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Women’S Rights And Law (Dr. B. R. Ambedkar Open University)

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TC006

VII SURANA & SURANA AND SHAASTRA IIT MADRAS INTELLECTUAL

PROPERTY MOOT COURT COMPETITION

Before
THE HON’BLE HIGH COURT OF HILED
Ordinary Original Civil Jurisdiction

Civil Suit (Commercial) No. _____/2024

SAMAY SINHA …………………………………………………PLAINTIFF

v.
EPIONA PRIVATE LIMITED ………………………………..DEFENDANT

MEMORIAL for the DEFENDANT

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TABLE OF CONTENTS

STATEMENT OF JURISDICTION ............................................................................................... 6

STATEMENT OF FACTS ............................................................................................................... 7

STATEMENT OF ISSUES .............................................................................................................. 8

SUMMARY OF PLEADINGS ........................................................................................................ 9

ARGUMENTS ADVANCED......................................................................................................... 10

ISSUE 1: Whether this Hon’ble High Court has the jurisdiction to entertain the present matter .... 10

ISSUE 2: Whether the Plaintiff’s materials fall under the ambit of copyright protection............... 12

ISSUE 3: Whether Defendant’s use of Plaintiff’s work constitutes copyright infringement .......... 15

a)Training process does not infringe the copyright protection granted to the Plaintiff ................ 16

b) There is no substantial similarity .......................................................................................... 17

ISSUE 4: Whether Defendant’s use of Plaintiff’s work falls under fair use .................................. 18

ISSUE 5: Whether the Plaintiff is entitled to Damages and Injunctions against the Defendant...... 18

PRAYER ........................................................................................................................................ 18

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INDEX OF AUTHORITIES

Statutes
1. The Copyright Act 1957
2. Code of Civil Procedure 1908
3. The Commercial Courts Act 2015
4. Delhi High court Act 1966
5. Madras High Court Act 1927
6. Delhi High Court Intellectual Property Rights Division Rules 2021
7. Specific Relief Act 1963

Case laws
Akuate Internet Services Pvt. Ltd. & Others v Star India Pvt. Ltd 2013 SCC OnLine

Del 3344

Andy Warhol Foundation for the Visual Arts, Inc. v Goldsmith No. 21–869, 87

Authors Guild v Google, Inc 804 F.3d 202, 215-16 (2d Cir. 2015)

Banyan Tree v Murali Krishna Reddy MANU/DE/3072/2009

Bela Goyal Proprietor of ISPAT Sangrah v Vipul - MIPL JV (Jaipur) & Ors

CS(COMM) No. 1217/2018

Blanch v. Koons 467 F.3d 244, 254 (2d Cir. 2006)

Burlington Home Shopping v Rajnish Chibber 61 (1995) DLT 6

Cable News Network Inc v Ctvn Calcutta Television Network Pvt. Ltd. 2023 SCC

OnLine Del 2436

Campbell 510 U.S. at 580

Chancellor Masters and Scholars of the University of Oxford v Narendra

Publishing House, 2008 SCC OnLine Del 1058

Copinger & Skone James, Copyright, (2010)

Cutler v Enzymes, Inc Case Number C 08-04650 JF (RS), 5

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Dalpat Kumar v Prahlad Singh (1992) 1 SCC 719, 721

Dymow v Bolton, 1.1 F.2d 690, 691 (2d Cir. 1926)

Eagle Services Corp. v H20 Industrial Service 532 F.3d 620, 625 (7th Cir. 2008)

Eastern Book Company v D.B. Modak (2008) 1 SCC 1

Field v Google Inc. 412 F. Supp. 2d 1106, 18

Folsom v. Marsh 9 F. Cas. 342, 348 (C.C.D. Mass. 1841)

Google LLC v Oracle Am 141 S. Ct. 1183, 1190 (2021) (quoting Campbell v Acuff-

Rose Music, Inc. 510 U.S. 579 (1994)

Gopal Das v Jagannath Prasad AIR 1938 All 266

Harman Pictures, NV v Osborne [1967] 1 WLR 723

Harper & Row, Publishers, Inc. v Nation Enterprises 471 U. S. 539, 546 (1985)

Hasmukhbhai Bhagwanbhai Patel v Husenali Anwarali Charaniya

MANU/GJ/1346/2023

Herbert Rosenthal Jewelry Corp. v Kalpakian 446 F.2d 738

Holmes v Hurst (1898) 174 U.S. 82

Kelly v Arriba Soft Corporation 336 F.3d 811 (9th Cir. 2003)

