Navigating the Legal Landscape: Artificial Intelligence and Intellectual Property Rights

Navjot Tyagi,

Babu Banarasi Das University, Lucknow.

INTRODUCTION:

With the rise of AI, science has propelled intelligent technology forward. Robots have become commonplace, impacting society in various ways. This brings new legal challenges and changes in behaviour. This article focuses on intellectual property protection for AI and analyses its impact on legal rules. By understanding and adapting to this relationship, we can promote AI development and unleash greater creativity.

DEMYSTYFYING ARTIFICIAL INTELLIGENCE (AI):

AI refers to machines being able to perform cognitive tasks or human intelligence processes namely, learning, thinking, reasoning, decision-making and many more. AI system learns from experiences and utilizes this learning to reason, recognize images, solve technical and complex issues, understand languages, and create perspectives. Professor John Mc Carthy was the first to come up with the term “Artificial Intelligence”. AI is basically machines showing intelligence. It is a branch of computer science that desires to make machines as intelligent as humans[i]. 

Types[ii] – 

Based on AI’s capabilities- 

Ø  Weak AI 

Ø  General or Strong AI 

Ø  Super or Super intelligent AI 

Based on AI’s functionality-

Ø  Reactive Machines Limited memory.

Ø  Self-Awareness AI (is in the realm of science fiction for now)  

The legal challenges that arise when it comes to AI and protecting intellectual property:

AI Systems can perform complex calculations, compose songs, make poetry in just a spur of the moment. But one of the legal issues which arise is whether the AI generated creations should be treated in a similar way as human made creations under Intellectual Property (IP) Laws?

I. The first issue delves into copyright for AI creations, addressing authorship, ownership, legal personality, and separate protection system.

Copyright grants creators the right to their literary or artistic creations such as novels, paintings, and many more. 

SHOULD AI PRODUCED CREATIVE WORKS BE GRANTED COPY RIGHT PROTECTION?

Writers and AIs both create work based on existing ideas. Copyright protection can extend to AI creations that learn from past experiences.[iii]. In Cummins v. Bond[iv][v] , it was observed that the non-human nature of the source shouldn't prevent copyright protection. For a work to be original, it must not be copied from another similar work, as stated in Alfred Bell & Co. v. Catalda Fine Arts, Inc.6 This means AI's creative work can receive copyright protection. If AI-produced content isn't safeguarded, companies that invest heavily in AI will be adversely affected. People could use AI creations without restrictions, making money without their own effort, challenging the original investors. This would discourage innovation and decrease investment in AI technology[vi].

WHO SHOULD BE CONSIDERED AS HOLDER OF COPYRIGHT FOR AI CREATIONS?

Countries like England[vii] & New Zealand[viii] have widened the definition of copyright to include AI created works. Section 9(3)[ix][x] of The UK Copyright, Designs and Patents Act, 1988 the person who makes preparations for such type of works is the author that is the programmer, or the entity which owns the AI.  However, according to others it’s the user of AI System who should be identified as author. The European Parliament has made efforts to extend copyright protection to “electronic person”.  Saudi Arabia has made humanoid robot Sophia as its citizen. 

ARGUMENTS AGAINST:

In Bleistein v. Donaldson Lithographing Co.11 the Court laid emphasis on the human personality’s importance as a major requirement for copyright.

The CONTU[xi] stated that development of AI that can create original work is not something that can happen right now[xii]. 

According to what Lady Ada Lovelace (the first programmer who predicted AI) said there is no creativity or constrained creativity in machines because they abide by strict rules and lacks spontaneity whereas creativity is doing things in unpredictable and non- obvious manner.

Countries like Germany & Spain which do not recognize AI as a legal entity or personality which is a necessity to hold copyright. 

If AI is recognized as author by the copyright system then it would amount to placing AI in the same position as humans and this could result in destroying human creativity in the long run. 

Copyright protection also means giving moral rights to the authors. In Amar Nath Sehgal v. Union of India[xiii], it was stated that such rights have a connection to the sentiments of the author, which AI being a machine can never possess.

CAN AI BE RECOGNISED AS AUTHOR?

The OTA[xiv] holds the view that AIs can be seen as valid co-authors of copyrighted works.[xv] But AI doesn’t possess the same features as we humans do. Humans have capability to decide whether AI system must be utilized. Some scholars believe that AI should be granted a legal personality while others opposed this idea since AI lacks emotions, perceptual ability, & will.

INDIAN SCENARIO[xvi]:

There are two doctrines to find whether a work is original - the Sweat of the Brow Doctrine & the Modicum of Creativity. The Indian Courts have applied the latter doctrine[xvii] which mentions originality lies in the creation with enough intellectual creativity if it’s not  too high.

In Indian Context the one who causes such work to be created is the author[xviii]. This poses a challenge to copyright protection of AI created tasks since they are not recognized as legal persons. This creates ambiguity.

CAN AI CREATIONS BE SAFEGUARDED THROUGH A sui generis SYSTEM?

Yes this is a possibility. The countries can recognize non-human authorships. A sui generis system[xix] can be useful for safeguarding AI creations though the duration for copyright protection might be low so that human authors are not left behind in the process of protecting the rights of AI authors.

II. SECOND ISSUE DEALS WITH AI INVENTORSHIP AND PATENTABLE SUBJECT MATTER AND GUIDELINES FOR AI INVENTIONS[xx].

CAN AI PRODUCED CONTENT BE CONSIDERED AS A PATENTABLE MATTER?

It’s necessary to provide patent protection to AI inventions or its development and innovation. It’s unreasonable to deny patent protection on the ground that AI is non-human. AI inventions could be eligible for patent protection. AI-generated solutions contribute to the advancement of science and should be granted patent status[xxi].

