By Vishruti Chauhan & Pratyusha Ganesh, Symbiosis Law School, Hyderabad.
The term Artificial Intelligence was coined by John McCarthy at a conference in 1956.[1] The term was used for the ability of the computers to take decision by itself without human interference with the use of algorithms and commands.[2]
It was thought by early thinkers that a time will come when the machines will fail human intellect. The invention of computers had strengthened this view and today there are actual machines and robots learning to make out the best of the human learning. Sophia– A humanoid robot was granted citizenship by Saudi Arabia in 2017.[3]
AI became sensational when it was first started and within years, it has become one of the most promising technology. The machine learning process includes analysis of data, identifying patterns of user’s preference and applying it to get optimum result in the market. The high demand of manipulating and organizing large amount of data, calls for the usefulness of AI. It improves the use of already existing application to be used at an optimum level.
IPR is an important tool to protect innovation and provide economic benefit for the intellectual work and AI has turned out to be a new dimension. WIPO recognizes three categories of AI- Expert Systems, which solve problems in specific field of knowledge such as medical conditions, Perception Systems, that allow the technology to perceive world with sense of hearing and sight and Natural language Systems, that requires a dictionary database to learn the meaning of the words.[4]Trademark, Copyright and Patent laws exclusively need to be examined in light of the developing and rapid use of AI.
Currently, there is no particular law (in India as well as abroad) that answers the big question, “Who possesses the IP rights for a substance made by their invention?” The present law only regards humans as creators and hence, as IPR holders and infringers. This raises the issues of analyzing the status of use of these AIs in the future. It has also raised a lot of obligations with respect to the work created by AI’s.
Looking back, the past 3 decades have been significant for AI, the U.S. forces deployed DART in 1991 at the time of the Gulf War. It was an automated logistics planning and scheduling tool. In 2005, STANLEY, a self-driving car, won the DARPA Grand Challenge. In 2017, Sophia, a humanoid robot, became a citizen of Saudi Arabia. This raised the questions of AI machines having the same rights as that of humans. A ruling from the San Francisco court in the case of Naruto v. Slater[5], popularly called “The Monkey Selfie Case”, denied copyright requests for a selfie taking macaque monkey and also represented the stand towards AI. This case gave rise to more questions than answers.
INTELLECTUAL PROPERTY RIGHTS RELATED TO ARTIFICIAL INTELLIGENCE IN INDIA
- COPYRIGHTS
Copyright is possessed by the creator of literary/ artistic or musical work which allows the creator the exclusive rights to the sale/ use/ distribution of the work.
In the case of Burrow Gilles Lithographic Co. v. Sarony[6], the issue was whether a copyright protection can be granted to a photograph as there was a conflict between creative and mechanical labor. The court held that copyright protection can be granted to a product which was the output of a machine, which in turn, is the output of human creation. It also narrowed their scope of protection by stating that mechanical labor cannot be held to be creative.[7] Therefore, if a strict approach like this were to be applied to AI systems, granting copyright for works created by them, would be difficult.
Even if countries agreed to granting copyrights to the works of an AI, the question of who gets that copyright remains cryptic and abstract. This is because the current status of law requires a legal personhood of a right holder, something which an AI lacks, unless its creator is granted that on its behalf.[8]
- PATENTS
In today’s times, AI enabled systems are creating and inventing new outputs, which is beyond the knowledge and understanding of its inventor itself, and this is considered a huge development but it also leads to ambiguities from the perspective of patent law. A patent is the exclusive right granted to the inventor for his invention (product/process) if the invention is novel, non-obvious and useful.[9] Granting of a patent to the patent holder, excludes others from making, selling, distributing the invention without the grant of licenses from the patent holder.
AI is booming to an extent that AI invented machines are producing results which could qualify as patentable inventions.[10]
- TRADEMARK
Trademark law strives to eliminate any confusion with respect to logo, appearance or packaging or any other marks which identifies a particular brand or company so that there is no confusion among the consumers. It is difficult to analyze how AI can infringe trademark and issues like in case of patent and copyright can arise.