Kitchens of Sara Lee, Inc. v Nifty Foods Corp 266 F.2d 541, 544 (2d Cir. 1959)

M/s Blackwood and Sons Ltd and Others v A.N. Parusuraman and Others AIR 1959

Mad 410

M/s Mishra Bandhu Karyalaya & Others v Shivaratanlal Koshal AIR 1970 MP 261

Manoramabai Moreshwar And Ors. v Ibrahim Khan Bismilla Khan and Ors AIR

1969 Bom 366 (Para 10)

MCA, INC. v Wilson 677 F. 2d 180, 183 (CA2 1981)

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New Moga Transport Co. through its Proprietor Krishan Lal Jhanwar vs. United

India Insurance Co. Ltd and others AIR 2004 SC 2154

Perfect 10, inc. v Google Inc 508 F.3d 1146 (9th Cir. 2007)

R.G. Anand v M/s. Delux Films (1978) 4 SCC 118

Rai Toys Industries v Munir Printing Press 1982 PTC 85

Sheldon v. Metro-Goldwyn Pictures Corp 81 F.2d 49 (2d Cir.)

Shipman v RKO 100 F.2d 533, 538 (2d Cir. 1938)

Sony Corporation of America v Universal City Studios, Inc 464 U.S. 417, 433

(1984) Para 107

Stewart v Abend 495 U. S. 207, 236 (1990)

Toys ‘R’ Us v Step Two 318 F.3d 446 (3rd Cir, 2003)

Trifari, Krussman Fishel, Inc. v B. Steinberg-Kaslo Co. 144 F. Supp. 577, 580

(S.D.N.Y. 1956)

University of London Press Ltd. v University Tutorial Press Ltd [1916] 2 Ch. 601

V. Govindan v E.M. Gopalakrishna Kone AIR 1955 Mad 391

Vinay Vats v Fox Star Studios India MANU/DE/1488/2020

Wiley Eastern Ltd & Ors v Indian Institute of Management 61(1996) DLT 281

(DB)

Books

1. Mohri M, Rostamizadeh A, Talwalkar A. Foundations of machine learning. MIT

press; 2018 Dec 25

2. Copinger & Skone James, Copyright, (2010)

3. William Cornish, Clarendon Law Lectures : Intellectual Property-Omnipresent,

Distracting, Irrelevant (1st edn, Oxford University Press 2005)

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Articles

Term Frequency’ (Market Muse, 2023) https://blog.marketmuse.com/glossary/term-

frequency-definition/ accessed on 16 December 2023

Research Papers

1. Michael Veale, Governing Machine Learning that Matters 33 (2019) (Ph.D.

dissertation, University College London),
https://discovery.ucl.ac.uk/id/eprint/10078626/1/thesis_final_corrected_mveale.pdf

2. Mohri M, Rostamizadeh A, Talwalkar A. Foundations of machine learning. MIT

press; 2018 Dec 25.

3. Robert Y. Libott, ‘Round the Prickly Pear: The Idea-Expression Fallacy in a Mass
Communications World’ in Un 14 UCLA L. REV. at 739.

4. Zechariah Chafee, ‘Reflections on Copyright Law: I’ in 45 Columbia Law Review

503, 513-14 (1945)

5. Michael Veale, Governing Machine Learning that Matters 33 (2019) (Ph.D.

dissertation, University College London),
https://discovery.ucl.ac.uk/id/eprint/10078626/1/thesis_final_corrected_mveale.pdf

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STATEMENT OF JURISDICTION

The Counsel for the Defendant hereby submits the memorandum to jurisdiction of this Hon’ble

High Court invoking Section 62 of the Copyrights Act, 1957 and Section 20 of the Code of

Civil Procedure.

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STATEMENT OF FACTS

1. The Plaintiff, Mr. Samay Sinha, a resident of Kolkata, a celebrated literary luminary has

published his works in various genres and demographics. His contribution to the literary

community has garnered him with several accolades, including the Sahitya Akademi Award.

2. The Defendant, Epiona Private Limited is incorporated in Chennai and engages in

development and selling of artificial intelligence products including creating Large

Language Models (LLM) including different versions of Integrated Creative Pre-

Conditioned Metamorphoser (IntCPM), inter-alia, such as CPM-1, CPM-2, CPM-3 and

CPM-4, which are trained to provide a realistic, desired output, with the information

extracted from each piece of text. Online activities are also engaged within the jurisdiction

of Hiled.

3. The Plaintiff, in his Cease and Desist notice dated, 16th November 2023, raised several

allegations in relation to copyright infringement, inter alia copying extensive text from the

Petitioner’s material for training datasets, and the illegal ingestion of copyrighted material

of the Plaintiff.

