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EXAMINING INTELLECTUAL PROPERTY RIGHTS IN THE AGE OF ARTIFICIAL INTELLIGENCE: AN ANALYSIS OF CHALLENGES IN INDIA AND A GLOBAL OUTLOOK
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Article Details
"EXAMINING
INTELLECTUAL PROPERTY RIGHTS IN THE AGE OF ARTIFICIAL INTELLIGENCE: AN ANALYSIS
OF CHALLENGES IN INDIA AND A GLOBAL OUTLOOK"
AUTHORED BY
- RAJ BORELE
ABSTRACT
Once perceived as a distant concept,
Artificial Intelligence has transitioned from the realms of literature and
cinema to a tangible reality, rapidly gaining prominence in recent years and
leading to significant advancements across various domains. Its impact is
pervasive, touching upon every sector, and Intellectual Property Rights (IPR)
is no stranger to its influence. Artificial Intelligence (AI) is poised to exert a dual
influence on Intellectual Property Rights (IPR). On one hand, it holds the
potential to bring about positive outcomes in areas like patents, patent search
engines, and precise research methods, facilitating the organization of
innovations and ideas. On the flip side, AI may pose a threat to the essence of
IPR, which lies in fostering innovation and growth. This is manifested in AI's
ability to present inventors with existing patents closely aligned with their
ideas, potentially impeding genuine progress. This research paper will delve
into the impact of digital technologies on IPR, explore the pros and cons of AI
in relation to innovation and development within the IPR framework, and
consider future perspectives on the role of AI in IPR.
Keywords- Artificial Intelligence,
Intellectual Property, Innovation, and Accountability
INTRODUCTION
The term "Artificial
Intelligence (AI)" encompasses tasks performed by machines without human
intervention. The term "machine" can substitute for
"computer" in this context. Examples of cognitive technologies include
natural language processing, sentiment classification, face recognition, risk
assessment, and fraud detection. Industries may utilize AI to supply real-time
data for monitoring supply chains and offer instant notifications for
manufacturing activities.
Artificial intelligence is
characterized as a field of study focused on comprehending human intelligence
by means of computer programs. It involves simulating intelligent human
behavior and denotes a computer program's capability to address problems or
make decisions. In essence, the program autonomously determines the approach to
problem-solving or decision-making, identifying parallels between diverse
situations and adapting to novel circumstances[1].
Countless data sources, encompassing
both structured and unstructured, domestic and international, can be
safeguarded. A substantial portion of this data holds the potential for
crafting customized presentations for clientele. Automated vehicles powered by
AI have the capacity to replace instances of human error. When AI is integrated
with the Internet of Things, there is the prospect of creating smart cities
characterized by reduced pollution and enhanced traffic control[2]
Ever since John McCarthy coined the
term "Artificial Intelligence" as "the engineering and science
of producing machine intelligence" in 1955, he anticipated that achieving
theoretical milestones in this field would span five to five centuries[3].
He was accurate. Presently, systems can generate substantial volumes of
content, aid in processing extensive digital data, and predict legal outcomes.
However, the Intellectual Property (IP) terrain is becoming increasingly
competitive, and entities dependent on IP portfolios now face a more limited
timeframe to ensure global protection and utilization.
Machine learning is a subset of
artificial intelligence. The system comprises convolutional neural networks,
essentially computer applications. Within this system, optimization algorithms,
involving mathematical processes and a set of variables, yield outcomes akin to
human intelligence. Deep learning and machine learning stand out as the
fundamental components of AI, with deep supervised machine learning appearing
as a particularly fitting descriptor for AI. Machine learning obviates the
necessity for a step by-step directions to obtain the output.
The hardware or system, similar to a
human, arrives at intelligent decisions based on these structures. The term
crucial in this context is cognition. Human development is characterized by
four cognitive processes: observation, memory, recollection, and reasoning[4].
When a computer is granted the capacity for intellectual learning, it can
manage, handle, and analyze extensive quantities of unprocessed data.
Unstructured information includes documents, periodicals, metadata, analog
data, such as content in emails, audio recordings, media files, webpages,
medical histories, and scientific documents.
Unstructured information encompasses
the verbal, aural, and visual elements of human interaction. Machine learning
utilizes these forms to recognize extensive data sets. In the field of
education, instructors based on AI can deliver personalized training and
guidance to students, creating a customized learning environment that caters to
individual needs. In the healthcare sector, AI finds multiple applications,
including hospital administration, disease diagnosis, patient monitoring,
enhancement of clinical outcomes, improvement of healthcare system and
therapeutic decision-making, enrichment of care management, and optimization of
facility efficiency.
