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RAMIFICATIONS OF A NEW- DAWN: ARTIFICIAL INTELLIGENCE IN INTELLECTUAL PROPERTY RIGHTS (By-Gangadarsana P G)
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RAMIFICATIONS OF A NEW-
DAWN: ARTIFICIAL INTELLIGENCE IN INTELLECTUAL PROPERTY RIGHTS
Authored By-Gangadarsana P G
Abstract
This paper is titled “Ramifications
of a New-Dawn: Artificial Intelligence in Intellectual Property Rights”. This
paper aspires to discuss the convergence of Artificial Intelligence and
Intellectual Property Rights, the Implications of AI on IPR Jurisprudence, its
Implications on the IPR laws with reference to Indian IPR laws such as Patents
Act, 1970 and Copyright Act, 1957. This paper analysis the contemporary
challenges and issues and ramifications with regard to Artificial Intelligence
in the field of IPRs. This paper concludes by stating the need for legal
reforms internationally and nationally and the notions to be crucially
considered with regard to AI systems in human lives.
KEYWORDS:
Artificial Intelligence, Human
Intelligence, AI-related systems, Intellectual Property Rights, Implications,
Convergence of AI And IPR, Patent law, Copyright law, Theories, WIPO, TRIPS,
Challenges.
Introduction:
“The
development of full artificial intelligence could spell the end of human race.
It would take off on its own, and re-design itself at an ever-increasing rate
and humans, who are limited by slow biological evolution, couldn’t compete, and
would be superseded”.
-Stephen Hawking
Artificial Intelligence is a game
changing technology that applies advanced analysis and logic-based techniques
to interpret events, support and automate decisions and take action. The growth
of AI has largely influenced various sectors and the consequential effects of
it on the current legal, social and economic structures is tremendous.
Moreover, its effect on the Intellectual Property Rights is of a greater
concern as the innovation and creative ability associated only to the ‘Human
Intelligence’ is now being usurped slowly by ‘Artificial Intelligence’. With
regard to the Intellectual Property Rights, the Artificial Intelligence is
mainly delving into Patents, Copyrights, Designs and Trade secrets.
Like two sides of a coin, AI’s
presence in the field of IP has both boons and banes. Careful scrutinization on
one hand depicts that AI can bring a paradigm shift which might enhance the
quality of human lives and on another hand depicts that AI might transcend
human intelligence where there is a possibility of the machines/computers
re-programming their own software and code thereby threatening the very
existence of human race. Thus, protection of IPR has become indispensable as
the progress of AI is profound in the late-twentieth-century.
Artificial Intelligence
Artificial Intelligence abbreviated
to AI refers to the simulation of human intelligence in machines that are
programmed to think like humans and mimic their actions. [1]It
can also be appertained to a machine that shows traits resembling a human mind
like learning, problem solving, inventing etc. AI is seen as an essential
integrant of the fourth Industrial Revolution. In the contemporary world, AI
has assumed significant importance in the fields of whatnot! From the sectors
of Health, Transportation, Agriculture, Aviation to Academics and
Entertainment, AI in this day and age is dominating most of the activities that
has in effect resulted in the minimization of human intervention.
The word ‘Artificial Intelligence’
was coined by John McCarthy in the year 1956. Ray Kurzweil described AI as “the
science of making computers do things that require intelligence when done by
humans”.[2] Russ
Pearlman stated “the central goals of AI: Reasoning, Knowledge, Learning,
Decision-making, Listening, Understanding and Speaking languages, ability to
move and manipulate objects”[3].
Gartner stated that the “Artificial
intelligence is technology that appears to emulate human performance typically
by learning, coming to its own conclusions, appearing to understand complex
content, engaging in natural dialogues with people, enhancing human cognitive
performance or replacing people on execution of routine tasks”[4].
AIs are related to machines(computer)
and through the advancement in machine learning techniques, the artificial
intellect performs on par with human intellect or even better than the human
intellect known as ‘super intelligence’.
