IMPACT OF ARTIFICIAL INTELLIGENCE ON INTELLECTUAL PROPERTY LAW: A STUDY BY - PRANEETHA P
IMPACT OF
ARTIFICIAL INTELLIGENCE ON INTELLECTUAL PROPERTY LAW: A STUDY
AUTHORED BY
- PRANEETHA P,
Student of CHRIST (Deemed to be
University)
ABSTRACT
The proliferation of Artificial
Intelligence (AI) in creative endeavours has raised complex questions about the
ownership and liability of AI-generated outputs, creating a significant legal
void. The primary issue revolves around whether the ownership of AI-created
works in India should be attributed to the AI developer or the user who
activates the AI system. This critical conundrum, exacerbated by the absence of
explicit legal provisions, has led to perplexity and the potential for legal
disputes, especially when AI-generated content infringes upon Intellectual
Property Rights (IPR). This research addresses the emerging legal gaps within
the Indian context regarding the ownership and liability of AI-generated works.
The objective is to clarify India's existing Intellectual Property Rights
framework, encouraging innovation while protecting the rights of creators and
users of AI-generated content. The research adopts a doctrinal approach,
primarily analysing the Copyright Act of 1957 and the Patents Act of 1970 as
primary sources, the cornerstones of intellectual property rights in India. The
study also incorporates secondary sources, including legal commentaries,
judicial precedents, scholarly articles, and academic publications interpreting
and discussing the Copyright and Patents Acts, along with articles exploring
the intersection of AI and IPR. The study highlights the urgent need for legal
clarity within the existing framework. It underscores the necessity of
balancing innovation and protecting creators' rights while establishing a
cohesive legal regime for AI-generated content within India's IPR framework.
Addressing the intricacies of ownership and liability in AI-generated works in
India is paramount. The current void in legal provisions poses substantial
challenges, potentially impeding AI-driven innovations. This study emphasises
the urgency of creating a harmonious and clear legal framework that fosters
innovation while ensuring the rights of creators and users in the realm of
AI-generated content.
Keywords: Artificial Intelligence, Intellectual
Property Rights, Copyright Act of 1957, Patents Act of 1970, AI-generated
content.
INTRODUCTION
The surge of Artificial Intelligence
in creative domains has raised intricate questions about ownership and liability
for AI-generated outputs. This research addresses the legal gaps surrounding
the attribution of ownership and responsibility for AI-created works in India.
The heart of the issue lies in determining whether ownership should belong to
the AI developer or the user who activates the AI system. Some arguments
promote legally recognising AI as the owner as a legal person. However, the
existing legal framework in India lacks clarity on this matter, leading to
confusion and potential disputes. Furthermore, the problem of liability becomes
pertinent when AI-generated outputs infringe on Intellectual Property Rights
like copyrights and patents. This issue is amplified due to the absence of
specific regulations governing AI-generated content. The question of criminal
liability further complicates matters: should the developer, user, or AI itself
be held accountable for copyright or patent violations? Addressing ownership
and liability complexities in AI-generated works within India's IPR framework
is of utmost need due to current developments in AI. The absence of explicit
legal provisions poses challenges for creators, users, and investors,
potentially impeding AI-driven innovations. This calls for a balance between
promoting innovation, safeguarding creators' rights, and ensuring legal clarity
in the realm of AI-generated content.
Research Objectives
1. To assess the current Indian
intellectual property laws and their readiness to accommodate AI-generated
works.
2. To investigate the legal liabilities
arising from AI-generated works in the context of Indian IP laws emphasising
copyright and patent infringements.
3. To understand legal and policy
adaptations that reconcile the ownership problem within the Indian scenario.
Research Questions
1. What is the current legal landscape
in India regarding the ownership of AI-generated works?
2. How do determinants such as the level
of human involvement, AI system autonomy, and creative or inventive
contributions influence the assignment of ownership in AI-generated works under
Indian intellectual property laws?
3. What are the emerging trends in
ownership disputes and legal interpretations?
4. In cases where AI-generated works
lead to violations of intellectual property laws in India, what challenges
exist in attributing criminal liability?
RESEARCH METHODOLOGY
This research follows a doctrinal
approach, using the Copyright Act of 1957 and the Patents Act of 1970 as
primary sources. These laws provide the foundation for intellectual property
rights in India, making them essential for studying AI-generated work
ownership. In addition to primary sources, various secondary materials are
consulted. These include legal commentaries, judgements, scholarly articles,
and academic publications interpreting and discussing the Copyright and Patents
Acts. Also, articles about AI, IPR, and their intersection are reviewed for
insights. This approach aims to give a complete picture of the legal framework
for AI-generated works and intellectual property rights in India and clarify
legal uncertainties to contribute to the contemporary scenario wherein AI is
developing steadfastly.