SIGNIFICANCE
OF THE STUDY
To reap the advantages of AI in the
realm of intellectual property (IP), companies must devise an appropriate IP
strategy for their machine learning and AI systems. Such a strategy is essential
for securing a competitive advantage over current or potential competitors,
showcasing innovative foundations, and enhancing attractiveness to both
investors and buyers.
STATEMENT
OF PROBLEM
There is a considerable possibility
of an inundation of intellectual property rights (IPR) claims due to the
significantly enhanced inventiveness of AI technology compared to humans. The
future may see detrimental effects on human creativity as AI continues to
advance. If autonomous computers were to replace inventions by natural persons,
there could be a decline in human intellect.
Consequently, positions and
businesses involved in high-tech research and design may face elimination. It
is crucial to establish an effective system to ensure that individuals filing patents
are genuinely transparent about AI's role in the creative process. The absence
of human oversight in AI inventions could lead to adverse consequences. It is
imperative to promote transparency and accountability through appropriate
measures.
Existing intellectual property
regulations, such as patent, trademark, and copyright laws, should undergo
revisions to encompass AI-driven advancements, including considerations for AI
ethics, data protection, and security. The IP policy should also address the patentability
of AI technologies. While the belief in AI's creative capabilities is
widespread, additional questions arise, such as whether AI can partake in a
joint apprenticeship with an individual. Furthermore, in cases of IPR
infringement, determining accountability becomes a critical issue.
RESEARCH
QUESTIONS
1.
Is
AI liable for any adverse events impacting intellectual property?
2.
What
legal penalties will be imposed on AI in the event of a violation of the
intellectual property rights of the holder?
3.
How
do humans address AI that operates independently of human intervention, and who
bears responsibility for the actions of AI?
LITERATURE
REVIEW
·
AI
and IPR: The Quest or Plea for Ai as a Legal Subject, Rosa Ballardini.
·This study has explored the need to treat
AI operators as legal entities, placing our investigation within the industry
context of entertainment and the press, and examining its connection to the
legislative framework of intellectual property rights (IPR).[5]
·
The
significance of intellectual property in the intelligence explosion, as
explored by Andrea Moriggi.
This article examines the potential
legal challenges surrounding Intellectual Property within the realm of AI,
underscoring the significance of AI in accelerating the pace and scope of
innovation.[6]
RESEARCH
METHODOLOGY
The study also involves a content
examination of historical records, journals, governmental documents,
conferences, law commission reports, legal publications, reference materials,
scientific papers in both articles and books, electronic journals, magazine
articles, a series of online documentary videos, newspaper articles, national
parliament debates, and more. The inquiry into the patentability of AI is being
conducted from an interdisciplinary standpoint. The research relies on a
combination of primary and secondary data sources.
HOW DOES AI
DEAL WITH IP?
The global copyright sector currently
acknowledges that AI technologies are rooted in software, subject to all the
standard intellectual property issues associated with software development.
Presently, it is indisputable that "programs go beyond mere text—they also
function," and while creative thinking and invention remain fundamentally
human endeavors, computers are increasingly becoming highly skilled in these
activities.
RELATION
between AI and intellectual property (IP).
The impact of extensive
digitalization extends beyond the intellectual property sector. The
identification and assessment of documents represent a crucial aspect where
technology has been progressively reducing the need for human involvement. This
has served as a fruitful testing ground for AI technologies in previous
instances.
Administrative tasks, particularly in
legal firms, patent offices, and at times in legal tribunals, are among the
most time-consuming, challenging, and perilous. Historically, these tasks have
relied on paperwork, laborious searches, and intricate decision-making
processes. A simple input error could potentially jeopardize significant
amounts of money.
In 2017, the world's first online
court heard its first lawsuit, employing face and speech identification to
compile trial recordings digitally and AI to prepare judgments.[7]
Furthermore, it is anticipated that
AI will soon take on the responsibility of autonomously determining legal
cases. This expectation is based on studies indicating that lawsuit forecasting
has achieved a notable level of precision. Notably, computer programmers at UCL
have developed an algorithm that examined 584 instances in English language
statistics, processed the data, and formulated its own legal conclusions.[8]
EXISTING IP
CHALLENGES AND ISSUES
Existing intellectual property (IP)
regulations, including patent and copyright laws, need to be revised to
encompass progress driven by AI, taking into account AI ethics, data
protection, and security. Additionally, the IP policy should address the
question of whether AI technologies are eligible for patent protection. The
widely accepted idea is that AI can generate creative works. Another aspect to
ponder is the concept of shared inventorship—whether AI can jointly hold
authorship with a human.