4. The Defendant, in the reply notice dated 14 December, 2023, categorically denied the

allegations, stating that a publication and its utilization is deemed to be accessible to the

general public. Further, they asserted that there was neither substantial similarity between

the output of IntCPM to the copyrighted of the Plaintiff.

5. The Plaintiff then resolved to file a suit before the High Court of Hiled against the

Defendants claiming injunction, compensation and damages for the alleged illegal use of

his copyrighted material.

6. The suit lies before this Hon’ble Court for adjudication.

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STATEMENT OF ISSUES

ISSUE I
Whether the Hon’ble High Court of Hiled has Jurisdiction to entertain the instant matter

ISSUE II
Whether the Plaintiff’s copyrighted material falls within the ambit of copyright protection

ISSUE III
Whether Defendants’ use of the Plaintiff’s copyrighted work constitutes copyright
infringement

ISSUE IV
Whether Defendants’ use of the Plaintiff’s copyrighted work falls under fair use

ISSUE V
Whether the Plaintiff is entitled to Damages and Injunction against the Defendant

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SUMMARY OF PLEADINGS

ISSUE 1: Whether this Hon’ble High Court has the Jurisdiction to entertain the instant
matter
The Defendant respectfully submits that this Hon’ble Court does not possess jurisdiction to

entertain the present matter as the Defendant’s principal office in located in Chennai. It is

submitted that the Madras High Court has Original Civil Jurisdiction and is the proper forum.

ISSUE 2: Whether the Plaintiff’s materials fall within the ambit of copyright protection

It is humbly submitted that the Defendant’s work squarely fall under the ambit of copyright

protection for it categorically fulfils the originality requirement since sufficient time, labour

and skill has been expended in making the compilation and the reproduced works.

ISSUE 3: Whether Defendant’s use of Plaintiff’s materials constitutes infringement

The Defendant hereby, respectfully submits that the Defendants usage of the Plaintiff’s

materials does not constitute infringement for various reasons, inter-alia, including that it does

not replicate the protected expression.

ISSUE 4: Whether Defendant’s use of Plaintiff’s work falls under Fair use

The defendant humbly submits that his work is transformative and not commercial. Further, it

satisfies the requirements of fair use doctrine, namely, nature, purpose of the work, the amount

of substantial similarity and finally, the effect on the market.

ISSUE 5: Whether the Plaintiff is entitled to damages and injunctions

It is respectfully submitted that the Defendant’s work is squarely covered under the doctrine of

fair use and the prayer grant injunction is unjustifiable. The overarching defence of fair use

against the plaintiff’s blanket allegations requires that the damages be not awarded.

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ARGUMENTS ADVANCED

ISSUE 1: Whether this Hon’ble High Court has the jurisdiction to entertain the
present matter

1. Section 20 of the Code of Civil Procedure, 1908, is concerned with the court within whose

jurisdiction a suit is to be instituted and normally, the lis is to be instituted in the court within

the local limits of which, the Defendants reside or carry on business or personally works for

gain.1 The explanation appended to Section 20 of the Code of Civil Procedure, 1908,

perspicuously states that a corporation shall be deemed to carry on business at it’s principal

office or at it’s subordinate office as well in case, any cause of action arises thereat. The

Supreme Court has vividly observed that the term corporation is a term of wide import which

includes a company. 2

2. The Apex Court has held that, the explanation appended to Section 20 of Code of Civil

Procedure is sundered into two parts (i) before the word “or” appearing between the terms

“office in India” and “in respect of”, and (ii) the other thereafter.3 It further held that the

explanation’s first part applies to only such corporation which has it’s sole or principal office

at a particular place, and in such cases, the court within whose jurisdiction the principal or

sole office is located shall have jurisdiction to entertain the lis and the latter part applies

where the Defendant not only has a sole office, but also a subordinate office at another place.

The Hon’ble Delhi High Court has held that explanation appended to Section 20 makes it

1
Manoramabai Moreshwar And Ors. v Ibrahim Khan Bismilla Khan and Ors AIR 1969 Bom 366

2
New Moga Transport Co. through its Proprietor Krishan Lal Jhanwar vs. United India Insurance Co. Ltd and
others AIR 2004 SC 2154

3
ibid

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clear that a company is presumed to operate from where principal office is located.4

Therefore, it is respectfully submitted that this suit be dismissed since the Defendant’s

principal office is located in Chennai.

