Artificial Intelligence in The World of Intellectual Property Rights

Artificial intelligence (AI) has been in this world for quite some time yet it still doesn’t cease to amaze us. It all started when in 1955 the “Logic Theorist”, was used to do automated reasoning, by Newell and Simon. AI is reaching new heights every day as it can cook, sing, talk and do all the activities that a normal human being can do, and more. India too is not far behind and has had many successful attempts in the field of AI like the Indian robot Rashmi who was the first robot to speak in Hindi.

Artificial Intelligence are technological creations that have an ability to think and learn i.e. they can make their own choices, like a human. The term ‘artificial intelligence’ was formally coined by Mr John McCarthy, a computer scientist at a conference in 1956[1]. The most prominent changes brought by AI to the world are in the fields of transportation, telecommunication, natural and speech processing and life and medical science.

Whereas, Intellectual property rights or IPR are those legal rights which aim to protect the creations of the intellect, made by growing yet unique human intelligence. These creations are not yet made by anyone else and thus are introduced to the world by the creator.

As the world is changing rapidly with these new and unique technological changes the need for laws that would regulate and govern them were needed too. Artificial Intelligence in the world of IPR has raised some interesting questions in intellectual property rights, especially in patents laws and copyright

The World Intellectual Property Organisation (WIPO), an international organisation that maintains the intellectual property rights around the world, has identified three types of Artificial Intelligences[2]:

  1. Expert systems are the programs that solve problems of specific fields like diagnosing medical conditions, recommending treatments etc.
  2. Perception system allows the computers to perceive the world using the sense of sight and hearing, this program is used by topologists, context experts etc.[3]
  3. Natural-language program is used to understand the meanings of words and to provides a semantic analysis using grammatical and textual contexts.

Copyright

Copyright, a part of intellectual property right, is needed in the world of artificial intelligence as it is needed to copyright any new invention so that the inventor can gain profit from his invention without it being copied by another. It is the legal right granted to the creator of original work, allowing him/her exclusive rights for its use and distribution. The following two requisites must be fulfilled so that copyright can be given

  1. The work should be in a tangible form.
  2.  The work should be original.

In the case of Burrow Gilles Lithographic V Sarony[4], which revolved around the issue of whether copyright protection can be granted to a photograph, the court was confused on whether to give copyright to a product issued by a machine the court took the strict approach in this case and it was decided that mechanical labour is not creative and thus copyright was not given.

Those who are against granting copyright to AI argue that machines lack the creativity that human has, due to its rule-bound behaviour, they believe that creativity is the ability to do the unpredictable, whereas computers process use existing data and deduce work on those pre-existing data, systematically.

In the case of Cummins v Bond[5] an author inquired whether a work can be registered as Jesus, it was held that non- human nature of the work should not be considered as the bar to copyright and thus, AI which is also non-human, should also get copyright. Thus, changes in the legal world were being brought so that AI can also be a part of it.

Contradictorily to the International Patent Law, International Copyright Law raised some new issues when People’s Court of Nanshan District Shenzhen, China decided that an article by AI software Dreamwriter is protected by copyright, as it was found that the article had certain originality and met the requirements of copyright law. But, as the article also contained a disclaimer that it was written by Tencent Robot Dreamwriter and since AI lacks any ethical cognitive ability to acknowledge its creative expressions, the court ordered Shanghai Yingxun Technology Co. Ltd. Damages of $216.02. The European Union too has encouraged its nations to include copyrightable works of computers as ‘own intellectual creation’

The question that arises frequently is who would claim the copyright as it is usually held in the name of a human, which AI is not unless its creator is granted the right on its behalf. But what will happen if the AI system was a purchase, will the copyright be granted to the creator or the buyer? The answer is the creator as in countries like England and New Zealand, the copyright in works authored by AI is given to the programmer, through legal fiction.

Another major problem is to determine the nature of the criminal liability of an AI. When AI was created, no one expected it to reach where it is today, they may even become an independent entity in the near future and a pertinent question regarding their possible criminal liability will then arise.[6] If the current stance continues, it will be the creator who is liable, despite him lacking the mens rea or actus rea for such an act.

