Legal and Ethical Implications of Gen AI based Marketing

Rohaan Kaul (00:01.338)
Hello everyone, welcome to another episode of Wisdom Over Hustle. I'm your host Rohan and also the co-founder of ZevOps. So today we taking an interesting turn in terms of our panelists. Since we have been talking a lot about martech and AI side of things, it was a valid question that was being...

asked on in terms of the copyright because there will be lot of discussions around copyright infringement and laws around it. So today we have a very interesting panelist on our show. I have Rahul Jain who is the partner at Hammurami & Solomon. That's a firm and his area of specialization happens to be in the areas of copyright infringement, intellectual property and

He has been working with marketers so he has a very interesting point of view and take on marketing specifically, IPR and know, trademarks related to marketing. Also from a startup point of view. so, welcome Rahul, welcome to the show today. Finally, we made it after a lot of deliberations and talks. So, before we go ahead, just

Rahul (01:16.568)
Thank you.

Yeah, yeah, yeah.

Rohaan Kaul (01:27.128)
Could you just give us a brief background about yourself, you know, how you got into IP laws from a law point of view because I don't know, I'm not sure whether it's as lucrative as doing criminal law or any other language.

Rahul (01:42.922)
Yeah, yeah, thanks. Thanks Rohan. Thanks for having me. So Rohan, I'm a lawyer with around two decades of experience. I've done my law in 2005, way back in 2005 and then also I've done my masters in intellectual property. So it's a very interesting story. I'm from a family legal background. My mother, father, wife all are lawyers and

So it happens to be like, you know, we do all coffee table discussions on constitutions, contract, whatever it may come in terms of legality. I was happened to, you say practice in court. So my father is we are from Rajasthan. My father used to practice at Jaipur High Court and Alwar. So

I was seeing that it's a very orthodox way of practicing, know, just civil criminal or intellectual or other kind of stuff which are very mundane to me. I've seen that as like in and out, know, take bounce matters or all those regular stuff. But then I realized and in my college days at law school Jaipur, my mentor guided me that what would you like to do in terms of, know,

understanding the legal landscape. So I told them that I want to go internationally and I know want to practice in different jurisdiction countries as well. So I've been told that there is two streams which you can take in terms of international or intellectual property. Then I realized that intellectual property is very very technical niche area. When you talk about R &D centers, marketing teams, you talk about creativity, you talk about innovation.

And from that point, I realized that was like way back in 2004. And then I have been a mentor by my ex professors. They told me that it will be a good way to do your masters. And then I did my masters from NLU Jodhpur. So that is the starting point of intellectual property. And I know there are various streams, but this niche area of marketing. So I have been a work.

Rahul (03:56.384)
as a corporate lawyer for big MNCs. Say Samsung, have a jail unit which does marketing for them. It's a separate entity. Havells, Reliance Retail, Flipkart, Walmart. So these are the big entities which have a specific marketing teams. And we realize that when anything or any kind of trouble shooting required, then only they bring legal into picture.

So we realize that the sort of training is required for these marketing professionals because see sometimes you crowdsource it from open internet and something you have been told by your supervisor to create something and they crowdsource it. So what has to be taken from open domain or it has to be a licensed images or content so that whatever you create should be there in the periphery of non-infringing work.

and you should not be having issues thereafter. So we realized that marketing teams have to be properly trained and now in the age of AI there is no doubt about

Rohaan Kaul (05:10.555)
Alright cool, thank you for that background. Before we go ahead, I have always asked you and I always ask people, are there any wild stories that you have on IP?

I came across one of these panel discussions and somebody told and I think I mentioned this earlier when we had a discussion about the crazy story of like you know I found it really amazing the Indigo Airlines in the Tata Indigo Fiasco like there is an I mean I later on researched for that there is an ongoing case for that so any crazy stories that you might have encountered or you know in IP

Rahul (05:45.334)
Yeah, yeah.

Rahul (05:50.829)
Yeah, yeah.