3. The Hon’ble Delhi High Court has emphasised that mere accessibility of website, sans any

commercial activity, fails to establish cause of action. 5 More so, in a landmark case

involving online presence, the Hon’ble High Court applied the “purposeful availment”

approach and accordingly observed that the mere fact that a website is interactive does not

provide sufficient cause of action in a jurisdiction in which the Defendant has not engaged

in a commercial transaction.6 The United States Court in Toys ‘R’ Us v Step Two7 went

ahead to opine that mere operation of a commercially interactive website ought not to

subject the operator to jurisdiction anywhere in the world; rather it must be proved that the

Defendant purposefully availed itself of conducting activity in the forum state. Wherefore,

it is respectfully submitted that the instant case, not be entertained by this Hon’ble Court.

4. Further, the Gujarat High Court has glaringly clarified that the lawmakers never intended to

make the parties to travel to farther places for agitating their grievance in respect of the fact

that Section 62 of the Copyright Act only provides an additional forum. 8 Further, in the

Banyan Tree’s case , the Hon’ble High Court observed that, for the purposes of Section 20

of Code of Civil Procedure, it should be shown that, the website, whether euphemistically

termed as passive plus or interactive specifically targeted viewers in the forum state.

4
Cable News Network Inc v Ctvn Calcutta Television Network Pvt. Ltd. 2023 SCC OnLine Del 2436

5
Banyan Tree v Murali Krishna Reddy MANU/DE/3072/2009

6
Toys ‘R’ Us v Step Two 318 F.3d 446 (3rd Cir, 2003)

7
Ibid

8
Hasmukhbhai Bhagwanbhai Patel v Husenali Anwarali Charaniya MANU/GJ/1346/2023

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ISSUE 2: Whether the Plaintiff’s materials fall under the ambit of copyright
protection

5. Section 13 of the Copyright Act, 1957 expressly provides that copyright shall subsist in

“original works”9.The legal standard of originality was established through the historic

verdict in University of London Press v. University Tutorial Press, 10 in the form of a

doctrine, which popularly came to be called as “sweat of the brow”. In the aforementioned

case, it was glaringly enumerated that, copyright subsists in a work due to the skill and

labour expended on the work, rather than, due to inventive thought. It is thus trite law that,

the condition of originality stands satisfied merely if sufficient labour, skill, capital and

effort has been applied in the work.

6. This “sweat of the brow” doctrine was adopted in India as evidenced by the decision of the

Delhi High Court11 in which, it held that a compilation of addresses would be an original

literary work by virtue of factors such as devotion of time, labour and skill in creating the

compilation from many common sources such as telephone directories and other public

sources. In the instant matter, the Defendant fulfils the above thresholds. Therefore, it is

respectfully submitted that the outputs produced by IntCPM are entitled to copyright

protection.

7. The Allahabad High Court in Gopal Das v. Jagannath12 while considering two books written

on the same theme, held that a compiler of a work which lacks absolute originality, would

9
The Copyright Act 1957, s 13

10
University of London Press Ltd. v University Tutorial Press Ltd [1916] 2 Ch. 601

11
Burlington Home Shopping v Rajnish Chibber 61 (1995) DLT 6

12
Gopal Das v Jagannath Prasad AIR 1938 All 266

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be entitled to use the works forming a part of the compilation, provided he expends sufficient

labour and subjects the same to revision, so as to provide the original result. Likewise, in V.

Govindan,13 the Hon’ble Court held that even a small amount of originality is entitled to

protection in case of compilation. The Hon’ble Delhi High Court in Rai Toys Industries,14

recognised the skill and labour employed in creation of Tambola Ticket compilation.

8. The phrase “word frequency” refers to the measurement of occurrence of a particular word

in a given dataset.15 It is respectfully submitted that statistical information relating to word

frequencies fall beyond the scope of copyright protection. The underlying reason being that,

words themselves are not entitled to copyright protection. Authority may be cited from the

decision in Holmes v. Hurst,16 where it was held that copyright does not secure a right to the

use of certain words, because they are common property of the human race. In addition to

the above, it is settled position of law that an individual cannot register individual words or

brief combination of words, notwithstanding the novelty or distinctiveness of the words, or

which may lend itself into a play of words.17 Thus, in light of the above position of law, it

is respectfully submitted that copyright protection does not extend to statistical information

relating to word frequencies.