ARTIFICIAL INTELLIGENCE
Artificial intelligence (AI) is the
ability of a computer system to make decisions independently, similar to how an
intelligent person would respond to similar input. It was coined by computer
scientist John McCarthy in 1956[1].
Sir Alan Turing proposed the Turing test to determine if AI machines showed
intelligence and if their responses were indistinguishable from real human
responses. The World Intellectual Property Organization (WIPO) identified AI
and proposed three categories: expert systems, perception systems, and
natural-language systems[2].
Expert systems solve problems in specialised fields, while perception systems
allow computers to perceive the world with sight and hearing. Natural language
systems understand word meanings and require a dictionary database. Further, AI
is increasingly used in various sectors, including medical attention, retail,
manufacturing, and banking[3].
AI can provide personalised readings, suggestions, and improved inventory and
site layout. It can also assess industrial data using recurrent networks,
estimating projected load and demand. In banking, AI can improve the speed,
precision, and efficiency of human labour by determining transaction fraud,
implementing quick and accurate credit scoring, and automating data
administration tasks. The use of AI systems led to legal debates over copyrights
and patents, but the debate remains relevant to the field of intellectual
property. The rise of Artificial General Intelligence (AGI) is a transformative
moment, combining programming sophistication and computing power through
distributed capacities enabled by the Internet. AGI is a more advanced category
where machines can act without explicit instructions and learn from prior
actions to create or improve more autonomous and sophisticated pathways to task
completion and innovation[4].
AGI can perform cognitive tasks equivalent to or beyond those performed by a
human, and its creation is a subject of great debate. AGI can function as its
own Tasking Master, with its capacity for true autonomy being its defining
characteristic. The ethics and implications of its creation and the timeline
for its arrival are the subject of much debate, but extraordinary human and
financial capital are dedicated to its creation.
AI AND INTELLECTUAL PROPERTY LAW
The global copyright sector
acknowledges that AI tools are software-based and subject to the same IP and
software issues as creating applications. However, machines have become highly
skilled and can work independently, making AI programs and their innovations
more valuable. Increased digitalization has also impacted the recognition and
assessment of documents, which has traditionally been a valuable training
ground for AI solutions. Automation has reduced the need for human
participation in law firms, patent offices, and legal tribunals, which have
traditionally been time-consuming, challenging, and destructive. With the rise
of automation, businesses and organizations can address significant challenges
such as a lack of employees and a tight budget, improve job accuracy and
reliability, minimize risks, and increase market competition. Intellectual Property
Rights (IPR) are an amorphous bundle of rights that allow creators or owners of
patents, trademarks, or copyrighted works to benefit from their work or investment
in a creation. The number of IPRs is not finite, but the fundamental features
of protection requirements posed for individual IPRs are essentially the same
in all countries. AI technologies are transforming the way innovations occur
and altering the relationship between humans and machines in discovering new
inventions. The important features of AI systems that create new challenges to
intellectual property law include creativity, unpredictable outcomes,
independent and autonomous operation, and the ability to learn, collect,
access, and communicate with outside data.[5]
INTERSECTION OF AI AND IPR
Software-based AI tools are subject
to IP and software issues when creating applications. Legal issues arise when
AI programs and innovations are given statutory rights. The world's first
digital court heard its maiden case in 2017, using AI to prepare decisions and
digitally assemble trial recordings[6].
Litigation predicting has reached high accuracy, and AI may soon be in charge
of making decisions autonomously. The evolution of artificial intelligence and
new technologies has increased the need for intellectual property protection.
The World Intellectual Property Organization (WIPO) has adopted various
treaties to address these challenges. The AI market is predicted to grow
rapidly, with AI systems replicating human cognition and undergoing training to
develop decision-making algorithms. However, AI may face limitations in some IP
issues due to the majority of IPs being human-created[7].
As AI and robots become a reality, it is crucial to address intellectual
property issues in this rapidly evolving field. AI is transforming industries
and raising significant legal issues. It may affect agency law, contract law,
contract or tort law, social, ethical, and constitutional frameworks,
commercial laws, and procedural law[8].
It may also reinforce human prejudices and adopt discriminatory practices based
on race, sex, religion, nation, disability, and age. Legislators and courts
must consider these legal dimensions as AI proliferates into society.
