation, access to information, and the
dissemination of knowledge. Thus, in the facts and circumstances of the case,
in my opinion, the factors relevant for determining fair dealing can be
summarised as under:
a. Whether Open AI’s use of ANI’s original literary works is limited to
training its LLMs underlying ChatGPT?
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b. Whether the usage of ANI’s literary works by Open AI would result in
economic competition and would prejudice the legitimate interests of
ANI, thereby causing actual or potential damage to ANI?
c. Whether the functions performed by Open AI through ChatGPT serve
the overall public interest?
237. The first two factors examine how Open AI’s use of ANI’s works does
not affect the author’s rights, and the third factor examines whether functions
performed by Open AI serve public interest.
238. The aforesaid factors are broadly in line with the principles emerging
from Article 9 of Berne Convention for the Protection of Literary and
Artistic Works (1886) (hereinafter ‘Berne Convention’). Article 9 of the
Berne Convention which discusses the rights available to a copyright holder
and its possible exceptions is reproduced below:
Article 9 Right of Reproduction:
1. Generally; 2. Possible exceptions; 3. Sound and visual recordings
(1) Authors of literary and artistic works protected by this Convention
shall have the exclusive right of authorizing the reproduction of these
works, in any manner or form.
(2) It shall be a matter for legislation in the countries of the Union to
permit the reproduction of such works in certain special cases,
provided that such reproduction does not conflict with a normal
exploitation of the work and does not unreasonably prejudice the
legitimate interests of the author.
(3) Any sound or visual recording shall be considered as a reproduction
for the purposes of this Convention.
[Emphasis supplied]
239. The Statements of Objects of the Copyright (Amendment) Act, 198382
82
Statement of Objects and Reasons of Amendment Act 23 of 1983.–India is a member of the two
International conventions on copyright, namely the Berne Convention for the Protection of Literary and
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provides that the Copyright Act is in conformity with the Berne Convention.
240. Now, I proceed to examine the facts and circumstances of the present
case in light of the aforesaid factors.
a. Whether Open AI’s use of ANI’s original literary works is limited to
training its LLMs underlying ChatGPT?
241. It has already been observed in the findings in respect of Issue No.2
that ANI has not been able to establish memorization of data or its
regurgitation, or communication of the exact copies of ANI’s works to the
public.
242. The documents filed by Open AI (document nos. 8 and 9 of the
documents filed by defendant along with the reply to I.A. 43500 of 2024)
demonstrate that the LLMs underlying ChatGPT are not trained to reproduce
or communicate the training material to the public. Instead, the training
material enables it to generate new responses and perform novel tasks when
presented with novel prompts.
243. This Court has not been given any instance where Open AI has used the
literary works of ANI for any purposes other than for training. Hence, in my
opinion, it would be safe to conclude that the storage by Open AI is only for
the purposes of training Open AI’s LLMs underlying ChatGPT.
Artistic Works (1948 Brussels Text) and the Universal Copyright Convention (1952). The Copyright Act,
1957, conforms to the provisions of these two conventions.
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b. Whether the usage of ANI’s literary works by Open AI would result
in economic competition and would prejudice the legitimate interests
of ANI, thereby causing actual or potential damage to ANI?
244. ANI is a news agency that is in the business of collecting and
distributing news. ANI has engaged a team of professionals to collectively
produce original news content, which is published on ANI’s syndicated news
feed. The subscribers of ANI, which include news organisations, can access
the content posted on ANI’s syndicated news feed. A non-exclusive license is
granted to ANI’s subscribers, who can use ANI’s works for commercial
purposes, specifically excluding any right of further syndication of ANI’s
works. Apart from the revenue generated from these subscription and
licensing agreements, ANI earns by publishing the news articles on its
website, YouTube channel and other social media accounts. The user traffic
on its websites and social media channels is directly correlated to revenue
raised through advertising by ANI.83
245. On the other hand, Open AI’s ChatGPT is an application, which allows
the users to interact with LLMs. LLMs serve as tools for content creation,
research, language translation, learning and education, summarising,
paraphrasing, creation of images based on text description. ChatGPT is
available for free to all users. There is also an option for users to sign up for a
premium monthly subscription that makes additional features and capabilities
available. Open AI also offers an enterprise version for businesses to
purchase. The API (Application Programming Interface) version of Open AI
allows the developers to integrate the benefits of Open AI’s models into their
83
¶¶ 9-15 of the plaint.