Arguments against: Novelty is sine qua non for obtaining patent that is, production of a different invention then what exists in the prior art.[xxii] For AI this is a difficult process as it works to achieve certain objectives only. Granting patent protection to AI can be challenging because computers lack the emotional attachment that human inventors possess. Patents are meant to protect the inventor's connection to their creation, but opponents argue that computers don't have strong opinions about how their inventions are used. Additionally, patent protection requires disclosing initial data and the people involved in training the AI.

CAN AI BE NAMED AS AN INVENTOR?

The AI inventor debate is ongoing. Some say AI can invent, others disagree. Current law doesn't recognize AI as inventors. Recognizing human contribution could be a solution.

Removing the "flash of genius" test also supports this inclusion.

INDIAN SCENARIO[xxiii]:

THE PATENT ACT, 1970 Section 2 (p)[xxiv] of the Patents Act defines "patentee" as the registered grantee of the patent. Section 2 (t)[xxv] defines "person interested" as someone engaged in research in the same field. Section 6[xxvi] lists who can apply for a patent, including the true and first inventor. Although Section 2 (y)[xxvii] doesn't specify that the true and first inventor must be human, other definitions suggest a preference for humans and legal persons.

Amendments may be needed to align with evolving society and scientific systems.

WHAT SHOULD BE DONE?

IP laws help in safeguarding society from unethical inventions. It's important to identify AI inventions that don't deserve IP protection. To be protected by IP laws, AI must not work in a biased or discriminatory manner. Short-term patent protection can be beneficial in this regard.

III. QUESTION OF LIABILITY IF AI INFRINGES IP LAWS?

When AI creates content that replicates copyrighted material, it becomes a debate on who is liable for the violation of IP laws.  Sometimes, it becomes challenging to determine where the violation occurred, as AI’s workings are not always transparent. One possible solution is to create exceptions for the data used in AI learning. Japan has already extended its laws to provide exemptions for data in AI learning, recognizing the importance of data access for AI development[xxviii].

CONCLUSION

To wrap up, the increasing importance of AI demands a well-designed legal system that protects data and determines authorship and inventorship. Such laws would encourage creativity, innovation, and fair competition. A balance should be maintained between embracing the benefits of AI and addressing the challenges it poses to IPR.  

REFERENCES

[i] This Definition is attempted by synthesizing various definitions on Artificial intelligence.

[ii] Retreived from https://www.geeksforgeeks.org/machine-learning-types-of-artificial-intelligence/ (last visited on Feb 11, 2024).

[iii] Swapnil Tripathi and Chandni Ghatak, Artificial Intelligence and Intellectual Property Law, Vol. 7, No. 1, Christ University Law Journal, 83, 88, (2018).

[iv] (1927) 1 Ch. 167.

[v] F.2d 99 (2d Cir. 1951).

[vi] Pamela Samuelson, “Allocating Ownership Rights in Computer-Generated Works” 47 University of Pittsburgh  Law Review 1185 (1986).

[vii] The Copyright, Designs and Patents Act, 1988, § 178.

[viii] The Copyright Act,1994, § 2.

[ix] The Copyright, Designs and Patents Act, 1988, § 9 cl. 3.

[x] U.S. 239 (1903).

[xi] The Commision on New Technological uses of Copyrighted Works.

[xii] Final Report,NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF 

COPYRIGHTED WORKS 4 (1978), http://eric.ed.gov/PDFS/ED160122.pdf. (last visited on Feb11, 2024).

[xiii] 2005 (30) PTC 253 (Del).

[xiv] Office of technology Assessment

[xv] U.S. Congress, Office of Technology Assessment, lntellectual Property Rights in an Age of Electronics and Information, (April 1986), https://www.princeton.edu/~ota/disk2/1986/8610/8610.PDF  (last visited on Feb 11, 2024).

[xvi] Karthiayani A, Artificial Intelligence And Intellectual Property Laws In India: Is It Time For Renaissance?, Volume 1, Issue 2, IJLMH, 1, 3, (2018).

[xvii] Easterb Book Company v. D.B. Modak, 2008 1 SCC 1.

[xviii] The Copyright Act, 1957 §2 cl.d(vi), Act No. 14, Act of Parliament 1957(India). 

[xix] V.K. Ahuja, ARTIFICIAL INTELLIGENCE AND COPYRIGHT: ISSUES AND CHALLENGES, ILR Law Review Winter Issue,270, 275 (2020).

[xx] AI and Intellectual Property Rights, India AI, https://indiaai.gov.in/ai-standards/ai-and-intellectual-propertyrights (last visited on Feb 11, 2024).

[xxi] Swapnil Tripathi and Chandni Ghatak, Artificial Intelligence and Intellectual Property Law, Vol. 7, No. 1, Christ University Law Journal, 83, 94, (2018).

[xxii] Id. at 92. 24 Id. at 94.

[xxiii] Karthiayani A, Artificial Intelligence And Intellectual Property Laws In India: Is It Time For Renaissance?, Volume 1, Issue 2, IJLMH, 1, 4, (2018).

[xxiv] The Patents Act, 1970 §2 cl.p, Act No. 39, Act of Parliament 1970(India).

[xxv] The Patents Act, 1970 §2 cl.t, Act No. 39, Act of Parliament 1970(India). 

[xxvi] The Patents Act, 1970 §6, Act No. 39, Act of Parliament 1970(India). 

[xxvii] The Patents Act, 1970 §2 cl. y, Act No. 39, Act of Parliament 1970(India). 

[xxviii] V.K. Ahuja, ARTIFICIAL INTELLIGENCE AND COPYRIGHT: ISSUES AND CHALLENGES, ILR Law Review Winter Issue,270, 283 (2020).