Rahul (05:55.342)
I have lot of them like, you know, I have myself face. So in one of the, you know, expeditions me and my wife went to Andaman's and we were like, you know, roaming here and there and we bought maza. So it's a proper bottle of maaza and you know, proper trade dress. So in trademark sense, the entire packaging, we also term it as a trade dress. This is being created by the marketing teams entire, you know, logo.

color combinations, bar coding, everything is being created by a marketing team. So we got maza and then I tasted and then I realized it has a different taste. Then I saw it is written there as maa. Then I realized how I can take maza and maa both are very different. Then I see on the shelf the weight has been put across.

all the Mars have been put across. So I just saw it says ma so in a a trademark sense in a brand sense, we say it as a average collection of the average consumer of imperfect recollection. That's a that's a principle which we put in the normal layman sense and and we try to know so I've been duped.

I was like I as a trademark lawyer can do because of this small thing because you you just went to a shelf and you just got that masa and it's just mine it has been put across in the shelf in the manner me and my wife both practice trademark law and we were like if we as a know trademark lawyers can be duped then anybody can else

Rohaan Kaul (07:23.184)
you

Rohaan Kaul (07:38.498)
you

Rohaan Kaul (07:42.992)
So...

Rahul (07:47.566)
So that is one and that very interesting story is there with respect to Virat Kohli. So we are doing one ad campaign for Flipkart and we have been told that you know, so there is another very important law, metrology regulation. So, you whenever you create an ad campaign and you write, you know, that this product is for five rupees. So you need to write it is inclusive MRP. So this is a metrology regulations.

Rohaan Kaul (07:51.792)
you

Rohaan Kaul (08:03.279)
Thank

Rahul (08:15.661)
you need to put across every advertisement that's the mandate otherwise you will get a notice from the metrology department. So there is a standard unit which has to be put in all the advertisement in terms of money, in terms of MRP, in terms of weight whatever it may be. So televisions has to be put across as inches in terms of their screen size but under law

It is said sorry under law it is inches but as the custom it is being depicted in centimeters. So we have been told that we need to do both. So how to do that because as a custom everybody is talk about inches as a custom everybody is talk about centimeters. So what we did we ask you are at only to say it in a regular customary sense, but we put a you know one liner which is going on the video.

And there is a, you know, in ASCII guidelines, there is a time. So if, if it's a 15 seconds ad or if it's up to two minutes ad or it is more than two minutes ad, how that particular line should go so that you can be compliant. So we have this very big law firm. They were not able to give us the answers. And then we, because you know, when the, kind of big celebrities being involved in the ad campaign, lot of effort, lot of money is being involved and the marketing team never budge. We want Virat Kohli because it's not about

the money. It's about that the sentiment of say big billion days are going on and IPL is also nearby. So, you know, they have to cash up on that personality and that event and that marketing stunt which they are going doing in their particular company. So we actually got that particular advertisement campaign in compliance with law. So like a lot of stories are there. There's no end to it.

Rohaan Kaul (10:08.78)
Okay. All right. Interesting. Now let's come to the real part of this conversation. Now I'll tell you something interesting that has happened with me of recently that I've noticed when using JNAI platforms, Earlier, you know, books that I have read, you know, and when I used to extract information out of these JNAI platforms, right?

that in what I have noticed is that earlier this information they used to give me a summary or some information that was there in these books out of it but of recenty I have noticed because of probably some joint cry about

property infringement and know that authors who write that right they are being devoid of the royalties because of know JNI being able to pull out this information and research because now I have noticed that you know if I ask questions they ask me specific questions around the context of the book like you know if I read the book specifically I ask okay you know I need information about this without I have noticed people been using this information to create content

where actually they would not have that authentic information from reading the book. Now with these implications what do you see the impact on marketing for this like you know for the JNI generated content where it would be a time source from different platforms. What do see the implications of it and how do you safeguard how to marketing teams safeguard themselves from this.

Rahul (11:51.606)
Yeah, so Rohan very categorically and I'm probably, you know, sort of influencer in this podcast. So I should say that, know, quote unquote, the information being shared in this particular podcast is only for the educational purpose and they should not constitute any legal advice. So see, so what you are saying is that the impact of artificial intelligence is there in the marketing domain, right? It is happening in the legal sector as well.

digital transformation of legal sector already happened just before COVID and in COVID it has fast tracked. Now artificial intelligence transformation is happening. Right. So what I believe and considering this case law is also going on in court. I don't want to opine that whether it will go in positive or negative, but open AI chat GPT is having a case with ANI media house.

where a music industry has also put himself in the case. So how the construct of artificial intelligence work? It's a Gen-AI model which use two kind of data, right? It trains the data or it get a user input, right? And then it creates something. I say, if somebody uses the data, it...

incorporate, upload the data and say that I want something in this format and you create the similar checklist in a different domain. So that's how we generally use artificial intelligence in a chat GPT.

