AI IN INTELLECTUAL PROPERTY: LEGAL CHALLENGES AND THE IMPERATIVE FOR LEGISLATION BY: T K TUSHAR
AI IN INTELLECTUAL PROPERTY:
LEGAL CHALLENGES AND THE IMPERATIVE
FOR LEGISLATION
AUTHORED
BY: T K TUSHAR
Designation:
Final year BBA.LL. B student of Presidency University Bangalore
Contact
Details: +917974943100
E-Mail: Tktushar219@gmail.com
Abstract
This paper concerns with the need for
legislation to govern Intellectual property Rights in robots and the products
produced by them.
The robot as a whole can be granted
protection as a machine under patent law and its software or AI and database
can be granted protection under copyright law in India.
The shape and parts of the machinery
which helps the Ai or software to perform its functions can be granted
protection under the designs Act 2000 and the structure of tis circuit can be
granted protection under ‘Semi-Conductor Integrated Circuit’.
The main issue lies on the ownership
of intellectual property produced by the Artificial Intelligence or the
software, this issue can be addressed by way of International Landmark cases in
this aspect, there is clear need for legislation as the artificial intelligence
has become a significant part of our lives, and is evolving with us every
minute.
Research Methodology
The method of research that is used
while doing this research paper is theoretical research ‘Doctrinal Method of Research’ as the research is based on secondary
sources of information such as Internet Articles, Journals, Text books, etc.
Research Hypothesis
The
existing legislation lacks the jurisdiction to cover the rights of the works
created by an Artificial Intelligence.
Research
Question
1. Is there a need for a new legislation
for AI generated IP works?
2. What will be the effects of granting
AI the rights of IPR owner?
Introduction
In today’s world, the artificial
intelligence has become so advanced that it can now create art and assist in
creation of various inventions which held boost our science, but the main issue
which arises while using an Artificial Intelligence is whether the work
produced by it will be protected or not? To answer this issue we need to simply
the existing laws and assess the need of a fresh and clear legislation on the
subject matter. Since, The work produced by AI is not protected directly under
any law it raises certain issues which will be answered through various
interpretations of international conventions and case laws. AI is a necessary
part of our lives and provides assistance in various uncountable ways, it
studies the data given to it and predicts the nature of its consumers or users
which in turn eases the job of tech giants such as google, amazon and Facebook.
There was study conducted by Facebook where it created two AI chat bots and
made them have a conversation with each other, it was soon noticed that the
chat bots started using a language which could only be understood by them and
had to be deactivated as they no longer served the purpose they were created
for that is to analyse how they will interact with a user in the future. Though
this interaction between the bots did not cause any danger to anyone but it
made a very significant observation that the Artificial Intelligence has the
ability to create something of its own, which raise the question again of
ownership of the content or work created by it and its protection under various
laws.
What Is An AI?
Unlike the inherent intelligence
exhibited by both humans and animals, AI is the intelligence expressed by
robots.
The most intricate organ in the human
body, the brain regulates all bodily processes and processes information from
the environment. About 86 billion neurons make up its brain networks, which are
connected by an estimated 100 trillion synapses. Neuroscientists are still
working to comprehend and unravel many of its implications and capabilities.
The fundamental principles of AI are
similar to how humans continually change and learn. Machine intelligence
technologies will advance as a result of human intellect, creativity,
knowledge, experience, and invention.
History of
Artificial Intelligence (AI)
Alan Turing, explored the possibility
of AI, in his paper “Computing Machinery and Intelligence, in 1950, in which he
stated that if humans can solve a mathematical problem using the information,
they have then machines can do it too.” Five years after Turing’s paper, the
term Artificial Intelligence was coined on August 31, 1955. It appeared in a
proposal titled “2 month, 10 man study of artificial intelligence”.
TRIPS Agreement
The WTO Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) is the most complete
multilateral intellectual property (IP) agreement. It plays a central role in
promoting trade in knowledge and creativity, resolving trade disputes over
intellectual property, and ensuring that WTO members have the headroom to meet
their domestic goals.
It frames IP systems in terms of innovation,
technology transfer, and public welfare. The agreement legally recognizes the
importance of the link between intellectual property and commerce and the need
for a balanced IP regime.
