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  • Writer's pictureIPTT Team

Intellectual Property Right, Innovation and Artificial Intelligence.

Updated: May 6, 2020

Human civilization has come a long way since the times of using stone age and iron age implements for addressing all aspects of human existence. The basic urge to improve the quality of life by using tools is perhaps hardwired into the human brain as evidenced by many inventions.

One basic characteristic of all human inventions has been that though they helped reduce the drudgery of humankind, they were designed to merely obey human commands and perform jobs. With the massive scientific, medical knowledge on human brain anatomy, neutral networks and the computational power being made available these days, it is now possible to design machines that think like humans, and possess all the traits that a human brain encompass(for eg: a humanoid robot)  and thus the concept of Artificial Intelligence (AI) comes into picture.

The future armed forces may likely be manned by humanoid “beings” who will carry out war operations on behalf of the country owning them making situations and process easy.

So the major question today is, what is Artificial Intelligence, how does it impact Intellectual Property Right and innovation?

To begin with, Intellectual Property Rights are the rights given to persons over the creation of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period.

Also, Intellectual Property Law deals with the rules for securing and enforcing legal rights to designs, inventions and artistic works. Just as the law protects ownership of personal property and real estate, similarly it protects the exclusive control of intangible assets.

Coming to Artificial Intelligence, AI is no more an alien concept. The division of science that deals with making machines equipped with human-like intelligence to act in human-like fashion and to exhibit human-like capabilities is known as Artificial Intelligence(AI).

AI has been a technology with promise for decades. The ability to manipulate huge volumes of data quickly and efficiently, identifying patterns and quickly analyzing the most optimal solution can be applied to thousands of day-to-day scenarios. AI can also provide solutions to age old issues and challenges.

For eg, Traffic Management. Today traffic travels slower than ever, despite plethora of new systems being added to better manage the system.

AI can change this and harvest data on traffic volumes, historical trends and current blockages to quickly calculate the most optimal solution for traffic. Also as AI can work 24*7 on 365 days, dispute management can be done anytime even on holidays.

Intellectual Property (IP) is another market where AI could have a deep-rooted effect.

Francis Gurry said; “ The deployment and use of AI technologies will have implications both for intellectual property law and policy and the administration of IP systems around the world”[1]

Artificial Intelligence is a new digital frontier that will have a profound impact on the world. It will have enormous technological, economic and social consequences and is going to transform the way in which innovation takes place.

The broad use of AI will also transform established IP concepts such as patents, designs ,literary and artistic works, and so on.

Artificial Intelligence  V/S  Intellectual  Property Right

There have been many discussions and scholarly publications towards the AI’s effects on IPR regime.

For instance, in the wake of a court decision involving a selfie-taking monkey, the United States Copyright Office updated its interpretation of “authorship” in 2016 to clarify that it will not register works produced by a machine or a mere mechanical process that operates randomly or automatically. It stressed that copyright law only protects “the fruits of intellectual labour” that are “founded in the creative powers of the mind”

Various copyright offices across the world have already mentioned that they won’t register machine produced work. On similar lines confusion may arise when novel inventions are created by AI enabled machines. Without any human intervention, who will own the patents on novel inventions filed by AI machines? Will the machine/robot be the owner of future inventions? When ownership rights are distributed amongst different entities, which entity will be able to enforce such rights? And if an AI plagiarizes a creation or reproduces an invention, how will damages be determined? These are a few basic but perplexing questions which Patent laws now face.

Under U.S Patent Law, an ‘inventor’ is defined as an individual or a set of individuals who invent or discover the subject matter of the invention.  This definition eliminates patent grant to inventions to anything else besides humans. However, the ever-increasing involvement of AI in developing new technology has led the world to revisit the patent laws. Such perusal can be observed indistinctly in the attempt by the European Union to inspire nations to expand their national laws generally, to accommodate copyrightable works produced by computer and other devices, under the category of own intellectual creation. Though this is a liberal step in the direction of acknowledging creativity exhibited by these systems, while producing poetry, artwork etc., due regard must also be paid to include inventions and application of patents by AI systems and robotics.