There have been instances where the question of infringement of trademark with respect to AI arose.
In the case of Louis Vuitton v. Google France[11], there was an issue of keyword advertising and the automated choices which are made through Google and it was alleged to be infringing the trademark of the petitioner. However, the court held that there is no infringement unless the party itself took an active part in it.
With the increasing use of AI in retail and business models as well as security and payment methods, this situation can get much worse. The case can deteriorate more if there are AI based consumers. AI is based on algorithms and uses the data by identification of prior choice. If an AI becomes a consumer there is a huge chance of confusion in respect with trademark and this situation can lead to a rigorous amount of litigation.[12]
There are no particular laws in any country with this respect and it is the need of the hour that certain regulations are made to avoid any such confusion in coming years.
In United Kingdom
The IP rights of a creator i.e., the person who makes/ creates a substance are characterized under the Copyright Designs and Patents Act, 1988 (the CDPA). When an AI or a machine creates a substance, the IP rights under the CDPA are held by the creator of the machine, provided that the person is in direct control of the working of the machine with AI.
In situations where the substance is produced by AI and there is no human creator, the IP rights will be held by the person making the game plans by which the work (AI) is produced. Hence, under the UK law, AI is not viewed as a creator.
In United States of America
The Copyright Act in USA protects original expression and not the ideas behind those expressions.[13] In case of protection of AI data, there is no particular provision that has been provided but the Act states that for a copyright requires ‘an original work of authorship’. The author has been interpreted through the US courts as a person or human being and thus, while using AI, for any copyright protection, there should be human contribution in creative process. The AI being used is regarded as a tool for the process of copyright.
In Japan
Japan has been very advanced in regulating the AI with IPR. It had formulated the ‘AI Strategy 2019 AI for Everyone- People, Industries, Regions and Governments (2019)’ which focused on identification of problems and examination in future. It also made changes in its Copyright Act by amending Article 30-4, 47-4 and 47-5 which introduced the flexible limitation provisions for technologies like IoT and AI.[14] Furthermore, the database is also protected through Article 12-2 (1) of the Copyright Act and it states that even if the whole database is protected, the rights of author of a work that forms a part of that database will not be affected.[15] However, there are still ambiguities with respect to ownership of data and the issues relating to patent still needs to be addressed.
If AI owns IP: Critical Analysis
In a situation where the AI is the IP right holder of an invention or a creation, questions arise relating to the aspect of infringement.
Firstly, if AI is given the same position as an individual for creating or inventing a work, then it should also be made to enter the field of infringement and enforcement. An AI software should be sued for infringement and should be able to enter into legal contracts on its own which does not seem possible moreover, appropriate. This proves the fact that AI cannot be a legal entity.
Secondly, the question of accountability arises when an AI infringes the right of a 3rd party. Especially in the cases of copyright, if an AI copies the work of an author, given that it is easier as all the works are available on the internet, the hurdle of showing that the infringer had access to the protected work might be much easier to overcome.
Thirdly, there is an issue of transparency of AI systems with respect to holding of IP rights by them. If a situation arises where AI systems are protected under trade secrets, this could be an obstacle to the transparency of the AI systems. As times are progressing, there is more need and importance of transparency and responsibility for the process of decision-making.
Hence, the question of the hour is, “how to deal with transparency in cases where a machine learning process involves multiple data sources, dynamic development, and elements that are opaque, whether for technological or legal reasons?”[16]
SUGGESTIONS
There is a desperate need, now more than ever, to formulate IP laws which can secure the developments of AI innovation and reward new works and inventions through the copyright or patent award.
- A specific test has to be formulated which can differentiate between AI created works and AI- aided works. The accurate IP holder can be determined, thereon.
- The patent law clearly demarcates between an inventor and an invention but the category under which AI systems fall is not yet determined. The law has to be clearer and more specific and include such provisions in an understandable language.
- Similarly, the definition of authorship under the copyright act should be examined and changes according to the changing dynamics.
- There have been ambiguities in trademark laws as well. The status of AI as a customer and the functioning of AI, especially in case where human common sense plays a major role need to be defined.
