Paper Details
Paper Code: RP14V12023
Category: Research Papers
Date of Publication: December 06, 2023
Citation: Ms. Kripa V & Ms. Dikshi Manigandan Shalini, “Understanding the Intersection of Artificial Intelligence and Intellectual Property Rights”, 1, AIJIPCA, (2023).
Author Details: Ms. Kripa V, Student, Vellore Institute of Technology, Chennai &
Ms. Dikshi Manigandan Shalini, Student, Vellore Institute of Technology, Chennai
ABSTRACT
One of the most important topics of intellectual property law development is the relationship between artificial intelligence and the rights over human creation which is known as intellectual property rights (IPRs). Artificial intelligence systems have been gaining speed in today's rising tech-savvy culture thanks to increased technology, and it's only a matter of time before these systems start to make astounding discoveries without any human assistance. Intellectual property rights are a requirement for improved innovation or creative work protection. Artificial intelligence is currently an upcoming inventor and creator like Chat GPT or Bard. This urges the developers of certain Artificial intelligence to demand their IPRs. This essay studies the complex correlation between Artificial Intelligence and Intellectual Property Rights. National and International intellectual property rights treaties and conventions are also brushed upon in this essay. The authors discuss the support given to the developers and the struggles faced by them at the same time from the International point of view. The positives and negatives of offering IPR to Artificial intelligence are being contemplated. In-depth research on the relationship between Artificial intelligence and intellectual property rights has been attempted, explaining the need for one in another.
KEYWORDS
Artificial Intelligence; Creative Works; Inter-raction; Intellectual Property Rights; Tech-savvy
“Artificial intelligence is raising a broad and multi-disciplinary range of policy questions. One of the questions is the property and intellectual property”
-WIPO Director General Francis Gurry
Introduction
“Artificial intelligence (AI), also known as machine intelligence, is a branch of computer science that focuses on building and dealing with a generation that may discover ways to autonomously make selections and perform movements on behalf of a human being.”[1]Artificial Intelligence is known for its ability to produce any form of creative work in a way that humans are incapable of doing. AI has the potential to go through years of development due to the abundant possibilities. One such example is how almost all software websites and apps have started including tools like Auto Ducking for Audition and Premiere Pro which take on tiresome chores that previously devoured editors' time.[2]
Intellectual property rights can be defined as “Any and all rights related to intangible belongings owned via means of someone and are guarded in opposition to using without consent”[3]. IPR's primary goal is to promote innovation and creativity by incentivizing people and organizations to spend money on research and development and protect the inventors and creators by allowing them time-limited rights to regulate the use of their products. The purpose of IPR rules is to level the playing field for all market players and encourage healthy competition. Some worry that AI will ultimately replace humans and become more robust than humans, but others embrace AI breakthroughs and feel that it will improve the quality of human existence.[4] There is currently no specific legislation (in India or elsewhere) that addresses the most preliminary issue, "Who owns the intellectual property rights to a substance created by their invention?"
Unfolding Artificial Intelligence
Artificial intelligence is when computers, especially computer systems, mimic human intellectual abilities. The potential for AI to change how we live, work, and play makes it important. It has been used to successfully automate human-driven commercial operations like customer service, lead generation, fraud detection, and quality control. AI can do better than humans in a variety of fields. When it comes to repetitive and detail-oriented tasks, such as examining massive amounts of legal documents to ensure crucial fields are filled in accurately, AI systems usually complete tasks quickly and with few errors. [5] Artificial intelligence (AI) has come a long way since it was first developed, going from science fiction to a vital technology that is transforming businesses and people's lives all over the world. Because of developments in machine learning and natural language processing, AI is now a reality. The Tu-ring Test, created by Alan Turing in the 1950s to determine whether a machine could imitate human intelligence, served as the precursor to artificial intelligence (AI). The recent boom in AI is largely attributable to the development of deep learning techniques and large-scale neural networks, such as the Generative Pre-trained Transformer (GPT) series from OpenAI. The 2020 publication of GPT-3 is a brilliant example of how AI has progressed. Finally, the emergence of AI demonstrates the strength of human intellect and our never-ending search for knowledge. Accepting the benefits presented by AI while tackling its problems will be the key to unlocking a future in which AI acts as a force for good, propelling growth and prosperity for future generations.[6]
Intellectual Property: How has It Evolved over the Years?
