Open Access Research Article
“CONCEPTUAL ANALYSIS OF AI AND ITS EFFECT ON IPR” BY: A YUVRAJ
Published Paper
Article Details
“CONCEPTUAL ANALYSIS OF AI AND ITS EFFECT ON
IPR”
AUTHORED BY: A YUVRAJ
2050101
3rd Year (6th semester)
B.A. L.L.B. (Honors) School of Law,
CHRIST (Deemed to be University)
Abstract
The idea of artificial intelligence is not new and there is a growing
debate about whether
it should have legal protection due to its impact
on human activities.[1] This article explores the concept of legal personality and whether it could be applied to artificial intelligence systems. Legal personality is a category that encompasses
a set of rights and obligations.[2]
There is a growing movement to
expand the definition of legal personhood beyond humans to include animals, artificial intelligence, and other entities.
This is due to changing views on the position of individuals in society and a rethinking of traditional legal categories. In the past, legal personhood was closely tied to the concept of subjective right and the
legally significant will of the person. However, a shift away from this theory has led to a reexamination of the definition of personhood. The article aims to define the essence
of legal personhood and argues that Hohlfeld's approach to subjective-legal structures allows for
the recognition of animals and artificial intelligence as possessors of subjective-legal categories.
The author employs analytical jurisprudence to explore the emerging issues surrounding this topic.[3]
Keywords
·
Artificial intelligence,
·
Intellectual property,
·
Legal Personhood,
·
Author,
·
Legal Liability.
Research problem/statement of the problem
v
Lack of Legal
regulations and legislations to regulate the interaction of AI with IPR.
Research question
·
Is our legal
system 21st century
ready?
·
Implication of the rise in AI on IPR?
·
Can AI come under the umbrella of legal person
and if so, can it avail authorship and personhood/ rights?
Research Methodology
The paper is analytical and conceptual research on the topic of AI and
its effect on IP, employing secondary
data. The data set out in this paper is based on a review and critical analysis of both international and
national literature on AI and IP. The literature is largely conducted in the fields of AI and the
issues of legal personality. Online searches of academic studies were taken from library-based and free access
internet engines (JSTOR, Google Scholar,
Hein Online, ScienceDirect, etc.). A major
part of the data has been taken directly from books and journals by the lead author’s empirical research of both IP and AI.
Scope and limitations
As mentioned earlier- this is a library type of research. The scope of
the research relies on already
existing information and is limited
to such fields.
The research is limited and barred from
field work/ field type of research due to the nature and timing of the assignment. The dynamic and
ever-changing and developing nature of AI and its field brings up new challenges to the field of IP and Law;
posing as an ever-greening issue. The paper talks about the relevance
of AI and IP, scope in
both national and Intenational economies.
1.
Introduction
The
concept of Artificial Intelligence (AI) is no longer unfamiliar to us, as it is
becoming an increasingly common part
of our daily technology. Despite not fully understanding what AI is or how it works, we use it frequently, knowingly
or unknowingly, in various forms such as Alexa, Navigation Maps, and Chatbots. AI has
been defined differently by various scientists, with some describing it as a machine learning branch
of computer science that aims to create "intelligent machines." Simply put, AI refers to a
machine's ability to perform tasks that typically require human intelligence. The integration of AI
has disrupted traditional Intellectual Property Rights (IPR) practices, with AI now being able to generate IP assets
for companies and make purchases for
consumers. AI interacts with various aspects of IPR, including Trademark,
Copyright, and Patent Law in
numerous ways.[4]
2.
Jurisprudence/ personality status and persons
in law
It may be smart,
but it’s not that clever.
Although Artificial Intelligence (AI) is a powerful tool that has the potential
to revolutionize lives and
boost economies, it is useless without human input. The algorithms that power AI rely on the skills and knowledge
of programmers. Therefore, it is still a tool, albeit a powerful one, that scientists and engineers can use to solve
problems. However, this does not diminish
the fact that AI is the fastest-growing deep technology globally. In instances
where AI generates something new, the programmers who developed the system should
receive recognition for their innovation and contributions
to the public good. Alternatively, should AI alone receive credit as the originator
of ideas that will shape a new future?[5]
2.1.
Legal Personality
Why is it more challenging to classify AI as "mere things"
compared to regular non- intelligent
objects? The straightforward answer is that AI is capable of making independent decisions, while ordinary objects, no
matter how complex, merely perform the predetermined actions established by their human users or designers. If artificial agents
that lack legal personality act autonomously, relying on their
cognitive and behavioral abilities, they do not bear the legal repercussions (positive or negative). This
may result in an accountability problem where either human is responsible for actions they did not intend to perform,
nor could have reasonably prevented, or there is a gap in liability where no one
can be held accountable.[6]
Artificial
intelligences are essentially objects, and although they can be highly
advanced, they are mainly classified as legal "things" since they are ultimately directed
by the choices of their
designers, producers, or users. This classification has significant
consequences for legal capacity and responsibility, except for damages
resulting from programming or manufacturing defects.
