Paper Details
Paper Code: RP10V12023
Category: Research Papers
Date of Publication: December 06, 2023
Citation: Ms. Sudhangee Handoo, “Navigating the Realm of AI Creations and Intellectual Property”, 1, AIJIPCA, (2023).
Author Details: Ms. Sudhangee Handoo, Student, Presidency University, Bangalore
ABSTRACT
Imagine where the computers we work on gain the capability to think on their own and have a human-like mind of their own. From setting a reminder on our gadgets to booking concert tickets for our favourite artists, Artificial Intelligence (AI) has taken over our day-to-day chores. We live in the realm where AI writes poems, can generate melodies, and whatnot. So the question arises about the ownership and the legal rights associated with the inventions of AI. In today’s world where technology is taking over the world, AI has emerged as an innovative as well as a revolutionizing way, the way we interact and use the digital realm. AI has started to affect many industries; Intellectual Property Rights (IPR) hasn’t been left out. The determination of ownership and protection in the context of AI depends heavily on IPR. The revolution of AI can be looked at in major two folds, i.e., one being the positive changes AI has brought, and how the inventions and creation done by AI are extremely beneficiary in the area of patent protection where it can tell if an idea has already been used by someone else. The second is, that the implementation of AI has the potential to significantly alter the current intellectual property system, creating new issues with ownership, creation of property rights, and infringement. etc. In this paper, the main objective is to explore the developments in the international aspects and, how the IPR has been modified to cope with AI and Comparative Analysis of Ownership and Legal Rights.
KEYWORDS
Accountability; Artificial Intelligence (AI); Intellectual Property (IPR); Innovation; Ownership
Introduction
AI is emerging as a new trend where people around the globe have been struck with the gaze of it and how it can make one’s day-to-day life sorted. The ability of a computer program to solve a problem or make a decision in a situation, that is, the program itself finds the approach that should be taken to resolve the problem or make a decision, to identify the similarities between various situations, is referred to as artificial intelligence. Artificial intelligence is defined as a science that aims to understand the nature of human intelligence through the work of a computer program. It also means the ability to simulate intelligent human behaviour.[1] AI has now become the most transmuting or we can say a metamorphic force in several industries. With the moving time, AI has made a way in everyone’s life, be it in the way of a digital voice assistant, i.e., Siri or Alexa, or be it Chat GPT which is developed by “Open AI”, which makes our search struggle easy. With AI gaining dominance, the question that arises is who will get ownership of the creations made by AI, will it be the machine that created it without the intervention of a human or will it go to the creator of the machine or the software? Talking about India, which is known for its rapid development in the area of technology, the growth of AI, and its ownership it remains unanswered and a challenging issue that needs an intricate comprehension of current laws and the dynamic nature of AI technologies. Even the judiciary has sought out AI, the world's first online court heard its first case in 2017, using AI to prepare judgments and facial and audio recognition to digitally compile trial records[2].
Since AI does not hold a legal identity, unlike a company which holds its own identity, a company can be held liable or given ownership of certain things. Now AI has become much smarter because of technology, computer is getting faster day by day. The size of the worldwide AI market was estimated at “USD 136.55 billion in 2022 and it is anticipated to increase at a CAGR of 37.3% from 2023 to 2030”[3]. Nonetheless, it can be said that the development in the tech world has allowed AI to create its own creations. Further, it has been stated that in the next 40-45 years there is a 50% chance that AI will outperform humans in all sorts of tasks.[4] The increase in the creation and innovation by AI, it has increased hurdles for customary intellectual property rights, which gives protection to all sorts of legitimate creations as well as inventions. It faces hurdles like authorship and ownership uncertainty, originality and creativity criteria, etc. Within the context of conventional Intellectual Property Rights (IPR), the landscape of authorship and ownership is experiencing a significant change. The rise of AI-generated material poses a puzzling quandary, as traditional IPR centres on identifying human authors and creators. Since AI does not have a distinct human identity, it is unclear whose property it is creating. The fundamental nature of ownership is disrupted by this ambiguity, leaving the copyright and patent industries facing a conundrum that goes against accepted conventions. As the lines between human and machine creativity are blurred, the fundamental IPR principles—which have historically relied on human authorship—must now forge ahead through uncharted territory.
The key issue in the AI context is who should be listed as the inventor in a patent application for an AI-generated product. There is a school of thinking that claims AI-produced inventions should be considered public domain. The biggest issue with this strategy is that it would deter individuals from investing in the creation of innovations due to a lack of incentives. Accordingly, it is thought that giving the inventor of the AI systems the patent rights for the products they develop is essential for the entrepreneurial environment. It can be said that, fruits that fall naturally on nearby land are considered to belong to the owner of that land, unless it is a public use land. If we take an instance of the UK’s stand in the authorship as well as the ownership of patent rights, whether it should be given to a “the machine”, where it invents something on its own, was answered by the court of appeals in the DABUS case[5], where an appeal was filed in various countries by Dr Stephen Thaler for an invention done by a machine of his named DABUS[6], which was rejected, because a “machine” does not hold any legal identity unlike any human or even a company. DABUS was specifically programmed to read and substitute a few characteristics of a human brain. DABUS invented two inventions namely – a flashing light that attracts more attention and a more efficient beverage container. The appeal was also rejected by the court of appeals, where it was held that to apply for an invention the creator must be a human and upheld the UK’s Patent Act criteria for the creator of an invention and stated that an AI cannot be listed as an inventor under patent protection. On one hand, we have countries that have supported the judgment of the UK court and relied on them. The UKIPO's[7] decision to deny Dr. Thaler's application was supported by the European Patent Office as well as the United States Patent and Trademark Office which they stated that to file a patent application, the inventor must be a natural person with legal capacity, according to both courts.