TRIPS do not define invention and is
left to member states, so we can grant protection of patent to AI, if the
member states categorise it as invention in their respective nations than
protection can be granted by the courts in this regard, since there exists no clear legislation on
this regard any owner of IP(AI) can seek protection in India if India
recognizes the artificial intelligence as an invention, but India only provides
protections to software’s code based on their expression and not on
their functionality, so a software is not recognised as an invention under
Indian Laws.
Som Prakash Rekhi vs. Union of India
& Anr[1],
define the qualification of a legal "person" under Indian law. The
Supreme Court has held that "personality" is the sole attribute of a
corporation. Such a "personality" is an entity that has the right to
sue or may be sued by another entity. AI cannot use such rights or
independently perform the tasks required of the legal entity. For example, it
is not possible to enter into contracts, assign or acquire patents or patent
application rights. It is also impossible for AI to contest or cancel a patent
application. Therefore, AI does not meet the criteria to be considered an
inventor in India.
Issues:
1. There is no specific law for the
regulation of works created by an AI,
The only solution that
can be attained is through interpretation of international conventions and
precedents of foreign nation.
Here the case of David
Slater v Wikimedia Commons[2] also
known as “Monkey Selfie Case” can be referred to understand the concept of ownership
of IP, when it is created by a non-human, in this case the court in united-states
held that the picture has no copy right as it has no author, because a
non-human cannot be considered as an author.
Applying the same
interpretation in terms of and Artificial Intelligence, it can be observed that
since an AI is not an human and does not have necessary characteristics of a
human, it cannot be given the right of ownership of the IP created.
So, will the owner of AI be the owner of IP created by
it?
Any patent that is sought
for and awarded over an invention belongs to the inventor as the original owner
and the developer/inventor. Due to the fact that "innovating or
inventing" an invention is a human activity that entails contributing to the
innovative notion, the legislation currently in place prevents AI from being
the inventor and, thus, the owner of a patent. The inventor or the employer is
the rightful owner of the invention and any patent that has been obtained over
it (if an employee devices invention).
2. AI covered under different laws of
IPR which makes it difficult to simply.
An artificial
intelligence is an computer programme who is able to process the data provided
to it and could create alternate solutions from it.
An AI’s core code is protected
under the copy right act in India but its out structure such as an robotic arm
will be protected under designs act in India for its uniqueness, its structure
of the electrical circuit can be protected under Semi-Conductor Integrated
Circuit’ which is an another segment of IPR. Due to various legislations
available on a single product it can be difficult for a layman to understand
and seek remedy in case of an infringement.
3. No laws relating to infringement done
by an AI
An Infringement can only
be done by a person under section 51[3] of
the copy right act, 1957. Since an Artificial Intelligence is not considered a
person under the law, any act done by it even an infringement under the common
sense, it cannot be considered as an “Infringement” under the law.
4. If works
created by Artificial Intelligence are given the status of IP then following
will be the issues which will arise:
a) If the
courts decide to revisit the issue of AI authorship and treat AI as a creator
of AI-generated works, a Pandora's box of legal disputes might follow.
b) It may
possibly make it more difficult for inventors to secure patent protection by
raising the bar for innovation or fundamentally changing what is meant by
"person versed in the art."
c) Accepting
inventorship for AI systems would grant AI the powers of a legal person,
granting it the ability to own and use property.
d) Accepting
inventorship to include AI systems would elevate AI to the status of a legal
person, allowing it to hold and exercise property rights.
e) The
Artificial Intelligence will forever remain the owner of the work as an Artificial
Intelligence can never die.
Why There
Is Need For Legislation?
·
AI
a bigger part of life:
Our daily activities are
mostly driven by AI technology from dawn to night. Many of us pick up our
laptop or cell phone as soon as we wake up to begin our day. Our
decision-making, planning, and information-seeking processes now all
automatically include doing this.
·
Home
Aid uses:
Voice commands are used
by these AI-based smart assistants to carry out tasks. Alexa, Siri, Google
Assistant, and Cortana are a few examples of such intelligent assistants. Your
voice instructions are entered into the AI-powered personal assistants, which
later convert them into actions.
·
Ai
used in computing, management systems and gaming:
The gaming industry is
another area where AI technologies have gained popularity. AI may be utilised
to develop intelligent, human-like NPCs that communicate with players.