Intellectual Property Law, including copyright and patent laws, will witness a
significant revolution, as AI is a software entity resulting in intelligent and
creative machines. This unique attribute of AI touches the foundational
underpinnings of IP Law.
GLOBAL LEGAL POSITION
AI patents are granted in the United
States, the UK, China, Japan, and Japan. In the US, new and improved AI
technology is granted first, followed by widely accepted AI methodologies. The
UK can apply for a patent through the European Patent Office or the UK
Intellectual Property Office[9].
In the UK, objects like computer networks and mathematical calculations are not
considered inventions, but they contribute to the technical aspect of an
innovation. China aims to lead in AI worldwide by 2030, with a faster increase
in patents mentioning AI or supervised learning. Japan offers a patent-friendly
environment for AI-related inventions, with approval rates of approximately
70%, similar to other technical fields. The US and UK have attempted to
incorporate AI-related patents into existing laws, but the need for proper laws
is crucial due to the rapid developments in AI. In 2017, a patent application
for an AI system, DABUS, was rejected in the UK, USA, and Europe due to the
invention not being done by a legal person[10].
China, Japan, and Singapore are also liberal in granting patents for AI
inventions, with similar allowance rates for other technology developments.
European patent law covers various
legislation, including national patent laws, the Strasbourg Convention of 1963,
the European Patent Convention of 1973, and several European Union directives
and regulations. There are two layers of patent systems in Europe: national
patents granted by national patent offices and a centrally granted European
patent granted by the European Patent Office (EPO). In the last decade, Al and
Machine learning-related patent registrations increased by 250% worldwide. The
EPO had not published guidance on its practice for examining AI-related
inventions until last year. The EPO recognizes that Al and machine learning are
based on computational models and algorithms of an abstract mathematical nature
and should be treated the same way as other mathematical models. The EPO
provides examples of how Al inventions will be assessed, such as the use of a
neural network in a heart-monitoring apparatus for identifying irregular
heartbeats or the classification of digital images, videos, audio or speech
signals based on low-level features. The EPO has paved the way for more legal
certainty that will lead to even more Al and machine learning patents and much
more investment in R&D. However, given the rapid technological developments
and importance of this area, industry players will anticipate more relevant
case law in this field, including in particular case law from the EPO's
Technical Boards of Appeal.
The Singaporean IP legal framework is
one of the most comprehensive in Asia, protecting patents, copyrights,
trademarks, and other types of intellectual property. The Patents Act, which
came into force in 1995, provides Singapore with its patent system. To obtain a
patent, an applicant must submit a patent application to the Intellectual
Property Office of Singapore (IPOS), which grants rights that extend throughout
Singapore and prevent others from exploiting the invention without consent for
20 years. In April 2010, the IPOS launched the Accelerated Initiative for
Artificial Intelligence (AI) initiative, effective from 26 April 2019, for two
years and will be limited to 50 applications per year. The eligibility criteria
for AI inventions include being novel, involving an inventive step, and capable
of industrial application. Copyright in Singapore is defined as a 'literary,
dramatic, musical, or artistic work', with main commercial rights including the
right to reproduce, adapt, translate, modify, publicly perform, display,
broadcast, create derivative works, commercially benefit from the work, and
transfer rights permanently or temporarily. In July 2011, Singapore's Court of
Appeal laid out fundamental principles of its copyright law in Asia Pacific
Publishing Pte Ltd v Pioneers & Leaders (Publishers), which held that work
cannot be copyrighted unless it has an author and that a computer program
cannot be credited as an author of a copyrighted work.
The US Copyright Office ruled that a
work must be created by a human, putting the copyright of compositions created
by Al in doubt. However, the UK Copyright Act of 1956 states that 'one who
allowed the work to be generated'. This includes the author of a
computer-generated work. As AI becomes more advanced and autonomous, it becomes
more challenging to predict who will be responsible for the work's creation. The
European Commission's High-Level Expert Group on Artificial Intelligence (HLEG)
has released a report expanding and clarifying the definition of AI. AI refers
to systems that display intelligent behaviour by analysing their environment
and taking action to achieve specific goals. AI-based systems can be
software-based or embedded in hardware devices. Singapore's government has
created a model framework for public consultation, 'A Proposed Model Artificial
Intelligence Governance Framework', which defines AI as a set of technologies
that simulate human traits. There is no standard definition of AI as accepted
in law, but a usable definition is crucial for regulation and governance.
