Intellectual Property Rights (IPRs) law:
Intellectual Property Rights (IPRs) law is a law that protects the proprietary
rights of the inventors or creators with respect to their intellectual property
for a limited period of time. The main purpose of this law is to encourage
inventors or creators to produce more and more intellectual goods. It protects
their proprietary rights by prohibiting the creation, use, selling, or importing
of the patented product or process without the consent of the patent owner and
thus gives them an incentive to produce more. If this proprietary right is not
protected it will make them less interested in producing different intellectual
properties. These proprietary rights give them economic incentives and encourage
more innovation which in turn contributes to the country's economic progress.
This law was first developed in the 17th and 18th centuries in England. The term
"intellectual property" began to be used in the 19th century, though it was not
until the late 20th century that intellectual property became commonplace in the
majority of the world's legal systems.
Intellectual Property Rights (IPRs) can be simply defined as the legal rights
that protect creations and/or inventions for a limited period of time, resulting
from intellectual activity in the industrial, scientific, literary, or artistic
fields. There are many types of intellectual property and they vary from country
to country. Some countries recognize very few kinds of IPRs and some countries
recognize more than others. However, there are some common IPRs that are
recognized by all countries like patents, copyrights, and trademarks.
A patent is a form of right granted by the government to an inventor or their
successor-in-title, giving the owner the right to exclude others from making,
using, selling, offering to sell, and importing an invention for a limited
period of time, in exchange for the public disclosure of the invention. This
invention may be a product, process, or solution to a particular industrial
There are three basic requirements that an inventor has to prove in
order to get his invention patented:
it must be novel that is it must new, not known before an inventor
files an application for the invention. It must not be known anywhere in the
world. If an inventor has published it or made it known before filing an
application for invention, it would not be considered new and would not be
eligible for being patented.
- Inventive step:
By inventive step, it means that one must be innovative. The
invention must significantly differ from what is already known. It must not be a
minor change or development which cannot be considered something different and
innovative. A combination of two or more known processes or products cannot be
granted a patent even if it is different. It also must not be a common thing
that any skilled person in that field can do.
- Industrial applicability:
An inventor in order to get his invention patented
must prove that his invention has industrial applicability. Indus[i]trial
applicability means that it must be able to be utilized in any industry. However
"industry" here is given a very broad meaning and is not confined to the
traditional meaning of industry. Here activities like transport, agriculture,
hunting, public services, and medical services are also considered as the
industry. So an invention that is not useful in any industry cannot be patented.
Copyright is a type of intellectual property that gives its owner the exclusive
right to make copies of creative work for a limited time. The creative work may
be in a literary, artistic, educational, or musical form. It can be granted to
the author or owner of intellectual property and contains two types of rights,
economic rights, and moral rights. Economic right of it involves the exclusive
right of monetary benefits from the reproduction of intellectual property and
moral rights involve the right to claim authorship and the right to restraint
making changes in the work. It may be noted economic right of copyright
extinguishes after a limited period of time but moral rights never extinguish
and they can be claimed by the legal heirs of the owner of the copyright even
after his death. The term of copyright varies from country to country like in
India it is granted for the lifetime of the author or owner and 60 years after
his death, but in the US it is granted for the lifetime of the author or owner
and 70 years after his death.
There are two basic requirements needed for
- It must be original: originality means that the work should be new.
It must be creative work. However, the standard of creativity or newness
must be minimal and need not be the standard of "no obviousness" which
is required in granting patents. As long as it shows slight creativity
and as long as it is not more of a copy of earlier work, copyright can
- It must be fixed: to obtain copyright, the work must be fixed in a
tangible medium of expression, that is, it must be descriptive and
physical. It does not have to be the final or thought-out version of the
work, such as the draft of a novel on paper or the flash memory of a
Recently an issue has arisen that whether an Artificial Intelligence (AI) can be
granted a patent or copyright for its invention or creation. Advocates of it who
favor granting of patents and copyrights to AI claim that just like in the case
of human beings whose inventions or creations are protected by patents or
copyrights, there is no reason why inventions or creations of AI cannot be
protected. They claim that it is unjustified to refuse to grant a patent or
copyright to AI if its work fulfills all the requirements or prerequisites
needed for granting a patent or copyright.
Artificial Intelligence (AI):
Artificial intelligence (AI) is a branch of computer science concerned with
building smart machines capable of performing tasks that typically require human
intelligence. John McCarthy defines Artificial Intelligence as, "It is the
science and engineering of making intelligent machines, especially intelligent
computer programs. It is related to the similar task of using computers to
understand human intelligence, but AI does not have to confine itself to methods
that are biologically observable". In its simplest form, artificial intelligence
is a field, which combines computer science and robust dataset, to enable
problem-solving. Some examples of AI are Siri, Alexa and other smart assistants,
Self-driving cars, Robot-advisors, Conversational bots, etc. Machines equipped
with artificial intelligence have already done a lot of creative things like
making visual art, writing poetry, composing music, etc. Google's AI was even
able to create its own AI "child"—that outperformed its human-made counterparts.