AI is an admixture of Machine
Learning, Automation and Robotics, Machine vision, Natural Language processing
and Deep Learning. Through these advancements, the machine carries out
activities either independently or with minimal human interference, which may
or may not require human intervention[5].
Intellectual
Property Rights:
Intellectual Property abbreviated to
IP refers to creations of the mind, such as inventions, literary and artistic
works, designs and symbols, names and commerce.[6]
Intellectual Property is an amalgamation of various rights which was
essentially divided into Industrial property and Intellectual Property. It
includes Patents, Copyright, Trademark, Designs, Trade secrets, Geographical
Indications etc.
PATENT: Protects the patent holder’s
exclusive right to commercially benefit from his invention that satisfies the
statutory conditions of Novelty, Inventive step, and Industrial Application.
Moreover, ensures that no other person can make, use or promote an invention
without acquiring
requisite permission from the patent
holder. The patent is for a period of 20 years and after which it passes into
the public domain.
COPYRIGHT: Protects individual writers,
composers and artists from prospective infringement. It protects the copyright
owners moral and economic rights. Copyright can be found in literary, dramatic,
musical, cinematic works etc.
Moreover, the ultimate goal of the
Intellectual Protection is to stimulate invention in every field and sector of
life for ensuring advancement of invention, innovation and growth of overall
life standards. The principle aim of Intellectual Property Law is to protect
and safeguard the rights of the
inventors or creators of any product or creation and it is stated that the
“Intellectual Property shall include the rights relating to literary, artistic
and scientific works, inventions in all fields of human endeavour, scientific
discoveries, industrial designs, trademarks, service marks, and commercial
names and designations, protection against unfair competition, and all the
other rights resulting from intellectual activity in the industrial,
scientific, literary or scientific fields”[7].
The significance of Intellectual
Property can be traced back to the theories formulated by various philosophers
such as
(i) Natural Rights theory by John Locke states that the owner
has a natural right over the things/creations made through his own intellectual
labour and effort.
(ii) Reward theory states that an owner or
creator should be rewarded with exclusive rights (that acts as moral and
ethical incentives[8]) for the
contribution of a greater good to the society through his intellectual effort.
(iii) Utilitarian Theory by Jeremy Bentham states regarding
the concept of “the greatest good for the greatest number”. That is, the
activity of invention or creation that brings maximum satisfaction and
enjoyment to the society at large should be encouraged and promoted. Moreover,
the inclusiveness of utilitarian approach will aid socio-cultural and economic
growth.
(iv) Personhood Theory by Immanuel Kant and Georg Hegel
states that the intellectual creations carry inherent personality. Thus,
Intellectual property rights also protects the development of one’s
individuality as material objects.
(v) Will and Interest theory by H.L.A Hart is also known as
choice theory as it gives the right holders to assert or relinquish their
rights over their products/creations[9].
These theories are the foundation for
Intellectual Property Jurisprudence and the laws/treaties protecting
Intellectual Property rights were created by following the approaches laid down
in the theories, which was set in stone until the inception of Artificial
Intelligence marching in the arena of Intellectual Property Rights.
Convergence
Of Artificial Intelligence And Intellectual Property Rights:
AI has surpassed into almost all the
sectors and so into the domicile of Intellectual Property Rights. World
Intellectual Property Organization observed that the Intellectual Property (IP)
system is designed to incentivize human innovation and creation. Hitherto such
invention and creation were one of the attributes of human beings. But
currently the Artificial Intelligence (AI) is extensively driving significant
developments in business sectors and technological advancement. It is being
engaged across a vast range of industries with influence on almost every aspect
of the innovation and creation. The availability of enormous amount of training
data and progress in economical and affordable high computing power is
stimulating the growth of Artificial Intelligence. The convergence of
Artificial Intelligence and Intellectual Property Rights is inevitable and WIPO
has highlighted the significance of AI and essential safeguards to be provided
by the IP laws concerning AI inventions.