Individuals are awarded intellectual property rights over their ideas and inventions. The owners are granted exclusive legal rights for the formation of intangible assets under law. The feature of intellectual property that is different from other forms of property is that it is an intangible asset that cannot be defined or identified by its own physical properties.
The word intellectual property typically refers to four distinct concepts that are frequently used interchangeably in the legal field: copyrights[7], patents, trademarks, and trade secrets. Industrial design rights, plant variety rights, geographical indications, and semiconductor integrated boards are a few other types of intellectual property rights that are observed. The initial patent-related legislation in India was Act VI of 1856 and the goal was to promote ideas and get innovators to divulge their creations' secrets.
In India, copyright law was first established in 1847 as a result of an East India Company-era ordinance[8].
WIPO
“The World Intellectual Property Organisation or WIPO is a global body for the promotion and protection of Intellectual Property Rights (IPR)”. The fast advancement of technology in the era of globalization has resulted in tough rivalry. Thus, protection and assurance of rights against infringements of inventions, creations, and discoveries must be coupled with IPRs[9].
Trips Agreement
The TRIPS Agreement is legal acknowledgment of the importance of intellectual property and economic linkages. The TRIPS Agreement is the only international agreement that specifically addresses intellectual property rights enforcement, including requirements for gathering evidence, interim measures, injunctions, damages, and other penalties.[10]India accepted the TRIPS agreement with other nations that were developing at the World Trade Organisation (WTO). There are 164 countries part of the TRIPS Agreement. [11]
NIPR
The Indian government created the National Intellectual Property Rights (NIPR) Policy in 2016 as a visionary effort to direct the future growth of Intellectual Property and its Rights in the nation. It appeared to provide a formal system for carrying out and keeping track of changes in both national and international intellectual property rights.[12]
How AI and IPR Revolve around Each Other?
The emergence of robots that can independently solve problems and even perform autonomous creative actions, known as artificial intelligence (AI), is one of the most challenging developments in human history. Could an AI entity be the owner of a legal right? Since it is still true that an AI machine is incapable of doing innovative actions, the question of a right being "held" by an AI machine by virtue of its regular activity does not arise.[13]In an alternative scenario, could rights to human-made innovations be handed to AI robots? Can such robots be considered legal people in the same way, and their power to enforce intellectual property rights respected? Despite the fact that there is an increasing need for non-human machines in legal and business operations, they still need to be rigorously monitored. Even now, hiring and firing choices are made by AI, which suggests that people are becoming more accustomed to robots acting impartially in disputed decisions. Artificial intelligence hasn't been widely used to produce content, and the outcomes have been largely disappointing.
E.g.: 1. A neural network program called AIVA (Artificial Intelligence Virtual Artist).
2. Because Naruto is not human, he is not an author under the Copyright Act.
3. Should Smart AI be granted intellectual property rights, and will such an arrangement serve the public[14]? In the same manner, the answer to this issue may eventually be linked to the future status of Smart AI. Implementing IPR in AI without process and safety records is a significant challenge.[15]
Can AI Invent by Itself?
DABUS is an artificial intelligence system that is alleged to have invented two items. DABUS patent applications have been submitted all around the world, with the claim that the ideas were generated by DABUS without the involvement of humans. The DABUS patent filings bring up complex AI-related IP policy issues.
The DABUS applications have been denied by several nations because the applicable patent rules need the identification of a human inventor. From a policy standpoint, it is important to consider whether IP law should continue to demand that a human inventor be identified if it should let an AI creator to be identified, or whether there are other options.[16]
DOES ARTIFICIAL INTELLIGENCE DESERVE TO BE GRANTED WITH INTELLECTUAL PROPERTY RIGHTS?
Experts trying to look at this from a technical approach identified that AI understood the prompts given to it and stitched together words that were instilled in it during its creation. There is no creative process that AI undergoes as humans do.[17]The AI development process includes the complete process of automatically constructing programs based on earlier intellectual efforts by humans.[18] This led to way too many legal IPR issues and a lot of loopholes were identified. People were confused about how they were going to deal with the copyright rights of an AI’s work. There are so many instances where Artificial Intelligence has proved its worth much more in its short lifespan than humans ever could. For example, in a recent novel competition hosted by the Hoshi Shinichi Literary Award, out of the 1,450 entries, 11 entries were by AI.[19] Even though people believe that Artificial Intelligence can take over the entire world soon, they fail to understand that AI still faces way too many complications when it comes to filing for patents and copyrights.