The rise of AI in technology is
undeniable. It is reasonable for the creator to disclose the utilization of AI
software.[9] In
conventional applications, the separation between innovators and ownership is
clear. The applicant asserts ownership of the innovation. However, the question
of ownership becomes ambiguous when it comes to AI inventions.
AI'S
IMPLICATIONS ON IPRS
The safeguarding of intellectual
property rights (IPR) has gained heightened significance with the advancements
in machine learning and recent technological progress. The tech revolution of
the late twentieth century and the emergence of the internet as a global
communication medium have continuously pressed for adaptations in IPR. In
response to revolutionary technological strides and the need for protective
measures in intellectual property rights, the "World Intellectual Property
Organization (WIPO)" has implemented various treaties. While AI and
machines were once confined to the realm of science fiction, they have now
become a tangible reality that humans must grapple with. According to market
research company IDC, the AI market is expected to surge from $8 billion in
2016 to well over $47 billion by 2020.[10]
The substantial growth of AI is
anticipated, driven by the convergence of extensive data, the ready
availability of processing power, and the deployment of cost-effective
hardware. Despite the individuality of each AI in its implementation, it is
crucial to recognize that the ongoing progress of AI poses several contemporary
challenges in the realm of intellectual property. Indeed, as AIs emulate
aspects of human cognition, they may engage in content production.
Additionally, many AI technologies undergo a training process during which they
develop internal decision-making techniques and principles through practice and
feedback to enhance future actions. Moreover, AI systems are regularly employed
to analyze vast amounts of data, aiming to identify statistical patterns.
PATENT AND
AI
The intersection between patent laws
and AI is expanding in today's technological landscape. As demonstrated in the
preceding section of this document, AI has been extensively utilized to
streamline basic functions and, notably, reduce human involvement. AI-enabled
devices function akin to calculators and other related technologies. However,
the operational dynamics of technology are considerably more intricate.
AI-enabled computers can now engage in tasks that involve independent
significant observations, potentially enabling them to generate novel
creations. While this marks a noteworthy technological advancement, it also
introduces novel and intricate legal challenges, particularly within the domain
of patent legislation.[11]
THE
SIGNIFICANCE OF TRADEMARKS FOR AI FIRMS
Trademarks play a crucial role in
distinguishing a name and brand, differentiating their products and services in
the market. In the realm of AI, the transparency and openness of algorithms
contribute to enhancing the reputation of a brand. Companies selling AI
technology can leverage their brand name, and in addition, trademarks may be
employed to promote highly potent AI systems.
Google DeepMind has successfully
obtained the trademark "AlphaGo," and IBM has pursued the trademark
registration for "Watson." It is essential for companies to exercise
caution to prevent the dilution of the distinctiveness of their trademarks,
especially if the components that constitute them are also employed as
identities in the information system. Additionally, registering trademarks with
buzzwords that are widely recognized and associated with AI could pose greater
challenges compared to registering fictitious and nonsensical terms.
Consequently, the strength of certain trademarks may surpass that of others.
LEGAL
AMBIGUITY
The patent system is in place to
encourage inventors to invest more in technology by guaranteeing that their
innovations will yield a reasonable profit. Ambiguity surrounding the
authenticity and enforceability of a patent can diminish its market value. This
uncertainty can impact the rights holder's ability to generate profit through
licensing or legal actions. It is important to note that patents do not necessarily
safeguard applicants' investments or validate the accuracy of a claim if it
faces challenges. However, they do play a role in expediting investment and
innovation while disseminating information, aligning with the intended
objectives of the patent system.[12]
AI AND
COPYRIGHT
Traditional copyright law does not
recognize works generated by AI; it only protects original creations by
individuals. In the significant Monkey-Selfie copyright case, the United States
Copyright Office asserted that a work must be created by a human being to be
eligible for protection under copyright law. This ruling has raised
uncertainties about the copyrightability of creations generated by AI.
