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Introduction
We have come a long way since 1955 when John McCarthy, winner of
the Turing Prize in 1971 defined Artificial Intelligence (AI) as
“Making a machine behaves in ways that would be called
intelligent if human were so behaving”. It is only
recently that AI technology has undergone a rapid progress and has
become one of the hottest trends of the present world. The impact
of AI on our day to day lives is intensively being deliberated upon
in almost every corner of the world. It has garnered much needed
attention not only from the business sector and academia but also
from the policy makers and judiciary.
AI questions the most conventional Intellectual Property legal
principles, such as “author”, “creator”,
“originality”, or “inventiveness”. Can a
machine be an author or an inventor? Should AI generated inventions
be considered state of art? Who is the owner of AI generated works
or inventions? Who should be held responsible for the creations and
innovations generated by AI, if they encroach upon others’
rights or violate other legal provisions? With the increasing
prevalence, and increasing capability of AI these are some of the
Intellectual Property Law issues that the legal fraternity has to
resolve.
This article proposes to address such issues and endeavors to
provide suggestions so as to attune the law with the present
developments.
AI and Copyright
Traditional Copyright law does not recognize AI generated works.
It only protects the original creations of a human being. In a
famous Monkey-Selfie copyright dispute, U.S.
Copyright Office clarified that to fall within the protective
shield of copyright law a work must be created by a human being.
1 This decision gave rise to challenges for the
copyrightability of AI-generated works.
However, in United Kingdom the law is rather different. In UK
Copyright Act, there is a provision which stipulates that if a work
is computer-generated then the author is taken to be the person who
facilitated the work to be created.
2 On similar terms we can assume that the
author of AI generated work would be one who made the arrangement
necessary for the creation of work.
With regard to Indian legal standards, Section 2 (d) of the
Copyright Act, 1957, defines “author” “in relation
to any literary, dramatic, musical or artistic work which is
computer-generated, the person who causes the work to be
created;”
3
The complexity arises where AI becomes more advanced and fully
autonomous and when it has the liberty to make its own decisions,
it may become even more complicated to say with certainty by whom
the arrangement necessary for the creation of work undertaken. As
per current scenario only the human-authors of creative works may
enjoy copyright protection. However, some scholars have advocated
the idea of granting copyright to non-human authors. They argue
that the realm of word “authorship” should be widened to
incorporate both human and non-human authors.
4 The authorship of a work created by AI is
still contentious. It is doubtless to say that to kickstart any AI
based work human intervention is necessary but to determine the
author/owner in a scenario where AI plays a leading role in
completing the work is still under clouds.
AI and Patents
AI has the potential to challenge the core legal principles that
are edifice of Patent law. Whether AI generated invention should be
given protection under patent law, and if so, who should be
considered as the inventor for such AI created inventions are the
most fundamental questions that need to be addressed urgently. Some
scholars are of the view that granting patent rights to
AI-generated inventions would act as a catalyst for new and
advanced innovations which would be difficult to achieve through
human inventiveness solely. Others argue that granting patent
protection to AI-generated inventions will raise the cost of
research and development, increase the monopolies, thereby impeding
innovation.
Another problem is with regard to setting the yardstick for
ascertaining whether an AI generated invention is non-obvious.
Determining the non-obviousness of an AI created invention is a
practice full of uncertainty and complexity particularly for super
intelligent AI that is capable of improving itself. As AI is
permeating almost every sector and industries, deliberations on
whether the present definition of a POSA (person ordinary skilled
in art) is adequate for AI era or it should be redefined so as to
include within its folds a person equipped with AI, assume much
significance.
5
Another, indeterminacy in a patent law relates to the liability
of AI in cases where AI is the infringer of patent rights. With the
changing landscape of the technological developments, most AIs are
now capable of infringing other patent claims. The liability issue
raises the question of who should be held accountable for the
actions of AI, whether the AI itself or the developer of AI and how
the liability of AI will be assessed.
The patent related issues for AI created inventions must be
decided in the background of whether the patent rights to
AI-generated inventions would further the objective of patent law
or whether it would prove detrimental for the human conceived
inventions.
Conclusion
On a concluding note, it is proposed that it is important to
revisit the Intellectual Property Laws to bring them in conformity
with the present technological developments which are defining the
future of this world. Assigning authorship and inventorship to
non-humans is a novel way to promote the growth and development of
AI, which will boost the appetite of this world for more invention.
However, instead of going for the complete overhaul of the rules
and guidelines currently set in place, it would be feasible for the
regulators to modify and restructure the present laws in order to
avoid complex and lengthy process and to prevent the law from
getting static.
The regulators have a big responsibility of creating a
harmonious approach between the protection of rights of citizens /
individuals and the need to encourage technological growth, while
deciding upon the AI generated Intellectual Property issues.
Granting authorship to AI could preclude works solely generated
by AI from falling into the public domain and offer the developer
of AI some monopoly to the resulting works. The patent laws
considering AI can have profound impacts on innovation, the society
and economy which make it imperative for the people associated with
Intellectual Property to find ways for the patent system to
encourage innovation while minimizing any adverse consequences.
This revisitation to IPR laws would allow the present IP system to
continue promoting “the progress of science and useful
arts” without any impediments.
Footnotes
1 Naruto v Slater
(PETA) 15-cv-4324.
2 Copyright Designs and Patents Act 1988 (CDPA 1988) s
9(3).
3 Copyright Act 1957 s 2(d) (iv).
4 Ryan Abbott, ‘I Think, Therefore I Invent: Creative
Computers and the Future of Patent Law’ (2016) 57 B.C. L. REV.
1079; Colin R. Davis, ‘An Evolutionary Step in Intellectual
Property Rights— Artificial Intelligence and Intellectual
Property’ (2011) 27 COMPUTER L. & SECURITY REV.
601.
5 Artificial Intelligence Collides with Patent Law, WORLD
ECONOMIC FORUM
http://www3.weforum.org/docs/WEF_48540_WP_End_of_Innovation_Protecting_Patent_Law.pdf.
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