9. A catena of cases have laid down extensive jurisprudence with respect to the ambit of

copyright protection. One who borrows the basic plot or theme of a work will be taking only

an unprotected idea.18 Lord Justice Salmon opined that there can be no copyright in an idea

13
V. Govindan v E.M. Gopalakrishna Kone AIR 1955 Mad 391

14
Rai Toys Industries v Munir Printing Press 1982 PTC 85

15
‘Term Frequency’ (Market Muse, 2023) https://blog.marketmuse.com/glossary/term-frequency-definition/
accessed on 16 December 2023

16
Holmes v Hurst (1898) 174 U.S. 82

17
Kitchens of Sara Lee, Inc. v Nifty Foods Corp 266 F.2d 541, 544 (2d Cir. 1959)
18
Zechariah Chafee, ‘Reflections on Copyright Law: I’ in 45 Columbia Law Review 503, 513-14 (1945)

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or concept, but it subsists in int’s expression. In one of the landmark judgments, the Hon’ble

Supreme Court has held that themes and plots are not entitled to copyright protection. 19

Further, the Hon’ble High Court has held that copyright do not protect ideas, but they deal

with the particular expression of ideas.20 The Delhi High Court has in another case held that

themes and plots are not “exclusive province” of the author.21 Justice Hand, is of the opinion

that there is a point at which the similarities of the Plaintiff’s and the Defendant’s works are

so little concrete and thus, so abstract, that they become only the theme, idea or skeleton of

the plot, which are always in the public domain. 22 Further, Libott is of the opinion that terms

such as “themes” or “plots” are appended to idea to show what sort of writings are beyond

the pale of copyright protection. 23 Further, in Dymov v. Bolton, it was held that even if the

Defendant copied the plaintiff’s plot, he did not infringe, for copyright does not protect

fundamental plots.24 As is evident from the above position of law, it is clear that themes and

plots are beyond the ambit of copyright protection.

10. Justice Hand, in a pivotal case categorically held that Defendants were free to use not only

the materials which the Plaintiffs did not originate, but even, the plaintiff’s contribution

itself, if they drew from it more general patterns and kept away from expressions. 25

19
R.G. Anand v M/s. Delux Films (1978) 4 SCC 118
20
M/s Mishra Bandhu Karyalaya & Others v Shivaratanlal Koshal AIR 1970 MP 261
21
Vinay Vats v Fox Star Studios India MANU/DE/1488/2020
22
Shipman v RKO 100 F.2d 533, 538 (2d Cir. 1938)

Robert Y. Libott, ‘Round the Prickly Pear: The Idea-Expression Fallacy in a Mass Communications World’ in
23

Un 14 UCLA L. REV. at 739

24
Dymow v Bolton, 1.1 F.2d 690, 691 (2d Cir. 1926)

25
Sheldon v. Metro-Goldwyn Pictures Corp 81 F.2d 49 (2d Cir.)

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Therefore, the syntactic patterns within a said work falls beyond the ambition copyright

protection.

ISSUE 3: Whether Defendant’s use of Plaintiff’s work constitutes copyright

infringement

11. Copyright infringement must be tested on the breath of Section 51 26 of the Act which states

when an infringement to a protected material is made. However, Indian courts have applied

various doctrines to evolve various methods of evaluating the same.

12. When there are only claims to ownership of copyright 27 without any other legitimate claim,

the suit falls short of consideration and thus, must be dismissed at the threshold. The Plaintiff

fails to identify which of his copyrighted works have been allegedly infringed and has made

a blanket allegation of copyright infringement on the Defendant. The Plaintiff relies on the

summary reproduced by IntCPM which is again, not similar to the work of the Plaintiff as

already established by the Defendant.

13. It is categorically stated by the Plaintiff that IntCPM provided accurate summaries of his

books.28 Summaries are centralized on the idea of the work and does not replicate the

protected expressions. If the contention of the Plaintiff is considered, there will be limited

freedom in the Intellectual Property sphere. The Defendant’s work is thus independent from

the author’s original work.

26
The Copyright Act 1957, s 51
27
Cutler v Enzymes, Inc Case Number C 08-04650 JF (RS)
28
Undisputed Facts

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14. To test whether brazen word to word copying is done, it is submitted that the Court mut not

solely rely on the “quantity” of the text extracted. As clarified by the Court29, the value and

the similarity in expression is to be scrutinized. In the instant matter, it is alleged by the

Plaintiff’s that the infringement occurs at the preliminary step of data extraction.

a) Training process does not infringe the copyright protection granted to the Plaintiff

15. The primary allegation of the Plaintiff is regarding the tool used for extraction of

information. Subsequently the issue is with respect to the output generated. The Defendant

categorically disagrees with both these allegations, as machine-learning in all three modes

is used both “to discern and operationalise patterns in data.”30 It uses a set of “computational

methods using experience to improve [its] performance or to make accurate predictions.”31

Thus, the claims of wholesome copying of original works does not result in violation of

rights as Generative AI predict future words based on a preexisting knowledge of language.

