In this age of technology, there has been a great rise in innovation and development, but at the same time it has also led to the rise in complicated cybercrimes. Recently the Delhi Police registered an FIR against the Aam Aadmi Party for using AI to make fake photos and videos of Prime Minister Narendra Modi and home minister Amit Shah. The clips shown in the X account of AAP showed altered footage of a Bollywood movie.1 Earlier, similar incident was happened with renowned businessmen of Indian industry- Reliance chairman Mukesh Ambani and Infosys co-founder Narayan Murthy.2 This type of incidents has become rampant nowadays, necessitating for stringent steps to preserve the circulation of misinformation through deepfakes.
Overview of Deepfake
Deepfakes, a form of artificial intelligence (AI) using Generative Adversarial Networks (GANs), have surfaced as a technology capable of producing practical digital impersonations and manipulating reality.3 The term 'deepfake' was first created by a Reddit user who applied 'face-swapping' technology to overlay the faces of celebrities onto non-consensual pornography videos.4 Deepfake is a technology that can interchange faces and add voices to videos and audio recordings, which are developed through GAN. Deepfakes, while significantly used for wrong purposes, holds capacity to perform innovative work within various sectors. Like in entertainment industry, it can be utilized for recreating deceased actors or in education and training industry by making the concept more engaging & interesting. But on the other hand, it can be used as a powerful tool by individual or group with the malicious intent to spread misinformation and cause distrust in the public. Notwithstanding its positive effect & significant use, concerns are continuously arising regarding its rapid circulation on social media platforms.
Intersection of Copyright and Deepfakes
The status quo of the challenges posed by the intersection of AI-generated content and IPR laws are still blurred, reigniting the current debate regarding the treatment of AI-generated work. There are numeroustrademarkandcopyrightissues hovering over AI-generated content. From copyright infringement lawsuit against OpenAI to pursuing trademark claims for misrepresentation through deepfake technology,5 there are several cases persists of AI and deepfakes intersecting with IPR Laws. There are twoprimaryargumentssurroundingcopyright and deepfakes. Initially, identify the 'Author' or 'Creator' of deepfakes, followed by how copyright law tackles the issues raised by this technology.
Copyright is nothing but the legal right granted to the creator so that the creator can possess the full ownership and holds power to reproduce and distribute the product as per their volition. In other ways, it is the right provided to the creator to make copies. Even others can also copy the same after taking authorization from the creator. There are certain key elements that creator has to achieve to become eligible for copyright protection i.e. Originality, Creativity and fixation. However, there is no clear framework to determine who could be the creator for deepfake work that leads to uncertainty in assigning copyright.If we look section 2(d)(vi) of Indian Copyright Act6, it defines author as a person who uses the technology to create AI generated picture. It means after properly analyzing the definition of word "creator", there are two possible interpretations that could be made-
- for deepfake software – an individual who created the program.
- for person – who employs or used any existing program to achieve their objective.
Moreover, it is still a debatable topic whether content generated by AI is copyrightable or not. In Case of 'Najma Heptulla v. Orient Longman case'7, Supreme Court (SC), while addressing the intricacies of authorship and ownership, stated that only natural person who possess necessary skill and labor are entitled for copyright protection. On the contrary, India made a forward leap by granting copyright protection to RAGHAV (which became the first technologically driven AI application) as co-author for its work 'suryast8' along with Ankit Sahni but this decision was challenged and was revoked by copyright office.9 Deepfake content, generally, are liable for copyright infringement as all the creations in the deepfake are derived from images and artwork of other artist. A majority of these content are copyrighted and thus, persistent unauthorized use may lead to legal issues.
