Consent without Disclosure: Trade Secrets, Copyright and the Black Box of AI Training Data in India
DOI:
https://doi.org/10.55662/SALRJ.2026.1201Keywords:
trade secrets, AI training data, consent to be recorded, consent to become training data, physical AIAbstract
When a Bengaluru home-services start-up, Pronto, was reported in May 2026 to be using in-home cameras during service bookings, and declined to say whether the resulting footage would feed India's emerging ‘physical AI’ and robotics industry, it exposed a gap that copyright and privacy scholarship in India have so far examined separately: the space between ‘consent to be recorded’ and ‘consent to become training data’. This essay argues that trade secrecy — which AI developers routinely invoke to withhold details of the origin, composition and downstream use of training datasets — functions as a shield that can render both the Digital Personal Data Protection Act 2023's consent architecture and the Copyright Act 1957's infringement remedies practically unenforceable. Drawing on comparative material from the European Union's AI Act and on recent litigation in the United States, the essay develops a four-part ‘Legality-Relevance Test’ and a five-layer disclosure model suited to Indian civil procedure.
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References
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Defend Trade Secrets Act 2016, 18 USC § 1836 (US). Several commentators note that this gives US courts a settled threshold — reasonable secrecy measures plus independent economic value — against which an AI developer's confidentiality claim over training data can be tested; no equivalent statutory anchor exists in India.
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Digital Personal Data Protection Act 2023, s 6(1). DOI: https://doi.org/10.69554/LXHZ9342
Justice K.S. Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
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National Commission for Enterprises in the Unorganised Sector, Report on Conditions of Work and Promotion of Livelihoods in the Unorganised Sector (NCEUS 2007), referenced in the statutory definition of the unorganised sector used across Indian labour policy.
NALSA (Legal Services to the Workers in the Unorganised Sector) Scheme 2015, issued under the Legal Services Authorities Act 1987; see also Legal Services Authorities Act 1987, ss 12(f) and 12(h), extending free legal aid to industrial workmen and to persons below the prescribed income threshold respectively.
Case C-203/22 CK v Magistrat der Stadt Wien EU:C:2025:117.
Digital Personal Data Protection Act 2023, s 6(4), guaranteeing a right to withdraw consent 'with the ease of doing so being comparable to the ease with which such consent was given'. Licensed under CC BY-NC-SA 4.0 8
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