16. It was held in the case of Dorsey v. Old Surety Life Ins. Co,32 that "The right secured by a

copyright is not the right to the use of certain words, nor the right to employ ideas expressed

thereby. Rather it is the right to that arrangement or words which the author has selected to

express his ideas. To constitute infringement in such cases a showing of appropriation in the

exact form or substantially so of the copy righted material should be required".

17. In the present matter, the Large Language Model does not contain expressive words but

contains those words that brief the idea of the text which does not fall under the category of

29
M/s Blackwood and Sons Ltd and Others v A.N. Parusuraman and Others AIR 1959 Mad 410
30
Michael Veale, Governing Machine Learning that Matters 33 (2019) (Ph.D. dissertation, University College
London), https://discovery.ucl.ac.uk/id/eprint/10078626/1/thesis_final_corrected_mveale.pdf

Michael Veale, Governing Machine Learning that Matters 33 (2019) (Ph.D. dissertation, University College
31

London), https://discovery.ucl.ac.uk/id/eprint/10078626/1/thesis_final_corrected_mveale.pdf accessed on 16

December 2023
32
98 F.2d 872

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copyright. The Plaintiff has failed to show any reproduction of creative expression to prove

that copyrighted material has been infringed.

b) There is no substantial similarity

18. It is submitted that the doctrine of merger is applicable to the present state of facts. The

doctrine of merger enumerates that when the idea and expression are inextricable linked, the

copyright holder cannot demand protection. 33 A copyright, we have seen, bars use of the

particular "expression" of an idea in a copyrighted work but does not bar use of the "idea"

itself. Others are free to utilize the "idea" so long as they do not plagiarize its "expression".
34
The function of the Large Language Model is to extract information and transform it to

the suitability of the user/consumer. To substantiate on the extrinsic test, when a specific

output is sought, the Model restricts itself to the kind of question posed to it, i.e., only when

the use specifically anything regarding the Plaintiff’s work, it provides an output on the

alleged copyrighted works, which is also not substantially similar. The claim of the Plaintiff

that the output of the Defendant’s work is substantially similar will not sustain.

19. Derivative work as defined35 is a subsequent development or improvement on a pre-existing

piece of work. However, it is germane to note that the recognition of a derivative work is

dependent on the value of corrections and improvements. Mere substitution of words or

paraphrasing does not tantamount to the Defendant’s work being derivative of the Plaintiff’s

work. The Court must adopt the “lay observers test” or the “ordinary observers test”36 to see

Chancellor Masters and Scholars of the University of Oxford v Narendra Publishing House, 2008 SCC
33

OnLine Del 1058

34
Trifari, Krussman Fishel, Inc. v B. Steinberg-Kaslo Co. 144 F. Supp. 577, 580 (S.D.N.Y. 1956); Herbert
Rosenthal Jewelry Corp. v Kalpakian 446 F.2d 738

35
Copinger & Skone James, Copyright (2010)
36
Eastern Book Company v D.B. Modak (2008) 1 SCC 1

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whether the kind of alleged similarity exists when an ordinary man The Court must consider

the use is considered transformative only where a defendant changes a plaintiff's copyrighted

work or uses the plaintiff's copyrighted work in a different context such that the plaintiff's

work is transformed into a new creation.37

20. When viewed in the said perspective, the Model only provides what the user seeks. Only

when prompted about the Plaintiff’s work, the software provides information that seeks to

answer the input of the consumer. Thus, the Defendant humbly submits that the results

produced by IntCPM does not replicate the protected expression, rather builds upon the

centralised idea, which is unprotected.

ISSUE 4: Whether Defendant’s use of Plaintiff’s work falls under fair use

21. The fair use test is ingrained under Section 52 of the Copyright Act. 1957 as a statutory

exception38 to the bundle of exclusive rights39 conferred under this Act. Section 52 of the

Act expressly provides that fair dealing with any literary work falls under the exception of

copyright infringement. The purpose of this doctrine is to “avoid rigid application of the

copyright statute when, on occasion, it would stifle the very creativity which that law is

designed to foster.”40 This is then assessed depending on the factual matric brought before

the court41. It is submitted that in the instant matter, the claims of the Plaintiff that the

Defendant’s work is not fair dealing is totally baseless.