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own application. The developers pay to access the API.84
246. As is evident from aforesaid, the functions performed by ChatGPT are
quite distinct from the functions performed by ANI. ChatGPT has
multifarious functions, whereas business of ANI is limited to news reporting
and syndication of news. In the context of news, ChatGPT only provides a
summary or snippets of the news articles or reports carried by ANI along with
a reference to its website. As held in Issue No.2, the expressions used are not
the same as used by ANI. Even when a user searches for daily news, the
responses given by ChatGPT are similar to that of an AI-enabled search
engine, using RAG technique to provide multiple sources for the snippets of
the news content. In sum, the purpose and character of use of copyrighted
works by Open AI is fundamentally different from that of the news articles of
ANI. Hence, it cannot be said that responses produced by ChatGPT are
substitutes for news articles published by ANI.
247. This view also finds support from the judgment of the United States
District Court for Northern District of California in Bartz v. Anthropic
(supra), wherein it has been observed that use of copyright to train LLMs was
essentially transformative:
” The copies used to train specific LLMs did not and will not
displace demand for copies of Authors’ works, or not in the way that
counts under the Copyright Act.
Instead, Authors contend generically that training LLMs will
result in an explosion of works competing with their works – such as by
creating alternative summaries of factual events, alternative examples
of compelling writing about fictional events, and so on. This order
assumes that is so (Opp. 22-23 (citing, e.g., Opp. Exh. 38)). But84
Document 8 of the documents filed by the defendant along with reply to I.A. No. 45300 of 2024.
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Authors’ complaint is no different than it would be if they complained
that training schoolchildren to write well would result in an explosion
of competing works. This is not the kind of competitive or creative
displacement that concerns the Copyright Act. The Act seeks to
advance original works of authorship, not to protect authors against
competition.
*** *** ***
In short, the purpose and character of using copyrighted works to
train LLMs to generate new text was quintessentially transformative.
Like any reader aspiring to be a writer, Anthropic’s LLMs trained
upon works not to race ahead and replicate or supplant them — but
to turn a hard corner and create something different. If this training
process reasonably required making copies within the LLM or
otherwise, those copies were engaged in a transformative use.”
[Emphasis supplied]
248. Similar observations were also made by the United States District Court
for Northern District of California in Kadrey v. Meta Platforms, (supra) i.e.
the purpose should be transformative:
“This factor favors Meta. There is no serious question that Meta’s use
of the plaintiffs’ books had a “further purpose” and “different
character” than the books that it was highly transformative. The
purpose of Meta’s copying was to train its LLMs, which are innovative
tools that can be used to generate diverse text and perform a wide
range of functions. Cf. Oracle, 593 US. at 30 (transformative to use
copyrighted computer code “to create a new platform that could be
readily used by programmers”) Users can ask Llama to edit an email
they have written, translate an excerpt from or into a foreign language,
write a skit based on a hypothetical scenario. or do any number of other
tasks. The purpose of the plaintiffs books, by contrast, is to be read for
entertainment or education.
The plaintiffs do not meaningfully disagree about Llama’s purpose.
To the contrary, they acknowledge that LLMs have “end uses”
including serving “as a personal tutor,” assisting “with creative
ideation,” and helping users “generate business reports.” And several
of the plaintiffs testified to using LLMs for various purposes, all distinct
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from creating or reading in expressive work like a novel or biography
for instance, to find recipes, get tax or medical advice, translate
documents, or conduct research. All of these functions are different
from the use to which the plaintiffs books are generally put. So
copying the books to develop a tool that can perform those functions
is a use with a different purpose and character than the books
themselves.”