The WIPO recognized the existence of AI and postulated three categories
of AI[10].
(i)
Expert System:
Systems that demand in-depth knowledge in areas like medical diagnosis,
treatment suggestions, geological determinations, artistic and creative
productions etc.
(ii)
Perception System: Systems that enable a machine/computer to discern the sense of sight
and listening which is utilized by topologists, word-context experts etc.
(iii)
Natural language program (NLP) System: Systems that perceive the meaning of words, and
acknowledges extensive grammatical and textual contexts that imparts a semantic
analysis.
It is a common belief among the world
leaders such as US, UK and China that Artificial Intelligence will substitute
Human Intelligence and pose to be a major threat to the basic principle of
Intellectual Property Rights.
The growth of AI is far-reaching.
Google was one of the pioneers in filing AI related patents as early in 2015
which was followed by other organisations such as IBM, Microsoft, Siemens etc.
Most of the organisations intend to invest in AI technologies and the
investment-energy statistics prove that AI is marching its way as one of the
prominent achievements of the human-sphere[11].
The 2019 WIPO report indicates that
AI patent applications relating to inventions of machine learning, specifically
deep learning and neutral networks techniques are about 40 percent. About 50
percent of functional application patent filings relate to computer vision
which includes image recognition and a lot of Natural language processing as
well as speech processing patent applications are also filed[12].
Relevance Of IPR Jurisprudence In AI Era:
As stated supra, the theories
propounded by various jurists in relation to IPR was almost relevant until the
beginning of AI era. The arrival of AI in the field of IPR has its own
ramifications upon the IPR Jurisprudence.
(i)
Natural Rights Theory:
The Natural Proprietary Right rests
with an inventor or creator who invents or creates using his own labour and
resources. Thus, according to this theory, as the AI and the succeeding
inventions are the result of a person’s labour in coding or inventing AI, the
programmer of AI should get the IP rights. But the works of AI are far
different from the Programmer’s perception, and if all the IP Rights are vested
with the Programmer, that would be unjust. In the current scenario, the
programmer of AI may be vested part-IP rights for his labour in programming the
AI if at all, keeping the Locke’s theory in mind.
(ii)
Reward Theory:
Individuals invest their human mind
and labour to invent or create something, more so to reap the fruits of their
investment in the form of IP rights or profits(reward). In the present AI
generation, rewards may not motivate machines to invent or create as they are
programmed to do so even without the incentives. Thus, the reward theory stands
defunct and archaic in the new-fangled IP era.
(iii)
Utilitarian Theory:
The IP such as Patents and Copyrights
does not acknowledge computers/machines as inventors or owners/creators and so
any inventions or creations by AI, even if proves to benefit the society at
large are neither patented nor copyrighted. To acquire protection of Patents
and Copyrights, there must be an influence of inventor or creator over the said
invention or creation. For example, if an inventor of a computer programme
constructs an AI where the AI uses its own intelligence that is not envisioned by
the human inventor, to invent or create any patentable or a copyrightable
subject matter, then question of attribution of inventorship or creatorship is
of incertitude. But, as the work is created by AI, it has to be given the
protection of IP from the utilitarian point of view. According to the Reward
theory, incentives boost invention and when the inventions are attributed to AI
as afore-said then the human inventors might not invent or create which will
act as barrier and be against the principle of utilitarianism.
(iv)
Personhood Theory:
The creation or invention by AI has
no emotional or personality attributes with regard what it creates or invents.
Machines are programmed to invent whatsoever and the consequences of such
inventions cannot be accredited to AI. The thinking and intellectual capacity
of a human form a part of his characteristics and that is said to be his
Personality trait, but the incredible creation or invention done autonomously
by the AI without any demonstration of reasoning ability or predictability will
not hold good for the Personhood theory.