37
Perfect 10, inc. v Google Inc 508 F.3d 1146 (9th Cir. 2007)

Chancellor Masters and Scholars of the University of Oxford v Narendra Publishing House, 2008 SCC
38

OnLine Del 1058

39
Harper & Row, Publishers, Inc. v Nation Enterprises 471 U. S. 539, 546 (1985)
40
Stewart v Abend 495 U. S. 207, 236 (1990)
41
Sony Corporation of America v Universal City Studios, Inc 464 U.S. 417, 433 (1984)

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22. Anyone who makes a fair use of the copyrighted material is not an infringer especially due

to the changing dynamics of technology42. The doctrine of fair use is a statutory right

guaranteed to the alleged infringer to establish his case. A strict application and enforcement

of the rights guaranteed under the Act would inhibit necessary "Progress of Science and

useful Arts". However, it is contended that the work of the Defendant squarely satisfies the

requirements of fair use, i.e., nature, purpose of the work, the amount of substantial

similarity found between the rival works and finally the effect on the market. 43

23. Nature of the Copyrighted Work – IntCPM is a software that is trained to provide a desired

output based on the extracted information from various data sources. However, the books

of the Plaintiff were published and made available in the public domain and therefore

accessible to everyone with his own consent. 44

24. Transformative-use test hinges on whether the artist’s use of a work “adds something new

and important”— in particular, its own “expression, meaning, or message.”45 Further in the

case of Campbell, the court also observed that the new, transformed work consisted of some

elements of the original work46 but was divergent in its meaning. Where it was held that

extraction of a section of a book for the purposes of commenting serve a different purpose

then the original work47, the instant dispute is placed on the similar lines. The Defendant’s

work does neither reproduce the protected expression nor the idea behind Plaintiff’s works.

42
ibid
43
Folsom v. Marsh 9 F. Cas. 342, 348 (C.C.D. Mass. 1841)
44
Field v Google Inc. 412 F. Supp. 2d 1106, 18
45
Google LLC v Oracle Am 141 S. Ct. 1183, 1190 (2021) (quoting Campbell v Acuff-Rose Music, Inc. 510 U.S.

579 (1994))
46
Campbell v Acuff-Rose Music, Inc. 510 U.S. 579, 580 (1994)
47
Authors Guild v Google, Inc 804 F.3d 202, 215-16 (2d Cir. 2015)

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Further, in the case of Google v. Oracle, the court while acknowledging that there had been

extraction of the program, decided that the new work added something new. 48

25. Adopting the said law laid down, it is submitted by the Defendants that the mere allegation

of extraction of the Plaintiff’s work does not suffice as the LLM as well as IntCPM is firstly,

a technological invention aimed at training the Artificial intelligence software and making

it available to the public as a software product and secondly, as long as the end product is

transformative,49 the output generated by the Defendant’s software is dissimilar in

comparison to the original work.

26. Commercial purposes – the Defendant is indeed engaged in commercial activity as it sells

the software, but commercial activity is tested on the anvil of transformativeness of the new

work.50 If the work is substantially transformative, it will take precedence over the matter

of commercial nature. Moreover, the presence of benefits to a broader public interest 51

outweighs commercial nature of the Defendant’s work. In the age of technological

development, the doctrine of fair use favours the Defendant.

27. Amount and Substantiality – if the creative expression of the original work has been utilized,

only then will the doctrine of fair use weaken. 52 Thus, when there the crux of the Plaintiff’s

work has not been reproduced at any stage by IntCPM, this facet of fair use supports the

Defendants. In RG Anand v. Delux Films the court came to the conclusion that the number

of similarities by themselves is not sufficient to raise an inference of colorable imitation.

Infringement occurs when a substantial part of a work is taken, and that turns as much on

48
ibid 37
49
Google LLC v Oracle Am 141 S. Ct. 1183, 1202 (2021)
50
ibid 44
51
Blanch v. Koons 467 F.3d 244, 254 (2d Cir. 2006)
52
ibid 37

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what makes the work sell as on any aesthetic criterion.53 The amount of copied material also

falls back upon the consideration of the degree of transformativeness54. The ingestion of the

Plaintiff’s published books was necessitated to enable machine learning, for the ultimate

benefit of the consumer.

28. Effect on market – it is submitted that the Court must look into the balance of public benefits

and losses suffered by copyright owners to determine the actual effect on market. 55 The

Defendant primarily is concerned with the software market while the Plaintiff is an author

whose domain is limited to the literary market and thus there can be no usurpation of the

market of the Plaintiff. The determination of the relevant market is essential. Thereafter, the

loss suffered is to be established by the Plaintiff.