THE COPYRIGHT ACT OF 1957
The Copyright Office's Practice and
Procedure Manual of 2018 states that only the information of a natural person
should be provided as the author of a work during copyright application. This
rationale is based on court findings that the first owner of copyright is
always the author. To protect a compilation, authorship elements are required
in the selection, coordination, and arrangement of materials. Compilations
created by dedicating money, skill, labour, and time are considered scholarly
works, and copyrightability work is tested based on the author's skills and
judgment applied in the original work. Section 2(d) of the Indian Copyright
Act, 1957[11]
describes the 'author' as the person who causes any computer-generated
literary, dramatic, musical, or artistic work to be produced. For a work to be
eligible for copyright protection under the Indian copyright law, the 'modicum
of innovation' threshold established in Eastern Book Company & Ors. v.
D. B. Modak and Anr.[12]
must be met for protection. In this instance, the Court decided that a minimum
level of originality was necessary, that it must be significant rather than
just in a minor way. Therefore, it is impossible to draw a firm conclusion
wherein one could argue that an Al lacks the necessary modicum of creativity.
The second prerequisite is that according to the definition of an 'author' in
the Copyright Act. When it comes to the ownership of works protected by
copyright law, it would be troublesome to associate it with AI because it does
not possess a legal personality, making its authorship a controversial issue. AI-created
work, based on algorithms, can be based on publicly available or copyrighted
material. However, AI cannot produce original material as it is a modification
or updated version of existing data. Acknowledging AI as an independent entity
and separate work protection can lead to copyright infringement. The Indian
Copyright Act requires a work to be original for it to be considered
copyrighted, but the term 'original work' is not defined. To assert copyright
ownership or authorship, the work must be original and suitable for testing
originality. Al's work can qualify as a compilation due to its reliance on
existing knowledge and visibility, but some argue that it lacks expertise,
judgment, and skill[13].
Liability arises when AI is acknowledged as the owner and author of a creation,
and Section 51[14] of the
Copyright Act addresses this.
THE PATENT ACT OF 1970
According to a United Nations Report,
India is becoming a new target for patent filings in AI. The Indian
Constitution is the basic legal framework that allocates rights and obligations
to persons or citizens, but courts have yet to adjudicate the legal status of
AI machines. The Indian Patent Office follows Computer Related Inventions
(CRIs) guidelines that prohibit computer programs or algorithms from being
patented, which apply to AI-based technologies. To obtain protection in AI-based
software in India, it is advisable to describe the hardware components along
with the AI algorithms and claim a working method of the device that uses the
AI. The legal implications of AI in India are unknown, and the patent regime is
silent on the matter. According to Section 6 of the Indian Patents Act, 1970[15],
only the actual and first inventor of the invention, or those authorised by
them, may file a patent application. However, the concept of 'true and first
inventor' is limited by Section 2(y)[16]
of the Act to omit those who are the first to import an invention into India or
to whom an invention is first disclosed outside India[17].
Recent trends related to AI development in India include the creation of an
18-member Task Force on AI for India's Economic Transformation in 2017 and
releasing NITI Aayog's discussion paper 'India's National Strategy for
Artificial Intelligence' in June 2018[18].
However, there has yet to be any discussion on the legal implications of AI.
Recently, a Tender was posted on the official website of the Indian Patent
Office (IPO), giving notice of Inviting Expression of Interest (EOI) for making
use of AI, Blockchain, Internet of Things (IoT), and other latest technologies
in the Patent Processing system of IPO.
ISSUES OF AI AND IPR
The surge in the processing power of
devices and the lightning-fast development of Al technologies have had a
profound impact on the process of invention. Artificial intelligence is gaining
traction in a wide range of inventive industries by the day as it gets better
at finding patterns in data, organizing it, and making future predictions. The
state of Al technology development has advanced to the point where minimal
human involvement is required to produce outcomes. These outputs would qualify
for patent protection because of their creative nature if a human creator
created them. This raises an essential question of whether an Al system may be
deemed the inventor within the current patent law framework. The answer to this
query ought to be negative. An invention must meet certain criteria to qualify
for patent protection, including being novel or involving an inventive step.