The Struggles
Every country introduced “The Patent Act” in their constitutions to make the process of patenting and copyrighting easier than it was. The Patent Act explicitly states that for a patent to be granted, the inventor has to be a person. The definition of “person” in this context is “a human being”. This was found to be the core reason for many of the filed patent and copyright requests to be denied. It has also been established that the title "inventor" should not be assigned to individuals who just performed regular activities in fulfilment of the diligence and/or reduction to practice of the invention while under the supervision of others. As a result, the human brain process is sacred in detecting imaginative activity and attributing such work to individuals.[20]
1. Commissioner of Patents V. Thaler[21]: One of the most recent cases regarding the patent rights of an AI named DABUS created by Stephen Thaler was filed on 17 September 2019 in Australia. After a long contemplation session, the verdict sent out stated that DABUS could not become the rightful patent owner of its creation.[22]This was further explained that it was clearly stated that an “inventor” is “anybody who is involved in the decision-making of the processes of inventing a product”. As AI wasn’t part of the decision-making, it couldn’t be considered as an inventor.[23]
2. European Patent Office decision of 27 January 2020 on EP 18 275 163 and European Patent Office decision of 27 January 2020 on EP 18 275 174[24]: The European Union recently denied 2 patent files applied by Artificial Intelligence inventors. This brought back the highlighted point that an inventor must be a human being instead of a machine.[25]
Patent applications like “10 2019 129 136.4” and “10 2019 129 136.4” in Germany conclude the verdict with the same points and reject the filed Patents.[26]
The Support
When an AI system develops work without human participation, establishing who owns the copyright becomes more difficult. In circumstances when AI causes copyright infringement, problems occur owing to AI's lack of legal personhood. But through all of this, countries like India, Ireland, South Africa, and New Zealand have been granting IP laws to the programmers of AI. [27] The support that Artificial Intelligence receives when it comes to Intellectual Property Rights is very limited compared to the rebuttal.
1. German Federal Patent Court Decision (November 11, 2021),[28] After getting rejected by the German Patent Office, Dr. Stephen Thaler took the case to the Federal Patent Court. The court decided that artificial intelligence-generated innovations are patentable on November 11th2021. This was however accompanied by the need for a normal human to be designated as the inventor.[29]
2. South African Patent Journal on 28 July, 2021;[30] South Africa was the only country out of 4 other countries, namely the United States of America, United Kingdom, Germany, and South Africa, which granted patent rights to DABUS. South Africa received way too much backlash for the taken decision, but they didn’t feel the need to retract it. [31]
Conclusion and Suggestions
A comprehensive study of the struggles faced by Artificial Intelligence in gaining the deserved Intellectual Property Rights has been done in this essay. AI seemed to face more disapproval and skepticism than any kind of assistance. This is clearly seen in the case of DABUS fighting for its rights. Out of the many countries where DABUS had applied for Intellectual Property Rights, most of them denied the AI creator the inventor rights[32]. This is deemed to be a major setback for the world of AI in relation to IPR. Programmers of AI spend their days working on the codes and developing their developments to achieve something that wouldn’t have been possible any other day. However, due to the lack of proper IPR in our legal system at present, this doesn’t appear plausible. The current IPRs are insufficient for the advancements we can observe in AI. But again, when an AI is in the process of repurposing copyrighted content in novel and creative ways, it has the potential to create transformative works. Determining the boundaries of fair use and the transformative nature of AI-generated works may need legal interpretation.[33]
Based on the above analysis the following suggestions can be made:
1. Beijing Intellectual Property Court (2017) Jing 73 Min Zhong No. 797 Civil Judgment. April 2, 2020:[34] In this particular instance, a camera that was attached to a balloon captured videos and pictures of many places. When queried who had the legitimate ownership, the court ruled that the person responsible for placing up the camera with the proper specifications would be given precedence. Using this as an example, the rightful ownership for any AI-generated creative work could be given to the person who programmed the AI or the one who entered the prompts into the AI.
2. Recently, there has been a rise in lawsuits against AI content creators, for example, Midjourney, in the United States of America. It has come to the attention of many visual artists that AI has been plagiarizing their work without offering any form of credit. Artists started filing these lawsuits in the San Francisco Federal Court.[35]This seems like a problem that can never be avoided and offering IP rights to AI machinery seems like a misinterpretation of our legal system. Thus, a rightful act can be passed protecting the works of both the human-content creators and the AI-content creators.