[Emphasis supplied]
249. In Authors Guild v. Google85, the authors of published books filed a
copyright infringement action against Google claiming that Google made
digital copies of the books and allowed the public to search the texts of the
digitally copied books and see displays of snippets of the text, which
amounted to infringement of the copyright of the authors. The United States
Court of Appeals held that the more transformative the new work, the lesser
will be the significance of commercialism. In the said case, Google was
digitizing copyright protected works of authors. The Court held that the
purpose of copying is highly transformative as the public display of text is
limited and the activities of Google are not in the nature of market substitution
of the original books. The mere fact that the activities of Google are
commercial in nature and profit-motivated would not deny Google the
defence of fair use.
250. Except for bare averments, nothing has been placed on record on behalf
of ANI to show that they have lost any market share or there has been a
reduction in subscription revenues due to operations of Open AI.
251. Hence, in my prima facie opinion, the use of ANI’s works by Open AI
would not result in market substitution of ANI’s works and consequently, will
85
804 F.3d 202 (2nd Cir. 2015).
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not affect its market share or cause actual or potential damage to ANI.
c. Whether the functions performed by Open AI through ChatGPT
serve the overall public interest?
252. The public benefits flowing from such trained LLMs underlying
ChatGPT are considerable. They are designed to assist users in analysing and
generating text, improving access to information, supporting education,
assisting scientific research, facilitating software development, enabling
translation and communication, and creating tools for persons with
disabilities. The technology is also capable of supporting research, learning,
and knowledge dissemination at scale, thereby advancing science and the
useful arts in a broader societal sense.
253. Training LLMs underlying ChatGPT therefore contributes to
advancing scientific knowledge, developing innovative computational tools,
disseminating information, promoting education, enhancing accessibility, and
advancing artificial intelligence research. These objectives resonate with the
broader constitutional and statutory commitment to advancing knowledge and
learning. While the rights of copyright owners remain important, the societal
benefits arising from scientific and technological research constitute a
relevant consideration in assessing the fairness of a dealing.
254. Therefore, the factor of public interest also stands established.
255. Thus, on a prima facie view, all the factors for establishing the aspect
of fair dealing stand satisfied in the present case and the fairness test stands
fulfilled.
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FINDINGS
256. In light of the discussion above, both the purpose test as well as the
fairness test under Section 52(1)(a) stand fulfilled. Hence, in my prima facie
view, Open AI’s acts of storage of the literary works of ANI for the training
of its LLMs would fall under Section 52(1)(a) of the Copyright Act and hence,
would not amount to infringement.
BALANCE OF CONVENIENCE AND IRREPARABLE INJURY
SUBMISSIONS
Submissions on behalf of the Plaintiff (ANI)
257. Mr. Sidhant Kumar, counsel appearing on behalf of ANI made the
following submissions:
257.1. Open AI, by offering direct quotes and summaries of ANI’s work, is
diverting traffic from ANI’s website to ChatGPT thereby reducing the revenue
generated by ANI through advertisements. Open AI’s unlawful use and
storage of ANI’s works curtails ANI’s commercial avenues including the
ability to use AI to provide services including high level summaries of its
works.
257.2. Open AI has entered into licensing arrangements and strategic
partnerships with similarly-placed news agencies with articles, news and
other works in the training and response generation process. However, it has
consciously opted not to compensate ANI for using its data. Therefore, Open
AI is unjustly enriching itself at the expense of ANI.
Submissions on behalf of the Defendant (OPEN AI)
258. Mr. Amit Sibal, senior counsel appearing on behalf of Open AI made
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the following submissions:
258.1. The interim relief sought by ANI to delete the “plaintiff’s works held
and stored in whatever form” by Open AI would amount to grant of the final
relief sought in the suit. This would also be inconsistent with Open AI’s
obligation under the laws of United States of America to preserve such
training data.