So the issue arises that whether Artificial Intelligence can be granted patents
and copyrights for their inventions or creations.
Can artificial intelligence (AI) receive a patent?
This issue aroused mainly when
"Dr. Stephen Thaler", the architect of the
artificial intelligence system known as DABUS an acronym for "Device for the
Autonomous Bootstrapping of Unified Sentience" applied for the patent of two
inventions in the name of an AI system known as DABUS. Stephen applied for a
patent in many countries, some have granted it and some have rejected it. In
some jurisdictions, the appeal is pending in higher courts. It must be noted
that Stephen lists himself as an Assignee to the said patent applications and
would hold the rights to the patent applications if the patent application meets
the requirements of the respective Patent Office. Some countries like South
Africa and Australia have allowed the application and have registered the
patents in the name of DABUS. Some countries have rejected the application and
in some countries like the United States and the United Kingdom appeals are
pending following initial rejections. So it could be said that DABUS is the
first Artificial Intelligence system to be registered as an inventor and owner
of a patent in some countries of the world.
In July 2021 South Africa became the first country in the world to grant a
patent in the name of the AI system DABUS. Professor Adrian Hilton, director of
the Institute for People-Centered AI at the University of Surrey, hailed this
decision as an indication of the transition from a time when creativity was a
human-only activity to a time where machines can realize the innovative process,
unleashing the potential of AI-generated inventions for societal benefit.
Just after a few days of granting a patent by South Africa, Australia became the
second country in the world to recognize the AI system DABUS as an inventor. On
July 30, 2021, the Federal Court of Australia, in "Stephen Thaler v.
Commissioner of Patents"[ii] ruled in favor of Stephen and allowed DABUS to be
granted a patent and listed as an inventor. In this case, the court held that
there is nothing in the act that can exclude the AI system from being an
inventor. It held that the term "inventor" in the act is an "agent noun" and it
can be any person or thing and accordingly if the AI system invents it is an
inventor in the act.
Responding to the commissioner's argument that how can AI
exercise its rights it held:
"First, that position confuses the question of
ownership and control of a patentable invention including who can be a patentee,
on the one hand, and on the other hand with the question of who can be an
inventor? Only a human or other legal person can be an owner, controller, or
patentee. That of course includes an inventor who is a human. But it is a
fallacy to argue from this that an inventor can only be a human. An inventor may
be an artificial intelligence system, but in such a circumstance could not be
the owner, controller, or patentee of the patentable invention". So according to
this judgment, an AI system can be an inventor but cannot be an owner or
controller of the patent.
This judgment established an important milestone in recognizing the AI system as
an inventor. However, there are some countries that have refused to grant this
recognition. European Union is one of them. The "European Patent Office (EPO)",
justifying its decision to reject the patent application said that the purpose
of the IPR law is to preserve the economic and moral rights of the inventor. In
order to be entitled to a patent an inventor must have actually performed the
creative act of invention. It said that even though AI systems are able to do
much more complex things, what they are doing is nothing more than just
following the instructions for which they are programmed by the human beings who
created them. It further said even though they do a lot of complex functions
which is impossible for a human being to do but they still lack "an autonomous
will, self-awareness, and personality in the way that humans have them." It said
that "the legal norms regulating the designation of an inventor will only serve
the meaningful function they were designed to perform when they are applied to
human economic processes and society."
Besides European Union, the United Kingdom and the United States also rejected
granting patents in the name of DOBUS. Their grounds for rejection are more or
less the same as European Union. In 2021, U.S. District Judge "Leonie Brinkema"
in "Alexandria" while rejecting granting of a patent to an AI system held that
when artificial intelligence reaches a certain degree of sophistication in
technology, it might be able to satisfy current definitions of the invention.
But that time has not yet come, and if it does, Congress will have to determine
whether or not to broaden the application of patent law. However, in both
countries appeal has been made to the higher courts and nothing can be said
about their outcome. Even in Australia, it was initially rejected but later on,
the Federal Court of Australia allowed it.
In India, whether an AI system can be granted has not been yet decided but it
may be noted that there are good chances that it may be granted. The definition
of "inventor", in Indian patent law is wider in scope than us patent law, also
Indian patent law recognizes non-person entities such as government
organizations as patentees for an invention, thus there are chances that the AI
system may be recognized as an inventor. But at the same time, it must be
mentioned that section 3(k) of "The Indian patent act" prohibits granting of
patents on computer programs per se or algorithms. However, the guidelines
provided under it mention that if the computer program or algorithm shows
technical advancement then a patent can be granted. This has been reaffirmed by
Delhi high court in 2019 in the case of "Ferid Allani v. Union of India"[iii].