3. When Sophia, The Robot was able to get legal rights and representation that only humans are allowed according to law, why is AI still perceived with a backward glance? This proves that Artificial Intelligence deserves the right to get legal representation and hence, Intellectual Property Rights.
4. Corporate Companies are deemed to be separate entities from their owners and they are offered legal representation in the eyes of law. Why wouldn’t the same principle be applied to an AI bot which is considered to be a separate entity from its developers? Therefore, nations should start developing ideas for providing IPRs to AI.
[1]Jen Mallia, ‘Artificial Intelligence’ (Techopedia, 26 June 2023) available at: <https://www.techopedia .com/d efinition/190/artificial-intelligence-a> accessed on 10 August 2023.
[2] Tj Leonard, The role of AI in creative work (Forbes, 7 November 2019) available at: <The Role Of AI In Creative Work (forbes.com)> accessed on 10 August 2023.
[3] Law StF, ‘Intellectual Property Rights: Definition and Examples’ (St Francis School of Law, 15 April 2021) available at: <Intellectual Property Rights: Definition and Examples - St Francis School of Law (stfrancislaw.com)> accessed on 10 August 2023.
[4][1]‘IPR Law-History’ (Legal Service India - Law, Lawyers and Legal Resources) available at: <https:// www.legalserviceindia.com/legal/article-3581-ipr-law-history.html#:~:text=Origin%20In%20India%3A,as%20 Act%20XV%20of%201859> accessed on 10 April 2023.
[5] Burns E, Laskowski N and Tucci L, ‘What Is Artificial Intelligence and How Does Ai Work? TechTarget’ (Enterprise AI, 10 July 2023) available at: <https://www.techtarget.com/searchenterpriseai/definition/AI-Artificial-Intelligence> accessed 5 August 2023
[6] Gungor A, ‘The Evolution of AI: Transforming the World One Algorithm at a Time’ (Bernard Marr, 12 April 2023) available at: <https://bernardmarr.com/the-evolution-of-ai-transforming-the-world-one-algorithm-at-a-time/>accessed 5 August 2023.
[7] Copy right is an exclusive privilege provided to the creator for a certain period of time over their creative
work, whether it be literary or artistic.
[8] palaksinha2000, ‘History and Evolution of IPR’ (Legal Desire Media and Insights, 8 August 2020) available at: <https://legaldesire.com/history-and-evolution-of-ipr/> accessed 5 August 2023
[9] Admin, ‘WIPO - World Intellectual Property Organisation. UPSC Notes for IAS Exam’ (BYJUS, 3 December 2022) available at: https://byjus.com/free-ias-prep/w ipo/#:~:text=The%20World%20Intellectual%20Property%20Organisation%20for%20WIPO%20is%2 0a%20global,agency%20of%20the%20United%20Nations. Accessed on 10 August 2023.
[10] ‘Intellectual Property: Protection and Enforcement’(World Trade Organization) available at: <WTO | Understanding the WTO - Intellectual property: protection and enforcement> accessed on 09 August 2023.
[11]‘Ip and Frontier Technologies’ (WIPO) available at: <https://www.wipo.int/about-ip/en/frontier_technolo gies/ai_and_ip.html> accessed 6 August 2023.
[12]palaksinha2000, ‘History and Evolution of IPR’ (Legal Desire Media and Insights, 8 August 2020) available at: <https://legaldesire.com/history-and-evolution-of-ipr/> accessed on 10 August 2023.
[13] (H.R.5110 - Uruguay Round Agreements Act - congress.gov) available at: <https://www.congress.gov/ bill/103rd-congress/house-bill/5110> accessed 12 August 2023
[14] ‘Naruto v. Slater, No. 16-15469 (9th Cir. 2018)’ (Justia Law) available at: <.https://law.justia.com/cases/fede ral/appellate-courts/ca9/16-15469/16-15469-2018-04-23.html> accessed 6 August 2023.
[15]Research handbook on the law of artificial intelligence (Edgar Elgar Publishing Company, 2018) available at: <-Research Handbook on the Law of Artificial Intelligence-Edward Elgar Pub (2018).pdf> accessed on 11 August 2023.
[16]‘ IP and Frontier Technologies’ (WIPO) available at: <https://www.wipo.int/about-ip/en/frontier_technol ogies/ai_and_ip.html> accessed 6 August 2023.