The focus is on damage caused by the proper functioning of AIs or the interaction
between data, inference models, and humans.[7]
In
the legal context, the term "person" refers to someone who possesses
certain legal positions, such as
rights, duties, liberties, powers, and responsibilities. These positions
typically have legal implications for
the person and create a series of corresponding legal obligations for others.[8]
To be more exact, we can define the most basic concept of a legal person,
which is the narrowest interpretation of personality: an entity is considered a legal person
if there is a minimum
of one rule that grants
it a right or duty (or if it can obtain
one by fulfilling a particular operational condition). This basic concept of legal personality, which we will refer to as legal subjectivity, has the
potential to expand into multiple institutional personality statuses, each of
which is given to a different type of
entity and has unique legal outcomes.[9]/[10]
To
further limit the concept of legal personality, it is possible to grant it to
other entities, such as unborn children, animals, and natural
entities like mountains,
rivers, and ecosystems. This is based on the
idea that these entities have their own interests that require legal
protection, and they can be granted
legal rights based on this interest-based conception of subjective rights. However,
the exercise of such
rights would still require the involvement of human
agents.
Ultimately,
each personality status serves to identify a specific set of rules that apply
to a particular type of entity,
and as a result, each instance of that entity
is granted the rights and duties that arise from those rules.[11]
2.2.
Rights of Author/
inventor and the AI
The focus of the ongoing debates is on the test cases
that involve patent applications for two
AI inventions. Dr. Stephen Thaler, the inventor of an AI system named Device
for the Autonomous Bootstrapping of
Unified Sentience (Dabus), has been collaborating with Ryan Abbott, a professor of law and health
sciences at the University of Surrey, to assess the laws of different
countries. Their objective
is not to secure patents
for AI systems themselves but to obtain
patents for any invention that an
AI system may generate.
In Thaler's patent applications, Dabus has been
identified as the sole inventor of two inventions:
an improved beverage container and a neural flame device employed in
search-and- rescue operations. The patent applications have been declined
in both the US and the UK because only individuals, not machines, can own patent rights. An appeal has been filed in the UK Supreme
Court.
The IPO has expressed its appreciation for the decision
and the clarification of UK law, stating
that it has no intention of granting patent rights to AI systems but instead
plans to award them to "individuals and firms
that utilize and invest in AI technology."[12]
On the opposite side, judges in Australia and South
Africa have decided that AI can be identified
as the owner of rights in patent applications. The implications of these
rulings and how they should be viewed are a matter of debate among prominent patent
lawyers.[13]
2.3.
Impact of Artificial Intelligence on Intellectual Property Rights
“Can machines think?” – Alan Turing, 1950
Several years after playing a key role in defeating Nazi
Germany, renowned English mathematician, cryptanalyst, and computer scientist Alan Mathison Turing wrote a
paper in 1950 entitled "Computing Machinery
and Intelligence," in which he posed a simple yet intriguing question:
"Can machines think?" His paper and subsequent research
established the basis for what we now call artificial intelligence (AI) or machine learning/intelligence. Over time, the concept of AI
has become much more complex than researchers of half a century ago had
envisioned. As of today, AI, or a machine that can think
and act as closely as possible to a human mind, is an exciting
new development in the field
of technology.
Since the Turin Test in 1950, technology, particularly in
the field of AI, has progressed dramatically,
with major developments such as Google's Home device (2016), Apple's virtual assistant
Siri (2011), Microsoft's virtual assistant Cortana
(2014), Amazon's home assistant Alexa
(2014), and the creation of Hanson Robotics' humanoid robot Sophia in
2016. Many of these developments
occurred in the past decade (2010 to 2019).[14]
? Today, AI can be dissected into two types
of intelligence, namely:
1.
Weak
AI: Weak AI is a widely used type of AI, employed
by major corporations like Google,
Apple, and Microsoft. Although its applications are widespread, its
capabilities are limited
to tasks for which it has been trained. It can store data and present it to the user when requested, but the algorithms used
do not allow this AI to think or act in a way that resembles the human mind. Therefore, within the domain of IP,
this AI does not pose a significant threat.