(v)
Will and Interest Theory:
The rights are assigned to the
inventor or creator and the exclusive right is the sovereign right to use the
product or creation to the exclusion of others and they enjoy the individual
freedom as per their will. But this theory is reluctant to AI as they do not
have their own will. The programmer of the AI has the interest, right and
liability in any creation or invention of AI and AI has no role accordingly in
the interest theory of right.
IP AND AI: INDIAN APPROACH
“Each nation today aims to become a
global leader in Artificial Intelligence. Hence, countries such as the US, UK,
China and Germany are increasing investments to leverage this technology.
…India’s approach towards AI strategy has to be balanced for both local needs
and the greater good. A strong regulatory system around this can ensure
long-term benefits and growth.”
-Justice, Dominique Hascher, Supreme
court of France
In India, the presence of AI is
radical. Lot of investments are poured into the AI related start-ups and
inventions. The WIPO report on India’s rank in AI technology trends suggest
that there is a considerable increase in scientific publications than patent
applications. The report suggests that in the years 2012 to 2015 the AI patent
filings rose to almost 33% and India ranks at No.5 with regard to AI patent
applications[13].
PATENTS:
In India, “The Patents Act, 1970”
governs the Patent legislation. Section 3 of the Act describes those inventions
that are non-patentable. With regard to the Patentability of software
advancements Section 3(k) of the Act and Guidelines for Examination of Computer
Related Inventions (CRIs)[14]
should be taken into aid for interpretation. Section 3(k) states that “mathematical
or business method or a computer programme perse or algorithms” are not
patentable inventions. Thus, an AI or software related inventions are not
patentable in India. But software inventions can be patented if the invention
improves on existing prior art in terms of technology and by delivering a
direct implementation or a sufficient technical impact of the fundamental
program, where the invention gives a technological remedy to a technical issue[15].
The definitions of “Patentee” under
Sections 2(p) and “Person interested” under 2(t) of the Act is deterrent in
incorporating AI within its scope.
Section 2(p) defines that the “Patentee
means a person for the time being entered on the register as the grantee of
proprietor of the patent.”
Section 2(t) defines that the “Person
interested includes a person engaged in, or in promoting research in the same
field as that to which the invention relates."
The definition under Section 2(y)
does not specifically state that the true and first owner should be a natural
person or human being and can be considered to possibly provide a scope for AI
systems.
Section 2(y) defines that the “True
and first inventor does not include either the first importer of an invention
into India, or a person to whom an invention is first communicated from outside
India.”
However, the intention of the
legislature can be rightly interpreted from the definitions under Sections 2(p)
and 2(t) which states that the person be a legal person and it clearly does not
intend AI (not a legal or natural person). Section 6(a) of the Act also
clarifies the same.
Section 10(4)(b) of the Act states
that the specification, whether provisional or complete has “to disclose the
best method of performing the invention which is known to the applicant which
he is entitled to claim protection.[16]”
In the case of AI being an applicant, the AI cannot disclose the best mode of
performing an invention as the AI might not have knowledge of its own
inventions as there are done autonomously and such applications can be revoked
under Section 64(1) of the Act.
Approach Of IPO And Indian Court Towards AI Patent In India:
In 1999, a patent application for a
method and a device for gaining access to web-based information sources and
services was denied by the PTO vide First Examination Report under Section
2(1)(j) of the Patent Act,1970. In 2005, the Second Examination Report by PTO
for the applicant’s response to FER stated that the application is objected for
the non-patentability of claims under Section 3(k) of the Patents Act. As no
response was filed by the applicant for SER, the application was deemed to have
been abandoned under Section 21(1) of the Act.
The abandonment was challenged before
the High Court of Delhi in the year 2006 in the case of “Ferid Allani V
UOI[17]”.
In 2008, the Controller of Patents was directed by the Court to re-examine the
patent application. A response to SER was filed by the applicant but the
Controller refused the application. An appeal was filed before IPAB and it also
dismissed the appeal stating that the application lacks technical effect. In
2013, an appeal was filed before the Delhi High Court and it dismissed the
appeal stating that the only computer programs per se are not patentable in
India and a computer program that has technical effect or technical
contribution is not a computer program per se.
