# An Indian Opt-Out for AI Retrieval?

Why the copy made to answer a question deserves its own inquiry under section 52.

By Manraj Singh Chandpuri

LEX.TXT/ESSAY/002

Published 2026-09-24 · Updated 2026-09-25

[Canonical article](https://manrajchandpuri.com/lex/essays/indias-only-statutory-opt-out)

## Abstract

I argue that section 52(1)(c) deserves examination as a possible defence for particular copies made during retrieval, because its reference to an express prohibition gives the rightsholder’s instruction a role that cannot simply be imported into fair dealing. The argument depends on the purpose and function of the storage, rather than on calling a service retrieval-augmented generation, and I test it against technical transmission under clause (b), research under clause (a) and the possibility of durable retention. My conclusion is a limited route for analysing a particular copy, rather than a general power to prohibit an answer or displace every available exception.

## Permissions

I grant a worldwide, royalty-free, nonexclusive permission to crawl, index, retrieve, embed, analyse, summarise and quote my eligible original prose, and to use it for commercial and noncommercial model training, fine-tuning and evaluation, including making and retaining the copies reasonably necessary for those purposes and deploying the resulting models commercially. Retained copies must preserve the supplied author, canonical source and rights metadata, although I do not make this permission depend on a model naming me in every future answer.

My original prose in published LEX.TXT articles, including articles discussing RightSignal, as identified in the publication manifest. Embedded or linked resources are separate works and do not inherit this permission.

[Applicable permission](https://manrajchandpuri.com/lex/rights#original-prose) · [Inspect these signals](https://manrajchandpuri.com/lex/machine-signals/essay-002)

Policy version 0.5

## Article

I am interested in the copy made between a reader’s question and a system’s answer, because that copy can disappear from a debate organised around training on one side and infringing outputs on the other. A service may fetch a news article to answer a particular question, hold some or all of it while composing a response and then discard it, while another service may answer from a stored collection without contacting the publisher at that moment, so neither the word retrieval nor the presence of a source link tells me enough about the storage to classify it legally.

The distinction becomes important after [*ANI Media Pvt. Ltd. v. Open AI OpCo LLC*](https://indiankanoon.org/doc/93327052/) ('*ANI*'), where the Delhi High Court ("DHC") accepted a prima facie fair-dealing argument for training under section 52(1)(a) of the [Copyright Act, 1957](https://indiacode.gov.in/act/6b893162-631a-453b-a7b9-89685716889b) ("Copyright Act") [[¶256]](https://indiankanoon.org/doc/93327052/#p_541). I do not read that conclusion as resolving every copy made by an artificial intelligence ("AI") service, because the purpose, retention and function of a query-related copy can differ from those examined in the training claim.

The limits of that interim order matter to my argument because the court recorded that the retrieval-based claim had not been pleaded, although its conclusion addressed the particular outputs before it [[¶84]](https://indiankanoon.org/doc/93327052/#p_193), [[¶271]](https://indiankanoon.org/doc/93327052/#p_563). Its observations were confined to the interim application [[¶274]](https://indiankanoon.org/doc/93327052/#p_569), while the [Division Bench’s notice order of 15 September 2026](https://indiankanoon.org/doc/157353463/) directed listing on 8 December 2026 without deciding the appeal’s merits [[¶4]](https://indiankanoon.org/doc/157353463/), so I treat the question developed here as an argument that still needs its own factual and legal examination.

## The statutory route I would test

Section 52(1)(c) concerns transient or incidental storage for providing electronic links, access or integration, and its conditions include the absence of an express prohibition by the right holder and a qualification concerning awareness or reasonable grounds for believing that the storage is of an infringing copy. I regard that wording as a reason to examine whether a particular retrieval copy falls within the provision, without assuming that a publisher’s objection has the same effect under every other exception.

The court in *ANI* referred to clause (c) while contrasting its express treatment of infringing copies with the Explanation to clause (a), rather than deciding that clause (c) governed the retrieval arrangements before it [[¶196]](https://indiankanoon.org/doc/93327052/#p_452). My proposed application therefore remains an interpretation to be tested against the architecture and statutory purpose, rather than a rule already established by that judgment.

The strongest case for the interpretation is a fetched copy retained only as an intermediate step in supplying access to, or integrating, the source in response to a question. The strongest objection is that a system composing a new answer may be using the source as material for its own product, rather than storing it for the linking or access function contemplated by the clause, and the appearance of a citation cannot settle that objection because a link may accompany many different kinds of copying.

## One answer can depend on several different copies

I begin with evidence of the acquisition copy, any retained source text used in an index, the material supplied to the model for the particular query and the text eventually shown to the user. Those stages need not all occur in every system, while the legal relevance of a numerical representation or extracted passage also depends on what it retains, so the inquiry must follow the actual implementation rather than a diagram treated as universal.

| Part of an illustrative system | The evidence I would seek | The question that evidence helps answer |
| --- | --- | --- |
| Fetch from the publisher | Requested resource, response and purpose of acquisition | Whether the copy was made for this query, indexing or another use. |
| Retained collection or index | Stored content, retention arrangements and reuse | Whether storage is a central continuing function or subordinate to another function. |
| Query-related working copy | Material supplied to the model and its lifetime | Whether the claimed linking, access or integration function explains this storage. |
| Answer delivered to the user | Expression reproduced and relationship to the source | Whether the output presents a separate infringement issue. |

Retrieval-augmented generation ("RAG") uses an external information source in generating a response, but that source need not be a live website fetched afresh for every answer, which is why the DHC’s account of external retrieval should not be expanded into an assumption about every request [[¶26]](https://indiankanoon.org/doc/93327052/#p_39). OpenAI’s [crawler documentation](https://developers.openai.com/api/docs/bots) usefully distinguishes GPTBot, OAI-SearchBot and ChatGPT-User, while its statement that robots.txt may not apply to user-initiated visits concerns described crawler behaviour and does not itself decide the effect of a statutory prohibition.