On the other hand, Dr. Thaler's application was granted by the South African IP Office. Whereas the German court in their judgment did allow the application of Thaler, but in an innovative way, where it recognized that DABUS did play a crucial role in the invention while listing Thaler as the main inventor.[8] The South African IP office while granting the application of Thaler stated that “the main factor which is looked at while granting a patent application is that the application forms and the fees are in order with the specified document attached, and if this procedure is duly followed by the applicant, the patent will be granted by the CIPC[9].” By this, we can say that countries are trying to get AI-friendly while accepting patent applications and trying to amend their laws as per the need.
Whereas India while examining the application of Thaler, declined the application by stating that it could not pass the technical examination as well as it was not recognized as a person under section 2 and section 6 of Indian Patent Act, 1970. The court relied on the precedent judgment of the case of V.B. Mohammed Ibrahim v. Alfred Schafranek,[10] where the court emphasized the involvement of a human in an invention, where it stated that neither a financing partner nor a corporation can solely be named as an inventor because an invention needs a direct human skill. Whereas the standing parliamentary committee of India differs from the above-stated viewpoint and has recommended the Department of Commerce make relevant and necessary changes in the Indian Copyright Act 1957 as well as the Indian Patent Act 1970, to make them more AI-friendly and to introduce a strategy that connects mathematical methods or algorithms to a concrete technical device or practical application. For the same, a report[11] was introduced in the Rajya Sabha in 2021, which recommended the Department of Commerce revisit the existing laws.
These are the few cases where several countries have laid down guidelines in patent protection for inventions generated by the help of AI. But now if we talk about innovative creations or acts created by AI, is it eligible for copyright protection? European Union 2019 introduced the EU’s Copyright Directive, which stated that content generated by an AI will be eligible for copyright, provided that the content generated is not a pure work of AI and has some human involvement, i.e., the result which was generated by the AI was influenced by the several choices made by human intervention. Whereas, in India, the concept of AI-generated material is still under a shadow, which needs to be looked at again to shed light on the same issue. In introducing and regulating laws related to AI, India’s stand is yet not clear. But in June 2023, the MeitY[12] will revisit the traditional laws, and look into the growth of AI, which was hugely influenced by the stand of the European Union, where their committee has adopted AI-friendly laws. If we take another example of a country that is ahead and is adopting AI-friendly laws, it is China, where an approach for the patentability of AI-generated creation is eligible for patent protection was introduced in 2016, and in 2021 few guidelines were introduced which stated that, if the particular criteria is met by the invention of AI, it will be eligible for the legal rights. It can be stated that India is yet to adopt an AI-friendly approach with respect to IPR, and is still tangled within its traditional laws, whereas many other nations have responded positively towards the growth of AI and have adopted their legal framework accordingly, and India is trying to make a clear stand.
[1] Jamal bin Subaih Al-Hamlan Al-Sharari, The Impact of Artificial Intelligence on the Quality of Administrative Decision from the Point of View of Secondary School Leaders in Al-Jouf Educational Region, Volume 8, Part 1, Solouk Magazine, Ibn Badis University Mostaganem, Algeria, 2021, pp. 18-19.
[2] Changqing Shi, Tania Sourdin and Bin Li, ‘The Smart Court – A New Pathway to Justice in China?’ (2021) 12(1) International Journal for Court Administration 4.
[3] “Artificial intelligence, market size, share entrance analysis report by solutions, by technology (deep learning and machine learning), by end-use, by region, and segment forecasts, 2023- 2030:” available at: <https://www.grandviewresearch.com/industry-analysis/artificial-intelligence-ai-market> accessed on July 22, 2023.
[4] J. SALVATIER - A. DAFOE - O. EVANS - B. ZHANG - K. GRACE, “When Will AI Exceed Human Performance? Evidence from AI Experts”, ARXIV, 2017.
[5] Stephen Thaler v Comptroller General of Patents Trade Marks and Designs [2021] EWCA Civ 1374.
[6] Device for Autonomous Bootstrapping of Unified Sentience.
[7] Intellectual Property Office of the United Kingdom.
[8] COMMENTARY, Patents and AI inventions: Recent court rulings and broader policy questions.
John Villasenor, available at: <https://www.brookings.edu/articles/patents-and-ai-inventions-recent-court-rulings-and-broader-policy-questions/> acessed on 12 July 2023.
[9] Companies And Intellectual Property Commission, South Africa.
[10] AIR 1960 Mysore 173.
[11] Report 161: Review of the Intellectual Property Rights Regime in India, available at: <https://sansad.in/getFile/rsnew/Committee_site/Committee_File/ReportFile/13/141/161_2022_5_12.pdf?source=rajyasabha> accessed on 10 July 2023.
[12] Ministry of Electronics and Information Technology, India.