But the High Court in 2019 directed the
IPO to re-examine stating that an invention could not be held non-patentable
for the reason that it is rare to see a product which is not based on a
computer program and that the effect of such programs in digital and electronic
products is crucial in determining the test of patentability. In 2020, PTO
heard and dismissed the application on the same ground.
In 2020, it was challenged before
IPAB and the same was granted patent.
This is the very first case in India,
opening doors for Patenting computer-based applications.
COPYRIGHT:
In India, Indian Copyright Act,1957
governs the Copyright legislation. Under the copyright law, authorship is given
to an individual who “causes it to be made”, as established under Section 2(d)
of the Indian Copyright Act,1957. Decisive human involvement is a mandatory
requirement to seek protection under the Copyright law. According to Section
2(d)(vi) of the Act, authorship is given, “in relation to any literary,
dramatic, musical or artistic work which is computer-generated, the person who
causes the work to be created”.[18]
The Indian copyright law recognises computer-generated works but does not
recognize computer generated AI done without human intervention.
A far as the weak AIs such as
computer programmes are concerned, they can be ascertained authorship (the
person who causes the work to be created) under Section 2(d)(vi) of the Indian
Copyright Act,1957 subject to human involvement in the resultant work. There
are also debates with regard to the phrase “the person who causes the work to
be created”. AI is neither recognized as a human or legal person and so it is
very evident that the Indian Copyright Act is not inclusive of AI systems.
Section 17 of the Indian Copyright
Act,1957 carries a narrow interpretation with regard to the term “Author” and
so AI being a machine/computer might not be considered as a first owner of the
copyright as under the sub-sections of Section 17. An AI being a machine cannot
be stated to be in the course of employment with a company or an individual,
and an AI is incapable of entering into a contract/agreement as it is incapable
of fulfilling the requisites of a contract of service as opposed to a natural
person who is capable of entering into an employment contract.
The pre-requisite of copyright law is
“Originality” i.e., the work must be composed by the author independently using
his originality of expression. The Supreme Court of India in the case of Eastern
Book Company v. D.B. Modak[19]
has adopted the “Doctrine of Modicum of Creativity” to determine if the work
created is Original. The Doctrine stipulates that there must be an element
of sufficient creativity and judgment
in the work to entitle Copyright protection. In respect of AIs, the doctrine as
well as the judgment does not hold good as the AI machines cannot establish
modicum of creativity. Thus, the pre-requisite of Originality cannot be
satisfied by the AIs and AIs cannot seek protection of Copyright rights in
India.
Contemporary
Challenges And Issues:
Though the laws governing AI and IP
protections are still in the nascent stage, the nuances and convolutions
relating to AI and IP is a topic of deliberation discussion and understanding.
Keeping in mind the recent far-reaching development of AI and the need for protection
of such AIs under the IPR regime, the challenges relating to it are:
(i)
The
IP laws such as Patent and Copyright ought to be amended incorporating the AI
technology inclusive of AI ethics, AI development, Data Protection and
security.
(ii)
Amendment
to TRIPS towards recognition of AI and ensure to affirmatively apply it in all
its member countries
(iii)
The
issue relating to the “Personality of AI” should be determined.
(iv)
The
questions of attributing “Inventorship” under the Patent law and “Authorship”
under the Copyright law is to be discussed, taking the contemporary
advancements of AI in almost every sphere of life.
(v)
The
issue of “Shared Inventorship” between a human and an AI machine, the
parameters and the responsibilities of each of them should be given due contemplation.
(vi)
The
issue of distinction between “Inventorship” and “Ownership” pertaining to
AI-invention applications should be given due cogitation, similar to
traditional applications.