## Why duration cannot carry the argument alone

In [*My Space Inc. v. Super Cassettes Industries Ltd.*](https://indiankanoon.org/doc/12972852/) ('*My Space*'), the Division Bench discussed transient storage as temporary and incidental storage as subordinate to a principal function, while distinguishing automatically generated storage from permanent hosting [[¶59]](https://indiankanoon.org/doc/12972852/#p_97). I use that discussion with its express qualification that the 2012 amendment did not apply to the circumstances before the court, rather than presenting it as a holding about contemporary retrieval systems [[¶58]](https://indiankanoon.org/doc/12972852/).

The disjunctive wording matters because storage does not necessarily cease to be incidental merely because it lasts longer than one answer, just as deleting a copy quickly does not establish that it was made for a qualifying purpose. I therefore examine both retention and function, asking whether the copy serves an identifiable linking, access or integration activity or instead forms a substantial, reusable content resource in its own right.

That approach creates a narrower argument than a distinction between temporary retrieval and permanent indexing, but it is also more defensible because it does not allow a retention timer to determine a legal category without examining what the stored material does. A developer asserting that a persistent copy remains incidental would need to explain the principal function to which it is subordinate, while a publisher contesting the explanation would need evidence beyond the bare fact that an index exists.

## The alternative route through technical transmission

Section 52(1)(b) separately concerns transient or incidental storage in the technical process of electronic transmission or communication to the public, without reproducing clause (c)’s express-prohibition condition. I therefore test that route before suggesting that a refusal under clause (c) defeats the defence for a copy, since the neighbouring provisions must be distinguished through their purposes and wording rather than by treating the more restrictive clause as automatically controlling every overlap.

A developer might argue that a working copy is only part of the technical process through which requested information reaches a user, whereas the publisher might answer that selecting and integrating source material to compose an answer goes beyond that description. I do not think either characterisation can prevail simply by naming the service, because the inquiry concerns the function of the particular storage and whether the claimed technical role explains the copying in question.

My argument survives this objection only as a conditional one, because an effective defence under clause (b) would require its own analysis and would not disappear merely because the publisher had made a statement relevant to clause (c). Conversely, a service cannot establish that defence simply by observing that computers necessarily make temporary copies, since that observation leaves the statutory purpose requirement unanswered.

## The alternative route through research

A developer could also invoke section 52(1)(a), which makes the characterisation of the particular dealing and its fairness central to the inquiry, and I do not assume that opening a service to users necessarily excludes every research argument. The DHC’s treatment of closed inputs and publicly available outputs in *ANI* makes such an automatic distinction especially unsafe [[¶211]](https://indiankanoon.org/doc/93327052/#p_474), [[¶214]](https://indiankanoon.org/doc/93327052/#p_479).

I nevertheless think that a fetch made to satisfy a particular customer’s information request calls for an explanation different from the model-development process examined in the training claim. The developer would need to identify the relevant dealing and show why its purpose and fairness satisfy clause (a), rather than allowing an earlier finding about training to travel unexamined to every subsequent interaction with a source.

The output remains a further question because protection for an intermediate copy would not by itself establish the lawfulness of reproduced expression delivered to a user, and the conclusion concerning the outputs before the DHC should remain tied to that record [[¶271]](https://indiankanoon.org/doc/93327052/#p_563). I therefore keep access to the source, storage during retrieval and the resulting answer separate without suggesting that the boundaries between them eliminate their factual connections.

## What I would require of the prohibition

If clause (c) is the relevant defence, the inquiry requires a statement attributable to the right holder that expressly concerns the links, access or integration at issue, rather than treating an unexplained 403 or an objection to training as necessarily sufficient. [ESSAY 001](https://manrajchandpuri.com/lex/essays/who-speaks-for-the-server) examines attribution in greater depth, while [PROTOCOL 001](https://manrajchandpuri.com/lex/protocols/understanding-tdm-reservation-protocol) explains why even a clearly parsed signal may leave its legal scope unresolved.

I would encourage a publisher to describe the relevant use in clear prose and maintain a consistent structured expression where available, but I reject importing the European machine-readability requirement into a clause that does not state it. The allocation of interpretive responsibility proposed in [ESSAY 003](https://manrajchandpuri.com/lex/essays/the-human-readable-problem) is a practical recommendation whose relationship to legal sufficiency must be assessed under the applicable provision.

The complaint procedure in the proviso also needs independent attention because a published objection is not a completed statutory complaint, and [rule 75 of the Copyright Rules, 2013](https://www.copyright.gov.in/Copyright_Rules_2013/chapter_xiv.html) requires particulars concerning the work, the infringing copy and the grounds of complaint, together with the undertaking to seek the necessary court order. Posting a signal cannot automatically activate the temporary restraint procedure or establish infringement, since those conclusions depend on additional conditions and any competing defence.

I therefore propose a question about a defined copy rather than a general veto over a technology, asking whether its storage falls within clause (c), whether an attributable and appropriately scoped prohibition affects that defence, and whether another route independently protects the dealing. That inquiry gives a publisher’s instruction legal work to do where the statute permits it, while leaving the developer the opportunity to establish the defence its actual conduct supports.