- WIPO has already taken cognizance of the upcoming issues with AI and the same has been discussed through various means, however, proper policy should be formulated in an International level.[17]
- A specific act has to be passed which deals with data protection with respect to the AI software. It must cover all the civil and criminal liabilities and offences which amount to the same.
- IP sharing between the inventor of the AI and the AI itself can be a possibility in the years to come. It will become an essential part of the general advancement plan and maintainability. The future is loaded with indefinite possibilities and interesting motoring.
CONCLUSION
Artificial Intelligence has become an integral part of human lives. With the use of AI, data can be modified or collected in a much better and time efficient manner. The usage has boomed with the use of new technological tools. Therefore, it becomes an urgent need to make proper laws concerning the same. With technological approach there are many factors which are being introduced under its ambit. AI being one of them should also be looked into. The present situation of AI and IPR is challenging. The implementation of IPR in AI with procedure and safety logs at hand is a real problem. There is also an issue of understanding the different features of AI, which becomes a more rigid problem in developing countries like India, which are still going through the rigorous changes in technology. Presently, it is through the interpretation of the courts that the issues revolving around AI and IPR are being addressed. But there is a need for structured, analyzed and clear rules and regulations. Amendments should be made in existing IPR laws to address the issue of AI as well. With the use of AI, there can be more benefit for future inventions. India has been potentially looking forward for ways to do.
[1] Prof. A. lakshminath& Dr. Mukund Sarda, Digital Revolution and Artificial Intelligence- Challenges to Legal Education and Legal Research, CNLU LJ (2) (2011-2012).
[2] id.
[3] Emily Reynolds, The Agony of Sophia, the world’s first robot citizen condemned to a lifeless career in Marketing, Wired, (September 27, 2020, 6:34 PM), www.wired.co.uk/article/sophia-robot-citizen-women-rights-detriot-become-human-hanson-robotics.
[4] Swapnil Tripathi & Chandni Ghatak, Artificial Intelligence and Intellectual Property law, Christ University law Journal, 7, (2018), www.doi.org/10.12728/culj.12.5.
[5]Naruto v. Slater, No. 15-cv-4324 (Northern District Court of California); Naruto v. Slater, No. 16-15469 (9 th Cir. 2018).
[6] Burrow Gilles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).
[7] Kop, Mauritz, AI & Intellectual Property: Towards an Articulated Public Domain, 28, Texas Intellectual Property Law Journal (TIPLJ), (2019).
[8]James Boyle, Endowed by their Creator? The Future of Constitutional Personhood, 70 N.C. L. REV. 1231 (1992).
[9]Patents, WORLD INTELLECTUAL PROPERTY ORGANIZATION, (September 30, 2020, 9:13 PM),
[10]Liza Vertinsky& Todd M. Rice, Thinking about Thinking Machines: Implications for Machine Inventors For Patent Law, B. U. J SCI. &TECH L. 82 (2002).
[11] Louis Vuitton v. Google France, March 23, 2010, http://curia.europa.eu/juris/document/document.jsf;jsessionid=27F229E46C0145148432CADC80E5CD3A?text=&docid=83961&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=665101.
[12] Lee Curtis & Rachel Platts, AI is coming and it will change trade mark law, Trade Mark Artificial Intelligence, (September 30, 2020, 7:33 PM), https://www.hgf.com/media/1173564/09-13-AI.PDF.
[13] Richard M. Assmus & Brad Peterson, United States- Intellectual Property Rights in AI Data, Mondaq, (October 2, 2020, 3:45 PM) https://www.mondaq.com/unitedstates/trade-secrets/866470/intellectual-property-rights-in-ai-data.
[14] PDF, Japan- WIPO, (September 27, 2020, 4:30 PM), www.wipo.int.
[15] id.
[16]R. Wexler, Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System, 70 Stan. L. Rev. pp. 1343, 1373–74 (2018)
[17] Artificial Intelligence & Intellectual Property Policy, WIPO, (October 4, 4:40 PM), www.wipo.int/about-ip/en/artificial_intelligence/policy.html.