Conversely, the legislation in the
U.K is quite different. A clause in the UK Copyright Act states that when a
creation is -made, the author is presumed to have been the individual who aided
the work's creation. Similarly, we might presume that perhaps the creator of
AI-generated work is the one who established the essential arrangements[13]
INTERNATIONAL
INSIGHTS
Globally, the volume of intellectual
property is on the rise. According to the World Intellectual Property
Organization, patent submissions witnessed a 7.8% increase between 2014 and
2015. This upward trend in filings has persisted for almost two decades,
leading to the expansion of intellectual property tools and information. With
such a vast amount of information, extracting valuable data has become
increasingly challenging. Traditionally, searches were conducted manually,
relying solely on static search engines for assistance.
AI and Machine Learning (ML) have the
capability not only to streamline the examination of extensive databases but
also to store and leverage previously acquired data to improve the accuracy of
future analyses. Additionally, AI can be deployed to gain insights into
specific geographic or sectoral industries.
THE UNITED
STATES OF AMERICA (USA)
AI advancements can be broadly
categorized into two groups. The initial category comprises new and enhanced AI
technologies, while the second involves established AI approaches. To qualify
for a patent, an AI application or system must be innovative, non-obvious, and
not derived from an abstract concept. A patent is attainable for an AI
application or program that automates a task traditionally performed by humans
through a distinctive and innovative process.
CHINA
China aims to emerge as the dominant
force in global AI leadership by the year 2030. The prevalence of patents
containing terms such as "AI" or "deep learning" has
notably risen in China compared to other nations. China has surpassed the
United States in the realms of finance, research, and innovation. For AI
software to be eligible for patenting, it should be articulated through claims
in the format of "medium plus computer program method" and equipment
assertions, outlining components executed through a computer algorithm.
INDIA
India's patent laws are governed by
the Patents Act of 1970, guiding the Indian Patent Office and the legal system
in determining the patentability of a product or technique. The criteria for
patentable subject matter include absolute novelty, an original idea, and
industrial applicability. The assessment of the patentability of software
advancements in India is influenced by Section 3(k) of the Patents Act, 1970,
and the Guidelines for Examination of Computer-Related Inventions (CRIs)
provided by the Office of the Controller General of Patents, Designs, and
Trademarks. According to Section 3(k), a software program itself is not patentable.
However, software inventions can be deemed patentable if they satisfy specific
criteria.
·
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, the invention gives a technological remedy to a technical
issue.
·
THE NEW
DIMENSIONS OF 'INVENTION' AND 'INVENTOR'
Several criteria play a role in
determining the approval or rejection of a patent. However, specific conditions
must be satisfied to be recognized as an inventor. In the case of Townsend v.
Smith in the United States, it was necessary for something to be conceived
before it could be deemed a legally valid outcome of a discovery. The entire
process of 'creation' must be undergone, meaning a definite idea must have been
envisioned in the creator's mind before its actual implementation. Anything
produced without prior contemplation cannot be deemed an invention, and the
individual responsible for the creation would not be considered an innovators.[14]
There is a proposition that such
forms of imaginative thinking can originate exclusively within conscious
imagination with ideation notions. The removal of the "spark of
enlightenment" requirement for patentability stands out as one of the most
compelling reasons for incorporating AI in the classification of an
"inventor." While the previous test acknowledged the need for
conception to recognize something as an innovation, the U.S. Congress rejected
this requirement, asserting that when an invention contributes to the
advancement of scientific knowledge it operates on, the process by which it
originated in the inventor's mind becomes irrelevant. Many AI algorithms,
including AlphaGo, Watson, and others, execute operations such as providing
solutions based on vast amounts of data, making such integration into the
patent system a natural progression[15].
The primary purpose of patents is to
protect the inventor and uphold their commitment to a creation they may not
wish everyone to use without due consideration. Detractors of extending patent
protection to AI contend that computers lack this capacity, hindering
individuals from forming clear intentions about how their invention might be
utilized. This, in turn, undermines the fundamental objective of intellectual
property rights.
CONCLUSION
The impact of patentability on the
development of AI, the industry, and society is poised to be significant. With
the swift progress of AI technology, it becomes crucial for key stakeholders,
including patent experts and academics, to engage in dialogues aimed at
determining how the patent system can effectively nurture innovation.
Additionally, it is essential to implement adequate measures to prevent adverse
social and moral consequences.
An in-depth examination of the
current criteria for patent-eligible subjects is imperative to ascertain
whether it could adversely affect AI or AI-driven innovations. If such negative
impacts are identified, stakeholders must collaborate to identify regulatory
changes that can align with the primary objectives of patent law.