29. Thus, it is respectfully submitted that Section 52 of the Act is to be viewed with a positive

connotation. It is a form of freedom of expression and speech guaranteed and protected

under Article 19(1) of the Constitution of India. 56 In the light of the aforesaid submissions,

the Defendant submits that the work of the Defendant’s, more particularly, IntCPM is a work

sheltered under the ambit of Section 52.

ISSUE 5: Whether the Plaintiff is entitled to Damages and Injunctions against the
Defendant

30. The Plaintiff has not made a case of infringement. Thus, there arises no occasion for the

Defendant to pay any compensation as the work of their work falls under the affirmative

defence of fair use. Further, it is also stated that the work of the Defendant was

53
William Cornish, ‘Clarendon Law Lectures: Intellectual Property-Omnipresent, Distracting, Irrelevant’ (1st
edn, Oxford University Press 2005)
54
Google LLC v Oracle Am 141 S. Ct. 1183 (2021)
55
MCA, INC. v Wilson 677 F. 2d 180, 183 (CA2 1981)
56
Wiley Eastern Ltd & Ors v Indian Institute of Management 61(1996) DLT 281 (DB)

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transformative as it did not bear any substantial similarity to the work of the Plaintiff. Mere

use of similar words does not impinge upon the rights of the Plaintiff.

31. In the case of Harman Pictures v. Osborne57, the English Court has cleared the air around

the law of damages and injunction and sated that the infringed much show a prima facie

case along with the likeliness of being successful in getting a favourable order. The Court

will then exercise its jurisdiction based on the principles of balance of convenience and

irreparable prejudice.58

32. Even though the Plaintiff alleges copyright infringement, the defence being stronger, the

Plaintiff does not obtain exclusive right and his incentive to spend on defence is reduced

and thus cannot compel the Defendant to pay any sort of compensation, accounts of profits

and attorney’s fees for an order unfavourable to him. 59

33. In the present circumstances, the damages are sought by the Plaintiff on the alleged

copyright infringement and fair use principles. However, it is answered by the court 60 that a

person cannot seek injunction on the basis of unfair competition or unjust enrichment of the

Defendant.

34. The conditions needed to be fulfilled for grant of injunction are: prima facie case, balance

of convenience and irreparable injury. It is submitted that the work of the Defendant falls

well within fair use. The court in Fraser v. Evans, while dealing with a case of defamatory

article, categorically stated that status quo or injunction does not lie in favour of the Plaintiff

as the Defendant justified his action invoking the doctrine of fair use. Likewise, the suit

follows in the present matter.

57
Harman Pictures, NV v Osborne [1967] 1 WLR 723
58
Dalpat Kumar v Prahlad Singh (1992) 1 SCC 719, 721
59
Eagle Services Corp. v H20 Industrial Service 532 F.3d 620, 625 (7th Cir. 2008)
60
Akuate Internet Services Pvt. Ltd. & Others v Star India Pvt. Ltd 2013 SCC OnLine Del 3344

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35. Arguendo, the Plaintiff will largely benefit from the Defendant as the use of the books will

make it available to the benefit of the public which will cause little to no loss to the moral

rights or integrity of the Plaintiff’s copyrighted material. 61 The alleged use of the books of

the Plaintiff for training the datasets would invariably have a public purpose as AI is a novel

technological concept that has the capacity to introduce the society to multitudinous

advancements. Restricting the Defendant’s work will not only derail technological

innovation but will have huge ramifications. The balance of convenience undeniably lies

with the Defendant.

36. In the present times, inhibiting subsequent writers and artists from improving upon prior

works will frustrate the very ends sought to be attained by copyright law. 62 It will curb

creative expression of a different sort.63 Thus, based on the aforementioned grounds,

granting an injunction in the present matter will not only be unfavourable to the Defendant,

but also to the public at large.

61
Kelly v Arriba Soft Corporation 336 F.3d 811 (9th Cir. 2003)
62
Harper & Row, Publishers, Inc. v Nation Enterprises 471 U. S. 539, 549 (1985)
63
Andy Warhol Foundation for the Visual Arts, Inc. v Goldsmith No. 21–869, 87

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PRAYER

In the light of arguments advanced and authorities cited, the Defendant humbly submits that

the Hon'ble Court may be pleased to:

1. Dismiss the suit.

2. Adjudge and declare that the claims for copyright infringement of the Plaintiff's

copyrighted material by the Defendant be dismissed.

3. Adjudge and declare that the use of Plaintiff’s copyrighted material by the Defendant

falls within the criteria of fair use.

4. Grant any other order as it deems fit in the interest of justice, equity and good

conscience.

Respectfully submitted on behalf of the Defendant

Sd/-

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