258.2. ANI itself had offered Open AI a license to all its digital media video,
imagery, photographic and/or news content owned or within the control of
ANI for a fee of USD 7.5 million in terms of ANI’s letter dated 3 rd October
2024. Therefore, it is clear that the claim of ANI is quantifiable and ANI can
be compensated in monetary terms if ANI succeeds in the suit. On the other
hand, Open AI cannot be compensated in monetary terms if an interim
injunction is granted against Open AI, even if Open AI succeeds in the suit.
258.3. The AI platform of Open AI, i.e. ChatGPT, has transformed
information in new ways and is being used all around the world for a variety
of beneficial purposes. Any injunction granted would be detrimental to public
interest.
258.4. Without prejudice to their rights, Open AI has stopped ANI’s website
both for the purposes of training as well as RAG.
Intervenors supporting OPEN AI
i. Submissions on behalf of the Intervenor – Broadband India Forum (BIF)
(I.A. 10766/2025)
259. Mr. Arvind P. Datar, senior counsel appearing on behalf of the
intervenor in I.A. 10766/2025 made the following submissions:
259.1. Any injunction granted will have cascading effects for several LLM
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platforms as it would curtail access to information for LLM developers and
the public. It would also require an LLM to take multiple licenses with each
news agency, individual newspaper, magazine etc. Hence, when ANI has
chosen not to engage ‘paywalls’ or ‘crawler blockers’, no injunction can be
granted to access information that is freely available on the web.
259.2. Hindering access to publicly available data would degrade LLM’s
performance and stifle information as developers would struggle to improve
their AI models.
259.3. ANI has claimed damages in the suit and hence, no interlocutory
injunction should be granted in favour of ANI. The issues raised by ANI
would require large amount of evidence in the trial. Therefore, no injunction
should be granted in the absence of a trial.
Submissions of Professor Arul George Scaria, Amicus Curiae
260. Prof. Scaria made the following submissions:
260.1. In the event the Court finds that the Open AI is required to take a
license from ANI, it would be detrimental to the growth of LLMs and more
particularly, LLMs being sought to be developed in India.
260.2. While granting an interim injunction, the Court should consider the
two competing interests, i.e. protecting the interest of the authors and the
broader public interest in developing LLMs in India.
260.3. It is an undisputed fact that at least some users use ChatGPT for
gathering information about events and facts. Therefore, the Courts should
take a broader view so as to enable fulfilment of this broader purpose.
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Submissions of Mr. Adarsh Ramanujan, Amicus Curiae
261. Mr. Ramanujan made the following submissions:
261.1. ChatGPT is currently being used by millions of users in India and a
blanket injunction order passed by this Court would adversely affect the said
users.
261.2. Insofar as ANI seeks a direction that Open AI should obtain license
from ANI in respect of its works, it is demonstrative of the fact that ANI can
be compensated in monetary terms.
261.3. ANI is in a position to block its websites to prevent Open AI from
scraping data therefrom for training of its LLM as also for the purposes of its
search functionality.
DISCUSSION AND ANALYSIS
262. It is an admitted position that ANI has the ability to block its website
vis-Ã -vis any third-party including Open AI. The opting-out option is available
to ANI for blocking the third-party web crawlers from copying their data as
well as from scraping their website for the search function/RAG. Despite
having an option of opt-out, evidently ANI has not exercised the same. In fact,
it has been stated on behalf of Open AI that it has internally blocked ANI’s
website from its web crawlers or bots for the purposes of scraping of data.86
During the course of oral submissions Open AI has also submitted that Open
AI itself has blocked ANI’s website from ‘ChatGPT search function/RAG’.
263. ANI contends that there are various paid subscribers of ANI, whose
websites carry the copyrighted data of ANI and Open AI can still access and
copy ANI’s copyrighted data from the aforesaid websites. Even if that be so,86
Document 21 of the plaintiff’s documents filed along with the plaint.
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it would be open for the subscribers of ANI also to block their websites to
Open AI. Clearly, if they have chosen not to do so, it could be possibly for
their own commercial reasons.
264. There is no averment in the plaint nor has any material been placed on
record to show that the activities of Open AI have resulted in ANI losing
subscribers or suffering a loss from its news syndication business.