Patent

The patent also has importance in this new world of AI, as it is important to patent an invention so that no other can copy it and gain its profit. It is an exclusive right over an invention, i.e. a product or process[7]. The patent holder has a right to exclude others from manufacturing or selling their invention, creating a monopoly of the patent holder, AIs are already so advanced that they can also now create their own new and unique inventions. One of the first patents for AI was filed in 2015.

The Patent law gives exclusive rights of the patent to the first and true inventor, specifically a natural person only. The specificity if a natural person was highlighted when the European Patent Office in 2020 refused the invention of two AI that were listed as inventors of the food container. The European Union Intellectual Property Office (EUIPO), rejected a claim, as the inventors were AI’s not natural people. The application was filed by “Artificial Inventor Project” who filed for an application for AI’s in seven other countries including the UK who also rejected their application noting that the inventors have to be human beings

To thoroughly understand the possibility of the patent in the field of AI one must understand that AI is not a single invention but a merger of many, it is difficult and nearly impossible to claim them as individuals. In India there exists an absolute ban on the patentability of computer programmes unless it has some technical contribution or effect, this is quite difficult to establish in an AI. As per section 3 (K) of the Indian Patent Act, mathematical methods, computer programmes or algorithms are non-patentable subject matters.

Subsequently, in most countries, it is an offence to list a person as an inventor who does not contribute to the invention. The main question in determining inventorship is who conceived the invention thus, one must contribute to the conception to be an inventor as human creativity is essential for making any invention, even in AI. A new question that arises is when a machine self develops and effectively invents will the initial human inventor be given the title of this invention too. Some argue that an “electronic person” should be considered to be the owner of a patent.

A threshold question in granting a patent to AIs is whether it can fill the patenting criteria or not,

  1. It has to possess novelty i.e. to be different from any prior art; AI’s have information of any prior similar art but are they truly independent and can they make a judgement?
  2. Take an inventive step and be capable of industrial application. Previously, the Court has denied patents to programs, because what they perform is mechanical rather than inventive[8] , as AI is primarily running on computer programs devised to perform certain functions, subject to variations made by its human inventor.

Many argue that to be an inventor there must be a moment of conception, i.e. the idea must  be conceived in the mind of the inventor first, their opposition negate the idea by arguing, that as an invention is something leading to the advancement of the science, then the process of how it arose in the mind of the inventor, becomes irrelevant[9]. Opponents of patents protection being granted to AIs argue that computers lack any attachment to their invention as human inventors do, this makes them incapable of having strong opinions about the manner of use of their invention, thereby defeating the very purpose behind a patent protection.

In the view of Stephen Hawking, the autonomy of AI can diminish the worth of human thinking and invention thus, is a more collaborative form of patent protection for the inventions made by an AI shall be made. This is because a human element is very essential in managing the rights and obligations associated with patents, which cannot be done solely by a machine. Thus, as artificial intelligence is getting more smart and independent day by day, changes in our laws should be made to make clear any future misunderstanding that may arise in IPR due to AI, including clearing the difficulties of who should be held criminally liable the creator or the creative thinker that the AI will eventually become. AIs should also be added in the data protection act as a preparation for the technological future. Thus, the laws of IPR are changing with the developing world and the world should be prepared for it.


[1] 1 Prof. A. Lakshminath & Dr Mukund Sarda, Digital Revolution and Artificial Intelligence- Challenges to Legal Education and Legal Research, CNLU LJ (2) (2011-2012)

[2] A. Johnson-Laird, Neural Networks: The Next Intellectual Property Nightmare? , 7 THE COMPUTER LAWYER 14 (March 1990)

[3] R. KURZWEIL, THE AGE OF INTELLIGENT MACHINES, 272- 275 (MIT Press: 1990)

[4] 111 U.S. 53 (1884)

[5] (1927) 1 Ch. 167.

[6] Prof. Gabriel Hallevy, AI v. IP- Criminal Liability for Intellectual Property IP Offenses of Artificial Intelligence AI Entities, ONO ACADEMIC COLLEGE,https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2691923.

[7] Patents, WORLD INTELLECTUAL PROPERTY ORGANIZATION, Http:// http://www.wipo.int/patents/en/.

[8] Bilsk v. Kappos, 561 U.S. 593 (2010).

[9] Supra note 43.

Arushi Verma from Symbiosis Law School, Noida

Arushi likes to read and write on various issues of our society. In her leisure time you can find her painting or dancing, as she has won many competitions in both of these fields

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