The question here is that what is the threshold? So artificial intelligence is not having a human existence and it's a chatbot. Under Copyright Act, if you see the ownership has been delved down to authors. Authors are persons. These are natural persons.

Rahul (13:55.39)
as such artificial intelligence created work will not get any kind of copyright because these are not individual owners. These are not natural persons. Now the question comes that it is being created. Prompt has been given by the natural person like us. What is the threshold of prompting? What is that creativity threshold of prompting which allows that that generated

generative AI work will be given a copyright protection. So that has to be still has to be decided because that question is ongoing in various courts across US, Europe and India. So we need to decide that threshold limit because say

you have incorporated something in the human intervention is more than 70 75 % to create that data. So like you're talking about the image, sometimes you take image and then you put it in a different colorful form and then you created your brochure or marketing content. So how much has been taken and how much has been created that's have to be identified and when you are taking something that something has to be licensed.

permitted and there are many galleries wherein you know, you can get a licensed content which you can upload in your robots to train them and then to create that work. Sometimes you also ask the external agency to do it for you. So then in that scenario, there's no problem because just put everything in your contract that they have taken a license content. They are creating things in a genuine effort with all permitted usages. Then you won't be having any kind of issues.

So we need to identify how this generative AI is helping to create the marketing content and if it is being used and devoted more than 70-75 % by the human intervention then I should always say that you should also get it registered. So copyright is basically if you talk about as soon as pen leaves paper, copyrights exist. As soon as I have drawn something on the paper, copyright subsists, exists.

Rahul (16:11.297)
But if we get a registration, then we would be able to get our remedies in a proper form. Like, you know, you want to put somebody in jail. If you have a registration of copyright, then it will be easier for you to do it. Otherwise, other than that, statutory remedies allow you to do that. Otherwise, cannot put anybody to jail. So you need to be like serious enough to create in a genuine form and then get it registered so that it will be easier for you to.

Because see when you create something and you don't want that others should copy it. You also want that if others should copy it, I should be able to enforce my right and stop him. Right? Otherwise there's no usage of creating so much of good work. Right? So I remember one of the stories wherein we so Munna Bhai MBBS you remember the movie, right? We created an ad film in Flipkart again. So all these, know, child artists.

You they do this campaign on big billion days. So we created that particular ad campaign through these directors and producer actual. I don't remember the name. I was just forgetting the actual director of the movie created this thing. So but you know what happened? So you remember this tune comes.

So this tune was given copyrighted to Sony Pictures. So when we are creating the movie, this particular ad campaign, my producer, director told us that we don't have this movie, this song, right? Boss, but you have you're the owner of the movies. I have exclusively given it to Sony. So then we have to get the content as well. I think additional some crores rupees we have given and then we got that.

song tune and then we have created this particular ad campaign. So we need to identify license stuff should be used while creating generating marketing content and then probably you will be the owner of this particular content.

Rohaan Kaul (18:26.816)
Okay, that is thank you. Thank you for such insights. Now the other question is that see in this context, I mean, why it is also like in terms of, you know, reusing of the content, right? Where there is like we marketers, we typically use JNI platforms to

repurpose content and build something fast, specifically in the startup environment that is that. But on the other hand, we ourselves are creating some original content. Like for example, now this is a form of original content that we are doing. There are other forms of original content that are there in terms of video or text that I would have created. Earlier, mean, there was in terms of protection, there were possibilities like, where you

Rahul (18:52.609)
Yep. Yep.

Rohaan Kaul (19:19.863)
to do DMCA protection for your you know.

content, website content or copies and everything, right? But in this scenario where, know, tweaking of content is so easily possible and reproduction is so easily possible by changing a few parameters. How do you think marketers can safeguard their content in that scenario? what is it that we because see with, with trademarks and a lot of things to those things, it's quite possible, like, you know, because there is a mechanism, there's a body where if you have trademark or you

Rahul (19:26.007)
Yeah. Yeah. Yeah.