265. ANI itself has offered a license to Open AI for its content for a fee of
USD 7.5 million vide its communication dated 3rd October 2024.87 Therefore,
the claim of ANI is quantifiable and ANI can be compensated in monetary
terms, if ANI succeeds in the present case. On the other hand, if there is an
injunction granted against Open AI, it would have a significant effect on its
functioning, which may not be possible to be compensated in monetary terms.
266. There is yet another aspect of public interest for not granting an interim
injunction in favour of ANI and against Open AI. As discussed earlier,
Artificial Intelligence (AI) including generative AI has brought about a
transformational change in the lives of the people all over the world, including
India. It has completely revolutionized the manner in which people seek and
obtain information.
267. As noted earlier, AI and its applications are being used beneficially in
several sectors, such as education, healthcare, financial support sector,
agriculture and for providing other skill development resources. [Ref. AI for
Inclusive Societal Development, October 2025 – Niti Aayog paper at page
7389 of Pleadings Vol. 6]
268. The key to success of an AI model is to access the information in public
87
Document 24 of the plaintiff’s documents filed along with the plaint.
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domain. The development of LLMs and their success depends on availability
of data. It would be economically unviable to develop an LLM if training of
an LLM would require licenses from multiple sources.
269. Any interim injunction granted at this stage would, in my opinion, be
detrimental to the growth of AI and more particularly, to the LLMs being
developed in India. It would also have adverse impact on public interest,
including millions of users of ChatGPT in India, many of whom would not be
paid subscribers. Public interest is an important aspect or the fourth factor that
the Courts have to consider while granting interim injunction, more
particularly in intellectual property cases. [Pls. see. Zydus Lifesciences v.
E.R. Squibb88; F-Hoffman-La Roche AG v. NATCO Pharma89; Astrazeneca
AB and Ors. v. Intas Pharmaceuticals Limited90].
FINDINGS
270. In light of the aforesaid analysis, on the touchstone of balance of
convenience as well as irreparable loss and injury, this Court is not inclined
to grant an interim injunction this stage.
CONCLUSION
271. Based on the discussion above, I am of the prima facie view that Open
AI’s act of storing ANI’s original literary works for training LLMs underlying
ChatGPT falls under Section 52(1)(a) of the Copyright Act and therefore, does
not amount to infringement under Section 51 of the Copyright Act. I am also
of the prima facie view that the outputs generated by ChatGPT using RAG
88
FAO(OS) (COMM) 120/2025, decided on 12 th January 2026.
89
CS(COMM) 567/2024, decided on 24th March, 2025.
90
2020:DHC:3125.
Signature Not Verified
Signed By:VIVEK CS(COMM) 1028/2024 Page 134 of 135
MISHRA
Signing Date:24.07.2026
17:17:24
technique does not amount to infringement under Section 51 of the Copyright
Act since the outputs generated by Open AI were not substantially similar to
ANI’s original literary works. Further, ANI has failed to satisfy this Court that
any memorization and regurgitation of ANI’s original literary works has
happened through the responses generated by ChatGPT.
272. In view of the discussion above, ANI has failed to make out a prima
facie case for grant of interim injunction. Balance of convenience is also
against grant of interim injunction. Irreparable injury would be caused not
only to Open AI but also to the public at large, if an interim injunction is
granted in favour of ANI at this stage.
273. Accordingly, I.A. 45300/2024 is dismissed.
274. Needless to say, any observations made herein are only for the purpose
of adjudication of the aforesaid application and would have no bearing on the
final outcome of the suit.
275. I would like to express my sincere appreciation to all the learned
counsel who appeared in the matter as well as the learned Amici Curiae who
rendered invaluable assistance to the Court in rendering this judgment.
AMIT BANSAL
(JUDGE)
JULY 24, 2026
Vivek/-
Signature Not Verified
Signed By:VIVEK CS(COMM) 1028/2024 Page 135 of 135
MISHRA
Signing Date:24.07.2026
17:17:24
