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Artificial Intelligence and Intellectual Property Rights Conundrum

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.

Patient:

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 problem.

There are three basic requirements that an inventor has to prove in order to get his invention patented:
  1. Novelty:
    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.
     
  2. 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.
     
  3. 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:

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 granting copyright:
  1. 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 be granted.
     
  2. 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 digital camera.
     
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.

End-Notes:
  1. WIPO, Artificial Intelligence and Intellectual Property Policy,(15,10,2022), Available at https://www.wipo.int/about-ip/en/artificial_intelligence/policy.html
  2. Thaler v Commissioner of Patents [2021] FCA 879
  3. Ferid Allani v. Union of India, 2019 SCC Online Del 11867
  4. Copyrightable Authorship: What Can Be Registered,pp.7, available at https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf
  5. Dr Paul Lambert, Computer Generated Works and Copyright: Selfies, Traps, Robots, AI and Machine Learning, European Intellectual Property Review,

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