The existing liability regulations
lack provisions for situations where an AI independently causes a patent
infringement. It is imperative to clearly outline the party held responsible
and establish criteria for assessing accountability in such scenarios. These
challenges require careful consideration. A fundamental objective of patents is
to stimulate innovation, science, and technology. Given the swift evolution of
AI, patent laws should possess adaptability and strive to achieve economic and
societal benefits in the context of AI.
The outdated nature of existing
global intellectual property (IP) legislation is proving inadequate in
addressing the current landscape, diminishing the motivation for innovators and
creators to safeguard their intellectual property rights. The consequences of
this gap are extensive and could potentially impede the progress of
contemporary society, affecting industries and overall social structure. To
harness the benefits of this new era, navigating this uncharted territory is
essential, necessitating an adjustment of the legislative framework to address
the intricate issues surrounding ownership and patent protection in the digital
age. Such adaptations need to be ongoing to keep pace with the evolving
landscape.
[1] Jamal bin Subaih Al-Hamlan
Al-Sharari, The Impact of Artificial Intelligence on the Quality of
Administrative Decision from the Point of View ofSecondary School Leaders in
Al-Jouf Educational Region, Volume 8, Part 1, Solouk Magazine, Ibn Badis
University Mostaganem, Algeria, 2021,
[2] Ballardini, R. (2021). Artificial
Intelligence and IPR: The Quest or Plea for Ai as a Legal Subject. Ballardini
RM & van den Hoven van Genderen R.,“Artificial Intelligence and IPR: the
quest or plea for AI as legal subject”, in Pihlajarinne T.(eds), Alen-Savikko A.(eds)
and Havu K.(eds), AI and the Media-Reconsidering Rights and Responsibilities,
Edward Elga
[3] Prof.
A.Lakshminath&Dr.MukundSarda, Digital Revolution and Artificial
Intelligence- Challenges to Legal Education and Legal Research,
[4] Ibid 1
[5]
Ballardini, R. (2021). Artificial Intelligence and IPR: The Quest or
Plea for Ai as a Legal Subject. Ballardini RM & van den Hoven van Genderen
R.,“Artificial Intelligence and IPR: the quest or plea for AI as legal
subject”, in Pihlajarinne T.(eds), Alen-Savikko A.(eds) and Havu K.(eds), AI
and the Media-Reconsidering Rights and Responsibilities, Edward Elgar
[6] The role of intellectual property
in the intelligence explosion, Andrea Moriggi, 2017,
https://www.4ipcouncil.com/application/files/9615/1638/1031/The_Role_of_Intellectual_Property_in_the_Intelligence_Explosion.pdf,
last accessed on 7 May 2022
[7] Changqing Shi, Tania Sourdin and
Bin Li, ‘The Smart Court – A New Pathway to Justice in China?’ (2021) 12(1)
International Journal for CourtAdministration 4. DOI: https://doi.org/10.36745/ijca
[8] See C. JOHNSTON, Artificial
Intelligence ‘judge’ developed by University College London computer
scientists, availableat: https://is.gd/article_law_UCL_AI_judge
[9]
Ibid.
[10] Intellectual Property Rights in an
Age of Electronics and Information, U.S. OFFICE OF TECHNOLOGICAL ASSESSMENT
(1986), https://www.princeton.edu/ ~ota/disk2/1986/8610/8610.pdf, last accessed
on 7 May 2022.
[11] Rashmi, R., & Sneha, S.
(2017). Artificial Intelligence: IPR, Liability and Ethical Issues. Int'l.
In-House Counsel.
[12]
Rashmi, R., & Sneha, S. (2017). Artificial Intelligence: IPR,
Liability and Ethical Issues. Int'l. In-House Counsel J., 11, 1
[13]
Artificial Intelligence Poses a Greater Risk to IP than Humans to,
TECHCRUNCH(Dec. 31, 2015), https:// techcrunch.com/ 2015/
12/31/artificialintelligence-poses-a-greater-risk-to-ip-than-humans-do/.
[14] Prof.
A.Lakshminath&Dr.MukundSarda, Digital Revolution and Artificial
Intelligence- Challenges to Legal Education and Legal Research,CNLU LJ (2)
(2011-2012)
[15] Tripathi, S., & Ghatak, C.
(2018). Artificial intelligence and intellectual property law. Christ
University Law Journal, 7(1), 83-98.
Article Information
EXAMINING INTELLECTUAL PROPERTY RIGHTS IN THE AGE OF ARTIFICIAL INTELLIGENCE: AN ANALYSIS OF CHALLENGES IN INDIA AND A GLOBAL OUTLOOK
Authors: RAJ BORELE
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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