Copyright Law and Artificial intelligence

Creating works using artificial intelligence has a very important implications for copyright law. Traditionally, the ownership of copyright in computer generated works was not in question because the program was merely a tool that supported the process of innovation and creation. But with the latest types of Artificial Intelligence, the computer program is no longer a tool, it actually makes many of the decisions involved in the creative process without human intercession.

Artificial Intelligence is already being used to generate works in music, journalism, gaming. These works in theory could be deemed free of copyright because they are not created by a human being. Thus, they could be freely used and reused by anyone. That would be detrimental to companies selling the works. For instance, imagine a person who invest millions in a system that generates music for certain online games, and eventually finds that the music is not protected by law and can be used without payment by anyone worldwide.

There are in general two ways in which copyright law can deal with works where human interaction is minimal or non-existence or to put it simply, where work is done by Artificial Intelligence:

-It can either deny copyright protection for works that have been generated by a computer, or

-It can attribute authorship of such works to the creator of the program.

Although, conferring copyright in works generated by artificial intelligence has never been specifically prohibited. However, law of certain countries are not amendable to non-human copyright.

Taking for instance, in United States, the copyright office declared that it will only register those works which is an original work of authorship, and that the work was actually created by a human being. The above instance flows from the case Feist Publications v. Rural Telephone Service Company, Inc. 499 U.S. 340 (1991). The case explicitize that copyright law only protects “the fruits of intellectual labour” and “that are founded in the creative powers of the mind”.

Also in  Acohs Pvt. Ltd. V. Ucorp Pvt. Ltd., Australia, the court declared that a work generated with the intervention of a computer could not be protected by copyright because it is not produced by a human.

Giving of authorship to the programmer is evident in a few countries like India, Hong Kong, Ireland, New Zealand and the UK. This approach is best encapsulated in UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), which states:

“in the case of literary, dramatic, musical or artistic work which is computer generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”.

Besides, section 178 of CDPA defines a computer-generated work as one that “is generated by computer in circumstances such that there is no human author of the work”. The idea behind such a provision is to create an exception to all human authorship requirements by recognising the work that goes into creating a program capable of generating works, even if the creative spark is enterprised by a machine.

Artificial Intelligence (AI) is pushing innovation in new ways and accelerating with technological advancements. As technology advances, so too does the ability to use AI tools in previously unachievable ways.

Intellectual Property protects and encourages innovation and creativity. As such it is important to be aware of key intellectual property considerations as applied to AI innovation.

Artificial Intelligence systems have been gaining widespread momentum in today’s tech-savvy world. With sophisticated technologies being incorporated, these systems with time start to produce marvellous inventions without human interventions of any kind. This brings forth pertinent questions concerning intellectual property rights, i.e, whether AI be an inventor and can thus be granted patents, trademarks, etc and whether can AI develop, file and grant patents, trademarks, copyrights similar to human agency?

We can say that even if computer generated works were to be granted IP protection, it is unclear how ownership of the IP rights subsisting therein would be resolved, given that computers currently lack the legal capacity to own property(ASSETS) and IP being an ‘Intangible Asset’. But considering that another type of non-human entity say for example corporation, already enjoys legal personality, so the grant of similar rights to computers would not be without precedent.

Also, if we assume that AI will be capable of conceiving the invention the question arises that whether a computer can be considered an “individual”, so as to fall within the definition of “inventor” and that even if an AI generated inventions were granted patent protection, who would own it? And that AI granting IPR would be a real threat towards the basic principles of Intellectual Property Rights.

Thus the pertinent questions as stated above remain unclear and unanswered.

In certain situations, a human element is essential in managing the rights and obligations associated with IPR. Additionally, we cannot completely submit to AI technologies, which would probably cut short the role of human race itself.

The current position of Artificial Intelligence (AIs) under Intellectual Property (IP) is troublesome, where, recognition of work generated by Artificial Intelligence (AI) is step towards future but its implementation however poses a real problem.

Prepared by: ADYA SINGH,(Team Leader), SHREYA SRIVASTAVA, PUBALI CHATTERJEE & SAMPURNA GHOSH ( Students Amity Law School Kolkata).

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