Rohaan Kaul (19:54.96)
Patented things, content is not something which is patented or trademarked, know, it's very easy to duplicate or repurpose it on the basis of some this thing. So how do we take care of that because I see that's going to be the biggest challenge for marketers going forward.

Rahul (20:11.841)
without doubt drone. That's a very, very big question and I'm thankful that you have brought that question. So I'll go it from the other angle because I want to make this thing interesting to the marketers because practical marketing insights and strategies are relevant and then we'll come on the legal part. So I believe that you can have all these visual and textual signatures in your branding.

where you talk, where you incorporate signatures or tells right would be a specific font, could be a taglines, could be design elements, you know, when you're creating something you should also be like little bit confident that it's your work. You have created it. It's not like that. You have got it from somewhere and then you have copied it because see you are having pressure to deliver.

and then you go on internet and you figure it out something I will tell you any interesting story of Accenture as well. This let me just finish on that part. So that is important together with you need to identify what are the knockoffs or unauthorized remixes. So as a marketer you need to understand that part that what you are creating its original right. Secondly, there are content recognition tools.

So what you create, know, people identify this is original or this is not original, right? And there are also something known as remixing of the content. So when you are having a selective licensing wearing, I've told earlier that you hire an agency who do everything for you, then you will be out of the embed because you put everything in the contract. But if you identify these things as a marketing strategy, then it will be easier for you to

come over that threshold of creativity and that will be considered as your work. With that, you need to incorporate a couple of legal strategies when you are doing remixing and repurposing, which are one with respect to, as you have told, digital rights management in terms of embedding metadata or watermark.

Rahul (22:24.117)
your images or videos that is very, important because when you are trying to enforce it, evidence has to be there in court of law that how this particular thing is your work. Right. I think non-fungible tokens are also of that category. So that has to be there with that registration of copyright because you know, as soon as you have a, it's a prime of se proof of evidence that this is your work, right? Your name will be there. I'm sure if you're observing.

all the newspaper they are just giving those copyright, you know, table that okay, this particular work is owned by this particular publication house and all those stuff. So that registration is very important with that confidentiality clauses and non-disclosure agreement wherein you identify while creating these remixing and repurposing the content that this is your work.

vis-a-vis legal strategies, vis-a-vis marketing way of doing things because then you are confident on both the sides because sometimes you also have been called to court for as an evidence purpose as expert testimony who have created the content. So then you need to if you are going go lock stock barrel and try to protect prevent secure your IP. So I was just telling a story of this Accenture. So

I'm sure it's a brand extension only. they have created one company and they have created a logo which is having you understand those chemical bonds are there and you create one structure. Right? So this structure was like this and they have created some other structure in a different dimension. This company was registered 10 years back with that same trademark.

and Accenture got it registered at I think 2023-24 and they said that we are Accenture, nobody can stop us and we are the owner of the mark and this matter went to Delhi High.

Rahul (24:32.085)
In Delhi High Court, they realized that their marketing team, one of the guys just got it from the internet, this particular logo and just change the configuration of the logo. Because if you see it from a different angle, you can easily make out that it's logo which has been created. So they've been gone. So that's why I'm saying that, you know, when you're talking about marketing team, they should know.

And when generative AI is there in place, they should know that where are their boundaries. They should be knowing even the terms and conditions of the chatbot they are using because the major question in this particular litigation open AI versus ANI is like opt out mechanism wherein you opt out stating that that when you are using this particular portal, you will not

be using something which is there on this particular website or this particular system and all. So you need to be aware that what you are using and through that what you are creating and that has to be registered so that you you can protect it. Otherwise it will be because you know all these legal journeys are little tiring. You need to explain a lot. You need to prove a lot. Everything has to be there in the form of evidence. You need to go to court. But you know ultimately, know,

you need to bear the fruit of your earnings. So I think that if you are having a proper charter in mind of telling these marketing people how to move forward, then it will be great.

Rohaan Kaul (26:12.746)
Okay interesting so now this now that's that's purely from a legal framework right I mean the legal framework point of view now with JNI there is also the ethical compulsion like you know there is

Rahul (26:13.183)
Okay, interesting. So, now.