2. Strong AI: Strong AI is a type of artificial intelligence that can perform
cognitive functions that more closely resemble human thought
processes than weak AI. While weak AI is limited to performing specific
tasks, it has been programmed to do, strong
AI can not only perform
these basic functions
more efficiently than humans but can also complete complex
tasks such as inventing or creating new intellectual property, such as a
unique design, copyrightable sound or video.
3. AI's impact on current laws and practices is evident as
it becomes a digital frontier. The current global
intellectual property (IP) regime only recognizes a "person" as the owner of IP, which means that IP generated or
invented by AI cannot be registered (Naruto v. Slater)[15]. However,
a recent Chinese
court decision in the Tencent
case held that an article
created by an AI is eligible for protection under Chinese
copyright law[16],
contrary to the Naruto case and the European Patent Office (EPO) decision on
patent applications filed by AI technology called DABUS. The EPO held that a human being must file the
application, similar to the Naruto case. Professor
Ryan Abbott[17]
and his team at the University of Surrey attempted to file the first-ever patent application without a human
inventor[18]
using their AI called DABUS, indicating the emergence
of AI-based IP filing. However, the lack of existing laws led to the
application being refused.
The principle of "sweat of the brow" is an old
but sometimes relied upon principle by Courts
worldwide. It emphasizes the inventor's hard work and effort invested in
creating an IP. However, this principle becomes
complicated when it comes to IP generated
by AI. Commercializing AI might lead to the dilution of IP rights since
AI could potentially generate IP more efficiently than humans. This may eventually lead to AI being considered a "smarter" variant
of a human inventor as it would require less time and effort to generate
a registrable IP. Along with the aforementioned issues,
several other unknown
issues are likely to arise with the commercialization
of AI for IP generation. Thus, there is a critical need to identify and resolve these issues as soon
as possible.[19]
3. Artificial intelligence and intellectual property
3.1.
Authorship
“We must prepare
now for a future that will surely come.”
In 1977, the Whitford Committee discussed the issue of authorship for computer-generated works,
but at that time, computing technology was still in its early stages.
The first programmable computer, the German-built Z1 developed by Konrad Zuse, was not
invented until 1941, and its computing power
was far less than what is found in today's
mobile phones.
It is important
that the law is based on clear and logical principles, rather than on convenience.
In addition, there may come a time when the artificial grant of authorship may
be challenged in litigation. Therefore, the law must provide certainty
for all parties involved, and we must anticipate potential
problems and be proactive in creating legislation that establishes the true author/inventor of such works.
Even if it requires a significant shift
in thinking and the creation
of a new legal entity, we
should recognize the reality that the rights should be granted to the appropriate entity.[20]
3.2.
IPR and AI
3.2.1.
Interaction of AI with Trademark Law
A trademark is a symbol used by businesses to
differentiate their products and services from
those of their competitors, enabling consumers to easily identify the source of
a product. However, as AI technology becomes more prevalent in areas such as e-commerce, there is a reduced need for human involvement in
the purchasing process. Voice assistants like Alexa can be used to buy products from a specific brand, with tasks either
partially or fully automated. This decrease in human involvement raises questions about traditional trademark
concepts like "likelihood of confusion" and
the "concept of average human," which may no longer be relevant. The goal of trademark law is to protect both the owner's
rights and the consumer
from counterfeit products. With AI's ability to identify products
without the need for a trademark, it may influence consumers' purchasing behavior
and reduce the likelihood of purchasing
counterfeit products.[21]
3.2.2. Interaction of AI with Patent
Law
Machines equipped with AI are now capable
of innovating based on their own intelligence and knowledge, with or without human assistance. While this is
a remarkable development, it presents
several unfamiliar challenges and threats to the existing legal system.
Questions have emerged such as whether
AI-generated inventions can be patented
and, if so, who owns the rights
to these inventions.
3.2.3. Interaction of AI with Copyright Law
Advanced AI machines are now capable of
producing various types of artistic works, including
music, painting, and poetry without any human involvement. However, this poses challenges for authorities in terms of
determining ownership and copyright of such creations, as well as identifying possible infringement by AI.
The Copyright Laws of different nations acknowledge only
human beings as the creators of any artistic work. A well-known case that raised a similar
issue was Naruto
v Slater[22] (Monkey- Selfie), where a monkey took a selfie using a photographer's camera. The question
of ownership of the photograph
was debated in court, and it was ultimately decided that animals cannot hold copyright protection since only humans are
entitled to it. Similarly, in the case of AI machines, authorities hold a similar view regarding copyright ownership.
AI is not recognized as having ownership rights
over its creations.