Whether or not an innovation is so would only be evident to someone competent
in the specific field to which it relates. The current standards, like those
applied by the European Patent Office and British courts, are ingrained in the
assessment of human capability. For example, they encourage people to pursue
particular paths, which are limited by their ability to analyze a few options,
be consistent, and anticipate success and other such factors. If artificial
intelligence is used in the creative process, these principles and concepts may
lose significance. Further, AI-based technologies can produce literary and
artistic works on their own. This capacity raises important policy issues for
the copyright system, which are closely related to the creative and artistic
spirit and to appreciating, rewarding, and fostering the complexity of human
creativity. The intimate relationship between the copyright system and the
creative spirit tends to doubt this ability. The final policy positions decided
upon regarding the copyright allocation to works that Al has made will address
the fundamental societal objective of the copyright system's operation. Should
AI-generated works be excluded from copyright protection, the copyright system
may be interpreted as encouraging and promoting the value of human ingenuity
over that of machines. This would happen if AI-generated works were free from
copyright protection requirements. Should works created by artificial
intelligence be granted copyright protection, the copyright system would be
viewed as a tool that supports consumer accessibility to the most significant
possible number of artistic works and assigns equal value to creative thinking
from humans and machines. AI could harm the value assigned to the creative
minds of humans. The debate over whether Al could infringe on rights would
benefit from examining how the violation of various rights is assessed concerning
each unique subject matter, as well as whether ownership rights are involved in
the context of specific Al implementations. This would provide further insight
into the process used to identify rights violations. Another critical question
to consider is whether it will ever be possible for Al systems to be taught
copyright law and be proficient in not invading, particularly given the complex
copyright precepts that are in place, such as the idea-expression dichotomy,
the possibility of non-literal duplication that constitutes a violation of
certain works, tests that operate based on qualitative rather than quantitative
criteria, distinct time periods of safeguard for different subjects, and
likewise[19].
Another important question is whether or not new limitations and exceptions
should be made, both from the perspective of innovative Al usages and from the
perspective of already established sector-specific discussions. The
patentability of AI creations is often a combination of multiple inventions,
which can complicate applications and hinder innovation. In India,
computational programs are not patentable, and allowing AI to invent algorithms
could lead to increased wage gaps and inequality. The ownership of AI
inventions is also a concern, as AI is not a legal person and is labelled as an
electronic person. Ownership is attributed to the company owning the AI, but
ownership can be challenging to determine when multiple companies come together
for an invention. Patent laws give exclusive rights to the creator, and
liability in case of an AI infringement would also be challenging to determine.
Some companies use the pretext of AI to find loopholes in patent laws, but
there is no settled law. The neutral position of AI systems is uncertain, as
humans create them, and their decisions are influenced by human nature. Lack of
transparency creates a black box, with inputs, processes, and operations not
divisible by interested parties.[20] Legal
proceedings against artificial intelligence machines depend on whether they
have a legal personality. A legal person has legally recognised rights and
responsibilities, and machines do not inherently have one. Currently, machines
cannot be sued as they are referred to as a product or a service. If a machine
is a product, the manufacturer can be sued for breach of warranty or a product
liability claim. Existing intellectual property laws do not recognise the
machine's right to invent new technology. The UK and the US have declined to
impose liability on artificial intelligence machines, as liability arises when
the accused intends to commit a crime, which cannot be the case in machines.[21]
RECOMMENDATIONS AND CONCLUSION
As AI technologies become more
sophisticated, legislators need to develop guidelines for legal safeguarding. Stephen
Hawking argues that the autonomy of AI can diminish human thinking and
invention[22]. A more
favourable solution is to grant a more collaborative form of patent protection
for AI inventions, as a human element is essential in managing rights and obligations
associated with patents. With the increasing use of AI-enabled networks, patent
protection must be awarded to an anthropomorphic agent, who may be recognized
in case of invention malfunctions or potential law violations. Recognizing AIs
under IP is problematic, with only a few countries recognizing AI work. An
Artificial Intelligence Data Protection Act could be drafted to track AI
actions and provide remedies for criminal and civil offences committed by AIs.
Legislation should address the inclusion of AI-enabled systems and the need for
proper guidelines to incentivize human scientists to create more AI systems. The
current copyright regime faces challenges with emerging AI technologies,
potentially leading to adverse outcomes due to rapid development and
implementation. This could leave creative industries vulnerable to AI-generated
works and jeopardize their protection[23].
Future legislation must balance developers' interests and protect authors who
prefer not to use machine assistance. The EU's efforts in AI will likely lead
the way in this regard. The most reasonable arrangement is to give copyright to
the individual who made AI-produced work possible. Artificial Intelligence will
enhance human effectiveness but also threaten human autonomy and agency. As
computers match or exceed human intelligence, people increasingly rely on AI in
complex digital systems. AI's intersection with the law is still nascent, with
jurisdictions like the EU, Singapore, and India addressing its potential legal
issues. India, despite having a proposal for a National Strategy for AI, still
needs to amend its IP legislation to deal with AI-related intersections. A
robust intellectual property framework is, thus, the need of the hour.
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