Rohaan Kaul (26:35.145)
Like legal kind of I always say there is an emotional and rational side to everything. So legal framework becomes your very very rational side of it. Ethical to a certain extent is your emotional side of things. When it comes to AI powered marketing tools that we are using, they are becoming more sophisticated. There is a lot of push around personalization, lot of improvements being made in terms of...

looking at personalization more campaigns that would be around people's personality, their new likes and all of it. So, by using these tools, what are the considerations that us as marketers need to take into account where the ethical component of it and especially where ethical meets the legal part of it.

I think so of recently there have been lot of controversies where people have said something, you know, as and it's backfired massively, right? And there have been.

legal ramifications also of that right I mean it's gone into the you know I am pretty sure you are aware of it there are lot of things something that is happening off recently I mean it's not from a marketing point of view but somewhere the communication is a very important component of marketing the speech part it right and it kind of intersects over there so just throw some light on that aspect of it that how can we as marketers walk that path and ensure you know but this

Rahul (27:49.943)
Yes.

Rahul (27:55.149)
Yes.

Rohaan Kaul (28:09.335)
adoption of AI, we are on the right side of ethics as well as law.

Rahul (28:16.737)
Yeah, so see what I believe ethical considerations are couple of ethical considerations because bias and fair representation has to be controlled and operated from the human point of view only because you know AI do what humans tell them to do right and there is an algorithm behind it which works. So training your robots all those things talks about biases and

disclaimers have to be put on certain places consent in terms of privacy and data security has to be there in place. And accidental plagiarism like you know, you have crowdsourced something some images from open internet and then you are not able to figure out something new because it has actually, know, got the generated the images from the

public domain images only. So that accidental plagiarism is always there, which being created by a generative AI and you know, unless and until you do a proper proofread. So there is a very interesting case law happened in US and this particular lawyer has been, I think has been reprimanded not barred. So he put a brief in court of law stating that okay, this is the situation.

there are certain cases cited in the brief everything is done through generative AI and all those cases were fictional there is no cases like those which he has mentioned in the brief so he has to proofread it he has to do quality check when he has created that particular brief he got the brief he put it in the court judge gave the judgements and then when it went to appeal the other party

identified where are these judgments so that they need to counter or revert those cases were not there at all.

Rahul (30:20.331)
So this is the ethical consideration wherein you need to be aware that whatever you have created has to be proofread, right? Unless and until your robot is giving you 100 % results, right? So it happens in the marketing domain as well, right? If you're not aware about how the background of your generative AI robot is working, then it will be problem for you, right? So, you know, what I have...

heard and understood that you can give all the ringtones to the robot and then it will create a new lyrics for you, musical notations for you. So lot of things can be possible but then you need to see that how this can be done in an ethical manner.

What I realized when we intersect this particular AI consideration, ethical consideration with legal part, then couple of more things come into picture, which is known as consumer protection. So in consumer protection, we must talk about misleading claims. So I remember both in Samsung and in Flipkart Walmart. So whenever my product team comes with me, comes to me for the listing and they say something on the listing, which they say as a claim.

that this is this, this is that. So I remember a very interesting incident wherein they came with a cloth paper towel. What is paper towel? Towel is cloth towel. So the paper towel is having a more life because it is made with this, this, this material. And then it is also it's a paper only, it is having a more lively. You can buy it or you can mop it up in a more

know important not more important but I should say that it having a life expectancy more. So then I ask them give me the claim report. Have you done any kind of lab testing which shows that this particular material is having more durability. So those misleading claims should not be there while you know putting your marketing things because I'm sure you understand search engine optimization and when all you put

Rahul (32:40.255)
or simple words like and I want to buy a coffee mug. It will goes to the say Amazon only every time because Amazon is having the unique description of a mug itself. So those misleading claims should not be there because you know now we have a CCPA Central Consumer Protection Authority. Why I'm telling this because there's a mass litigation concept in US. This has been incorporated in India by the Consumer Protection Act Amendment 2019.

Rohaan Kaul (33:04.972)
Okay.

Rahul (33:10.029)
So like if you have done a misleading ad campaign and say 1000 people got affected. I'm not talking about affected.