In order to enhance game
design and testing, it may also be used to forecast human behaviour. The 2014
Alien Isolation video games employ AI to follow the player around at all times.
Two artificial intelligence systems are used in the game: the "Director
AI," who frequently knows where you are, and the "Alien AI,"
which is controlled by sensors and behaviours and persistently pursues the
player.
·
Applications Of Artificial Intelligence in Education:
The education sector is
the one that is most impacted by humans, but artificial intelligence has also
started to make inroads there. Even in the field of education, this gradual
adoption of AI has increased faculty productivity and allowed them to focus
more on students than on administrative or office labour.
What Software
Can Be Patented In India?
Software as a whole is not patentable
under Indian law, but embedded software may be. The Indian Courts have
not yet provided a precise definition of software. According to the 2015
Computer Related Inventions Guidelines, the patent office awarded several
software patents in accordance with the following criteria.
a) The
hardware of the innovation and the software should be novel.
b) If the
hardware or the machinery part is unique or new in nature then only patent can
be granted in this area.
c) In the
event that an innovation depends only on the computer programme, then the
patent office should reject such claims.
d) The patent
office has the full authority to dismiss or return any application if the
hardware or machinery fully depends on the software and cannot stand on the
test of novelty without the software.
e) If a
computer programme and hardware coexist, the examiner should consider
additional patentability factors.
John
Locke’s Natural Right and Labour Theory
An intangible asset derived from
mental production is intellectual property. The government grants the right to
exchange the protection for the details on the intangible asset. A person must
possess a sound mind that can process information in order to construct a mind.
A person has ownership rights over everything he or she has created. A person
has ownership over what they laboured to create. 55 when labour and resources
are used to create anti-commons on a global scale Intellectual property becomes
a natural right in the mind. "Whether in tangible or intangible terms, a
person has a natural right to the products of her labour and that these should
be acknowledged as her property."
AI has a creation of mind that is
made by software developers utilising algorithms and programme codes in
accordance with the Natural Right Theory, however the labour input for the
problem's resolution comes directly from AI's design. The "fruits of the
labour" should be acknowledged as AI's property as it is the creator of
the works.
Personality
Theory
A person's self-evaluation while
creating is known as personality theory. The creator of the personality theory,
Hegel, claims that in addition to defending property rights, intellectual
property rights also safeguard individuality. The individual should have the
freedom to choose when and how he wants to work, as well as how his work should
be made public. 57 The theory's sole flaw is that there isn't enough of a link
between the innovation and the idea of personality. Through the personality
idea, the human involved in the AI's innovation process may be safeguarded.
Utilitarian
Theory
The creator of utilitarian philosophy
is Jeremy Bentham. 58 The rule is to always use your power for the greatest
good. The individual who came up with an idea should receive compensation for
their efforts, keeping in mind the invention's larger value. IPR has an impact
on the social and economic improvement of society, according to the utilitarian
model, which is essentially an economic and socially advantageous idea. If the
incentive is offered, individuals will work harder and invest more money, time,
and effort in their job, leading to more breakthroughs and inventions. However,
mere production is not sufficient; for the benefit of the general populace, the
invention must be made accessible.
The best way to analyse utility
theory is in conjunction with incentive and reward theory. Incentives like
royalties must be given in order for numerous efforts and inventions to be
necessary and required. Customers may not be able to match the public's needs
in terms of quality or quantity if they are not paying proprietors the proper
amount. It is appropriate for the creator to get compensation when they produce
something that benefits society and is valuable. It is more akin to expressing
thanks.
Conclusion
There is a significant need to have a
new legislation for AI and its work to be included and governed, if the old
legislations are amended to include the new aspects of AI then it will surely
cause more confusion in the minds of people, the works of AI has to be
protected even though it might not be a ‘personality’ under the law. Since nowadays
most of the calculations and works are happening with the assistance of AI we
can not leave the work created to be unprotected by the law. The question of
ownership will remain a difficult task for legislatures to deal with but can be
solved if foreign precedents are looked at for better clarity. It is important
to note that since the law does not see an artificial intelligence as a person,
any infringement done by it cannot be termed as an infringement of intellectual
property rights under the law, which leaves a very huge space which is
unregulated currently and is in need of an regulation immediately keeping in
mind the pace of growth and evolution of the Artificial Intelligence.