Fair Use and its Exemption
Yet, it is still doubtful whether copyright law is the only recourse to the problems created by deepfakes. In India, the concept of fair dealing has been mentioned under section 52 of Indian Copyright Act, 195710 which specifically outlined the categories of works that are exempted from being coming under the ambit of Copyright infringement. While this might be useful in tackling deepfake content made or circulated with malicious intent, but it would not be beneficial to safeguard the legitimate use of deepfake technology. This mainly prevails due to flexibility of the term 'review' mentioned under section 52(1)(a)(ii)11 of the act, which leaves on the discretion of the court to provide protection to works that are considered beneficial for the society at large. If we compare these provisions with other countries mainly with US or UK, India's stance regarding fair use is mainly more rigid and exhaustive as compared to the fair use doctrine of other two nations. This rigidity renders India unable to tackle emerging issues such as deepfake, making us lag behind the US or UK, where outlined framework provides them larger scope to balance the need12.
In addition, authors are vested with moral right to assert authorship of their work and to seek damages for any unauthorized act in relation to the aforementioned work as mentioned under section 57 of Indian Copyright Act13. These rights align with the principles of the Berne Convention and seek to safeguard the author's dignity and reputation. However, section 55 and 63 of the acts discuss about civil remedies along with penal provision if actions go contrary to mentioned provisions in the act14.
On similar footing, section 79 of IT Act, 200015 grants protection to intermediaries from any liability for third party content. It has been pointed out in the case of 'Myspace Inc. v. Super Cassettes Industries Ltd.'16, the court while interpreting the provision of ICA and IT act, held that intermediaries may be held liable for copyright infringement. Despite this, it is still a challenging task to identify deepfake content and making it enforceable under moderation policies for removal.17
The rise of deepfakes presents a complex issue for India's social and legal framework. Now, it becomes important to strike a balance while safeguarding the Individuals privacy rights (as stated in Puttaswamy judgement), personality rights, and freedom of expression. It encompasses broader spectrum of concerns that can have various legal and ethical implications which directly leads to infringement. Regarding the copyright laws prevalent in India and other countries, it concludes that a flexible and more balanced legal system is needed to accommodate both the rights of creator and the positive uses of deepfake technology.
Footnotes
1 THE ECONOMIC TIMES, < https://economictimes.indiatimes.com/news/elections/assembly-elections/delhi/fir-against-aap-for-posting-ai-generated-videos-of-modi-shah-on-x/articleshow/117245976.cms?from=mdr> (last visited Jan. 21, 2025).
3 Neeraja Seshadri, Implications of Deepfakes on Copyright Law (World Intellectual Property Organization, 2020) < https://www.wipo.int/export/sites/www/about-ip/en/artificial_intelligence/conversation_ip_ai/pdf/ind_seshadri.pdf?cv=1> (last visited Nov. 11, 2025)
4 Vaishnavi Kulkarni and Bhanusshre Sivaramachandran, Tackling the Multifaceted Legal Dilemmas of Deep Fake Technology, SCC Online 1(2024).
5 Tori Guidry, 'OPENAI SUED AGAIN IN A STAR-STUDDED COMPLAINT: John Grisham And George R.R. Martin Amongst Authors Suing OpenAI In A Major Class Action' (The National Law Review, 2023).
6 Indian Copyright Act, 1957, § 2, No. 14, Acts of Parliament, 1957 (India).
7 Najma Heptulla v. Orient Longman case [1997] 1 SCC 600.
8 India Recognizes AI as Author of a Copyrighted Work (Lex Campus, 2021)
< https://www.lexcampus.in/india-recognises-ai-as-author-of-a-copyrighted-work> (last visited on 22 Jan. 2025).
9 Shristi Ohja, who owns AI-generated works? Here's what the laws say on Copyright issue (India Today, 2023) < https://www.indiatoday.in/law/story/chatgpt-ai-generated-content-copyright-ownership-complexities-india-2439165-2023-09-22> (Last visited on 22 Jan, 2025).
10 Supra note 6, § 52.
11 Id.
12 Akhtar Hussain, DeepFakes: A Challenge to Copyright Law, SCC Online (2023).
13 Supra note 6, § 57.
14 [14] Id. § 55, § 63.
15 Information technology Act, 2000, § 79, No. 21, Acts of Parliament, 2000 (India).
16 Myspace Inc v Super Cassettes Industries Ltd (2016) SCC OnLine Del 6382.
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