From the perusal of these sections, it could be said that there are chances that
India may recognize the AI system as the inventor in near future.
Can Artificial Intelligence (AI) receive the copyright?
As mentioned above that there are two prerequisites that must be adhered to
before copyright can be granted and these are originality and fixed in some
tangible form. The requirement of 'originality' which is a must for granting of
copyright is linked to the concept of 'intellectual creation' of a natural
person and that is why only natural persons are protected as authors under the
copyright laws of the world. Section 2(d) of the copyright act 1957 says that "author" means
"in relation to any literary, dramatic, musical or artistic work
which is computer-generated, the person who causes the work to be created".
These laws were enacted when computers acted just as a tool just like a pen and
paper in the hands of the author and computer-generated works were more or fewer
products of that author. So the person who caused the computer-generated work to
be created was considered the author and owner of the copyright of that work.
Existing intellectual property frameworks across jurisdictions were not created
with AI in mind. While there is no legal framework strictly governing AI in any
jurisdiction, presently legal provisions which govern copyright issues of
computer-generated works are applied to AI-created works as well.
Many countries of the world claim that Artificial Intelligence as it exists
today is still dependent on some amount of human input. So at this stage, it
cannot be said that AI-created works are wholly the original works of AI and
there is no role of human input. Therefore, presently attributing authorship of
AI-created work to the creator or owner of the AI system seems most feasible.
The main purpose of intellectual property law is to protect the interests of the
creator and reward him with certain rights in order to boost his motivation to
create more new things. This is consistent with the objective of intellectual
property law to attribute authorship to the owner of the AI system or the
creator of the program and to grant copyright in his name. Presently this is the
stand taken by most countries of the world whether including the European Union,
the United Kingdom, and the United States of America.
The United States Copyright Office officially declared that:
"The U.S. Copyright
Office will register an original work of authorship, provided that the work was
created by a human being"[iv].
In October 2020, the European Parliament published a report related to IPR
issues for the development of artificial intelligence technologies. It
highlights that the requirement of "originality" which is essentially linked to
the concept of the intellectual creation of a human being is missing in the
AI-created works and so are not eligible for copyright protection under EU law.
However, it recognized the need for protection of AI-created works in order to
encourage creators and suggested that the natural person who has put inputs in
such creation may be vested with the copyright thereof.
With every passing day, artificial intelligence is becoming more and more
sophisticated and capable of creating original content with minimal human
interference. In 2016, in the Netherlands, a portrait titled "The Next
Rembrandt" was unveiled which was an AI-generated artwork that analyzed the
artworks of 17th-century Dutch artist "Rembrandt Harmenszoon van Rijn"
Similarly, in japan in 2016, an AI-generated short novel reached the second
round of a national literary prize. Today AI giving a tough challenge to artists
in terms of creating a new thing. From painting to poetry, music to math AI has
set its footprints everywhere. This development has created a lot of issues in
the intellectual property laws of the world. Attributing authorship to
AI-generated artwork and assigning a copyright to it in order to protect it is
one of the main issues.
It must be noted that present AI systems are much more
sophisticated than the computers of the past era when these copyright laws
related to computer-generated works were enacted. These laws do not suit to
AI-generated works, there is a need to come up with new IPR laws aptly suitable
to modern technology. Highlighting the need for new IPR laws for the
technologies like robots, machine learning, and AI, Dr. Paul Lambert says that
"Given that they are even further down-the-line from the equipment manufacturer
and developer, and considering that these new activities were not envisaged when
certain modern copyright statutes were extended, companies may have to consider
whether they can be pigeon-holed into the previous concept of defined
computer-generated works. We cannot be fully assured that they are all covered
by the various legal copyright extensions"[v].
India is serving as an example of a torchbearer here as for the first time it
recognized the artificial intelligence system as a co-author of a painting and
granted copyright on it. In November 2020 recognized an AI system namely
"RAGHAV" which stands for "robust artificially intelligent graphics and art visualizer" as a coauthor of copyright-protected artistic work. Ankit Sahni, the
owner of this AI system and also the other coauthor had earlier filed a
copyright application mentioning only the AI system (RAGHAV) as the sole author
of the artwork. But it was rejected by the copyright office and Ankit Sahni had
to file another application mentioning himself as a coauthor and this time it
was granted. This act marks the beginning of a new era of change in the IPR
regimes across the world and it gave a signal that if not a sole owner we can
start by granting joint ownership.
- WIPO, Artificial Intelligence and Intellectual Property
Policy,(15,10,2022), Available at
- Thaler v Commissioner of Patents  FCA 879
- Ferid Allani v. Union of India, 2019 SCC Online Del 11867
- Copyrightable Authorship: What Can Be Registered,pp.7, available at
- Dr Paul Lambert, Computer Generated Works and Copyright: Selfies, Traps,
Robots, AI and Machine Learning, European Intellectual Property Review,