(vii)
The
issue pertaining to the attribution of “Proprietorship” to the person who
invents AI, whereby AI producing a new product without the person’s
intervention whatsoever, i.e., proprietorship to person or machine is to be
critically scrutinized.
(viii)
The
question as to whether an AI machine/computer can file a provision application for
grant of patents, for an invention produced without human intervention should
be crucially dealt without constraining the existing IP rules and policies.
(ix)
In
addition to question supra, the issue of incapability of an AI machine to file
an application resulting in the invention to fall within the public domain
should also be crucially interpretated as the very same is against the
principles of IP protection laws.
(x)
The
issue pertaining to Artificial Intelligence overtaking Human Intelligence and
machines performing functions and decision-making better than humans must be
kept in check and a legislation governing AI perse should be drafted to defeat
adversarial consequences posed by AI if any in the future.
(xi)
The
attribution of Criminal Liability to the creator of AI who copyrights the acts
of AI and is not aware of the actions of AI, is an area of lacunae to be
cautiously dealt with. Sanctions may be granted to the AIs and not the innocent
creators as the creators may not have direct control over the autonomous
actions of AI.
(xii)
The
issue of Artificial Intelligence surpassing Human Intelligence should be dealt
extensively by framing elaborate rules and strict laws whereby stressing the
importance of human commanding and controlling its own creations i.e., AI systems
(xiii)
Guidelines
in respect of maintaining a balance between incentivizing human inventors to
invent AI systems and preventing complete autonomy of artificial intelligent
systems is the need of the hour as the impact and consequence of Artificial
Intelligence over Human Intelligence and Human Life is unimaginable.
Conclusion:
“The upheavals [of artificial
intelligence] can escalate quickly and become scarier and even cataclysmic.
Imagine how a medical robot, originally programmed to rid cancer, could
conclude that the best way to obliterate cancer is to exterminate humans who
are genetically prone to the disease”
-Nick
Bilton
Artificial Intelligence is a
REVOLUTION. Artificial Intelligence is the intelligence owned by machines/computers
through which they perform innumerable functions with or without the aid of
human intelligence.
Taking into consideration the
alarming rate at which AI related applications are filed seeking IPR
protection, the World Intellectual Property (WIPO) should take steps in making
significant changes in the TRIPS agreement by taking inputs from the
stakeholders. Further new conventions and agreements can be drafted pertaining
to AI in IPRs.
In India too, the
existing legislations pertaining to IPR can be amended encompassing the AI and
AI related systems. The NITI Aayog’s Report of “Towards Responsible AI for all”
also suggests the need for granting protection to AI-generated inventions and
AI solutions to enhance creativity and economy.
The implications of AI systems in the
field of laws, particularly IP laws should be constantly amended in par with
the contemporary developments of AI keeping the ethical, moral, legal, social,
economic, privacy, data-security considerations in mind. The fundamental aspects
of Incentivization of Invention and Innovation and Promotion of Research and
Development should not be compromised but at the same time the ramifications of
AI technology on Invention, Economy and Society have to be cautiously assessed
before granting Patents or Copyrights, so that the Inventions or Creations does
not thwart the chain of human existence.
The unprecedented growth of AI is
ineffable. Artificial Intelligence is a double-edged sword. The rapid
development of AI in the field of technology is going to have a drastic effect
on the human race as a whole. The effects might be positive and negative. AIs
may solve the difficult problems posed to the human intelligence in the field
of medicine, agriculture etc but will also have far-reaching consequences where
the machines supersede humans and evolution of super-intelligent AIs might
bring an end to the evolved human civilization. So, laws must be amended or
legislated accordingly where all the complexities, challenges, issues discussed
supra are given a thorough analysis and research in a way that it doesn’t
envelop whole of human-race into the AI machine ruled world.
Article Information
RAMIFICATIONS OF A NEW- DAWN: ARTIFICIAL INTELLIGENCE IN INTELLECTUAL PROPERTY RIGHTS (By-Gangadarsana P G)
Authors: Gangadarsana P G
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/31
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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