But I'm talking about the thousand people have initiated a claim against you. So in that scenario, you need to take care of the inquiry being done by the CCPA and that and then the claims will be of that proportion itself. So in that scenario, we need to identify that, you know, consumer laws and then of course, ASCII Advertising Standard Council of India, have a proper influencer guidelines.

Rohaan Kaul (33:41.11)
Right.

Rohaan Kaul (33:45.996)
you

Rahul (33:51.31)
how you need to do these influence promotions campaigns. You need to tell very categorically what are the material connections, whether it's a paid campaign, unpaid campaign, all those things has to be, you know, so I was reading this very, very important as key guidelines. I would like to talk about this particular line. So they are saying,

Rohaan Kaul (33:53.612)
you

Rahul (34:16.031)
It is critical that consumers must be able to distinguish when something is being promoted with an intention to influence their opinion or behavior for an immediate or eventual commercial gain. So if you read, this is the preamble of these ST guidelines. now the new one should not be duped in any manner because you know, they don't know that when the ad came, they don't know when the advertisement is happening or the marketing is being going on.

So it has to be very much clear that they have been asked showing that particular campaigns with the intent that they need that the campaigner is trying to get some commercial gain because it is influencing his mindset and then he'll go and buy that product. So that has to be very clear. Finally, we, know, inter intermediary guidelines, right? So all these e-commerce platforms are intermediaries.

It has been told that they have a safe harbour provisions and they are being safeguarded that anything bad may, they won't be responsible because sometimes it's a between seller and customers they don't know. But with respect to finance, with respect to health.

they have been considered that they have an additional obligation. So there is an intermediary ethics guideline which came in 2021 which needs to be followed because you know in finance there's a monetary loss and you need to be registered with SEBI as a qualified you know say finance, wealth management, know what you say supervisor or who is giving guidance.

Rohaan Kaul (35:43.036)
Right.

Rahul (36:03.807)
in nutrition and health again, you need to know that you cannot claim something misleading, you need to be a registered FSSAI person so that whatever you are saying, whatever you are writing, those should not be claims which are against the principle of food laws of India. So I think those two, three things are very, very important, stating that ethical considerations

in AI marketing campaign needs to be taken care

Rohaan Kaul (36:41.616)
Okay sorry I just got disconnected in between I had a small pause all right I think so.

I have more questions for you but unfortunately we are running short of time. are already I guess 36 minutes around that. I do have I think so from the number of people who sent me the queries on the basis of that you are going to be on my show. I have some questions around influencer marketing also but I think so our conversation is not complete. I believe this will warrant another round of discussion for us. So I am definitely happy. We'd love to have you again on

Rahul (36:55.38)
okay. Okay, okay.

Rahul (37:06.125)
Please.

Rohaan Kaul (37:18.923)
our show and have another round of discussion with questions that are I think a lot of questions are now around influencer marketing also because a lot of influencers are using Gen. AI for content generation and you know that is where you as a brand do not have a lot of control on so I think so that that would be an interesting discussion for next time around but for viewers of our show

You can find Rahul's LinkedIn profile in our description section. So in case you have any questions for him, please feel free to reach out to him. He's a wonderfully helpful person. He has been answering a lot of queries of people where he's part of our communities, where people have posted questions to him and he's taken a lot of time in responding to all of them at length. So please feel free to reach out to him. And Rahul, can't.

Thank you for your time today. This is a very interesting topic. think so lot of us have been smitten by the

AI bug, I mean we tend to call it shiny object syndrome, but you know this was a very important aspect of it because we see the evolution with every you know trend that comes into adoption there is an evolution in that with terms of compliance or legal like you know in data also we see over a period of time the years like you know how GDPR 2 I think so DPDPA is coming in India so we will see some evolution here but it was a good insight in terms of you know for us to be

prepared as marketers. Thank you so much for sparing time today. It was wonderful to have you on our show and for all our viewers please subscribe to our channel. We'll have Rahul once again on another show, another day, another time taking few more questions from us on J &A and the legal implications of it. Thank you Rahul, thank you for your time.

Rahul (39:14.219)
Thanks a lot Rohan, thanks everybody. Bye bye.

Rohaan Kaul (39:19.931)
Okay, just.