[17] Chenlin Wei, ‘Copyright protection and data reliability of AI written literary creations in smart city’(Hindawi, 9 August 2022) available at: <Copyright Protection and Data Reliability of AI-Written Literary Creations in Smart City (hindawi.com)> accessed on10 August 2023.
[18] Chenlin Wei, ‘Copyright protection and data reliability of AI written literary creations in smart city’(Hindawi, 9 August 2022) <Copyright Protection and Data Reliability of AI-Written Literary Creations in Smart City (hindawi.com)>accessed on 9 August 2023.
[19] June Javelosa, ‘An AI written novel has passed literary prize screening’(Futurism, 25 March 2016) available at: <An AI Written Novel Has Passed Literary Prize Screening (futurism.com)> accessed on 10 August 2023.
[20] Research handbook on the law of artificial intelligence (Edgar Elgar Publishing Company, 2018) available at: <Research Handbook on the Law of Artificial Intelligence-Edward Elgar Pub (2018).pdf> accessed on 9 August 2023.
[21] ‘Artificial Intelligence and Intellectual Property Strategy Clearing House’(WIPO) available at: <Artificial Intelligence and Intellectual Property Strategy Clearing House (wipo.int)> accessed on 10 August 2023.
[22]Tim O’Callaghan and Travis Sheurd, Commissioner of Patents v. Thaler [2022] FCAFC 62- AI as an inventor?(Piper Alderman, 26 April 2022) available at: <Commissioner of Patents v Thaler [2022] FCAFC 62 - AI as an Inventor? - Piper Alderman> accessed on 9 August 2023.
[23] Ibid.
[24] ‘Artificial Intelligence and Intellectual Property Strategy Clearing House’(WIPO) available at: <Artificial Intelligence and Intellectual Property Strategy Clearing House (wipo.int)> accessed on 9 August 2023.
[25] ‘EPO publishes grounds for its decision to refuse two patent applications naming a machine as an inventor’(EPO, 28 January 2020) available at: <EPO - EPO publishes grounds for its decision to refuse two patent applications naming a machine as inventor> accessed on 10 August 2023.
[26] ‘Artificial Intelligence and Intellectual Property Strategy Clearing House’(WIPO) available at: <Artificial Intelligence and Intellectual Property Strategy Clearing House (wipo.int)> accessed on 10 August 2023.
[27]Neha raj and MehdaBant, ‘India: Legal Implications of AI-created works in India’(Mondaq) available at: <Legal Implications Of AI-Created Works In India - Copyright - India (mondaq.com)> accessed on 9 August 2023.
[28] ‘Artificial Intelligence and Intellectual Property Strategy Clearing House’(WIPO) available at: <Artificial Intelligence and Intellectual Property Strategy Clearing House (wipo.int)> accessed on 9 August 2023.
[29] Kingsley Egbuonu, ‘Latest news on the DABUS Patent Case’ (IP starts from Managing IP, 11 July 2023) available at: <The latest news on the DABUS patent case | IP STARS> accessed on 10 August 2023.
[30] ‘Artificial Intelligence and Intellectual Property Strategy Clearing House’(WIPO) available at: <Artificial Intelligence and Intellectual Property Strategy Clearing House (wipo.int)> accessed on 10 August 2023.
[31] Meshandren Naidoo, ‘In a world first, South Africa grants patent to an artificial intelligence system’ (The Converstaion, 5 August 2021) available at: <In a world first, South Africa grants patent to an artificial intelligence system (theconversation.com)> accessed on 9 August 2023.
[32]Kingsley Egbuonu, ‘Latest news on the DABUS Patent Case’(IP starts from Managing IP, 11 July 2023) available at: <The latest news on the DABUS patent case | IP STARS> accessed on 9 August 2023.
[33] K.V.Kurmanath, ‘How generative AI can challenge IPR, copyright and privacy’ (The Hindu- Business Line,7 May 2023) available at: <How generative AI can challenge IPR, copyright and privacy - The Hindu BusinessLine> accessed on 9 August 2023.
[34] ‘Artificial Intelligence and Intellectual Property Strategy Clearing House’(WIPO) available at: <Artificial Intelligence and Intellectual Property Strategy Clearing House (wipo.int)> accessed on 9 August 2023.
[35] Blake Britain, ‘Lawsuits accuse AI- content creators of misusing copyrighted work’ (Reuters, 18 January 2023) available at: <Lawsuits accuse AI content creators of misusing copyrighted work | Reuters> accessed on 9 August 2023.