3.2.4. Ownership Rights
The current legal framework does not recognize AI as either
an inventor or a patent
holder. In the Indian Patent
Act, the term "true and first inventor" is defined in Section 2(y),
and the use of the word
"person" in this section implies that only humans can be considered
inventors. Additionally, Section 6 of
the Act specifies who is eligible to apply for a patent, and when both sections
are read together,
it becomes clear that only humans are eligible to apply for patents.[23]
4.
Conclusion
The current state of IP laws
is insufficient to keep pace with the rapid advancements in AI technology. Companies are investing more
in AI than ever before, making it necessary to modify and effectively implement IPR laws to address these
challenges. While some of these problems have yet to arise, they will eventually. As intellectual property
rights continue to play an increasingly
important role in commerce and become more valuable, we can expect to see many unique
challenges to ownership in
infringement cases.
There are some who believe
that we will never be able to fully understand intelligence and, as a result, will never be able to create
a true artificial intelligence system. However, we should keep in mind that this same sentiment was expressed about life twenty
years ago. At the time, life was considered to be a divine
gift that could not be replicated or understood.
[1] Jaynes,
T.L. Legal personhood for artificial intelligence: citizenship as the exception
to the rule. AI & Soc 35, 343– 354 (2020).
[2] Claudio
Novelli, Giorgio Bongiovanni & Giovanni Sartor, A conceptual framework for
legal personality and its application
to AI, An International Journal of Legal and Political Thought Volume 13, 2022
- Issue 2, Pages 194-219 (2021).
[3] S. K.
Stepanov, Deconstruction of the legal personhood of artificial intelligence,
DOAJ Vol. 2, no. 2 pp. 14 – 30 (2021).
[4] Chitwandeep
Kaur & Shivam Nayyar, Interaction of Intellectual Property
and Artificial Intelligence, Upscale Legal (September 14, 2022), https://upscalelegal.com/interaction-of-intellectual-property-and-artificial-intelligence/.
[5] Peter Archer,
AI inventors: can AI own intellectual property
rights?, Raconteur (December 10, 2021), https://www.raconteur.net/technology/ai-intellectual-property-rights/.
[6] Supra 2.
[8] On correlatives see
Wesley N Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning’ [1913] Yale Law Journal 16.
[9] A similar point
has been raised by Tomasz Pietrzykowski, who recognises an intermediate category of legal entities
which he calls nonpersonal subjects
of law, in Tomasz Pietrzykowski, ‘The Idea of Non-personal
Subjects of Law’ in Visa A. J. Kurki and Tomasz Pietrzykowski (eds), Legal Personhood: Animals,
Artificial Intelligence and the Unborn
(Springer International Publishing 2017).
[11] Supra 2.
[12] Aldo Alvarez-Risco, Shyla Del-Aguila-Arcentale,
A Note on Changing Regulation in International Business: The World Intellectual Property Organization (WIPO)
and Artificial Intelligence, The Multiple Dimensions of Institutional Complexity in International Business
Research, 4 March 2021.
[13] Supra 5.
[14] Ryan
N. Phelan, Artificial Intelligence &
the Intellectual Property Landscape, Marshall Gerstein & Borun LLP, published
by Lexology; (September 14, 2019), https://www.lexology.com/library/detail.aspx?g=8c2b5986-95bb- 4e8e-9057-e4481bfaa471 .
[16] Stefano Zaccaria, AI-written articles are copyright-protected,
rules Chinese court, World Intellectual Property Review (WIPR); (January 10, 2020) https://www.worldipreview.com/news/ai-written-articles-are-copyright- protected-rules-chinese-court-19102).
[17] EPO refuses DABUS patent applications
designating a machine inventor, European
Patent Office; (December 20, 2019), https://www.epo.org/news-issues/news/2019/20191220.html.
[18] Laura Butler, World
first patent applications filed for inventions generated solely by artificial
intelligence, University of Surrey; (August
1, 2019), https://www.surrey.ac.uk/news/world-first-patent-applications-filed- inventions-generated-solely-artificial-intelligence.
[19] Rohan Seth,
Contemporary and Upcoming Issues In the Field of Intellectual Property Rights,
The Peninsula Foundation (September
10, 2020), https://www.thepeninsula.org.in/2020/09/10/contemporary-and-upcoming-issues- in-the-field-of-intellectual-property-rights/.
[20] Colin R. Davies, An evolutionary step in intellectual property rights – Artificial intelligence and intellectual property, Computer Law & Security
Review Volume 27, Issue
6, Pages 601-619 (2011).
[22] Andres
Guadamuz, Artificial intelligence and copyright, Wipo
Magazine (October 2017) https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html.
Article Information
“CONCEPTUAL ANALYSIS OF AI AND ITS EFFECT ON IPR” BY: A YUVRAJ
Authors: A YUVRAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/27
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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