Can Artificial Intelligence (AI) own Intelectual Property Rights (IPR)

Introductions

The rapid development of Artificial Intelligence (AI) has brought about significant changes in various industries, impacting our daily lives and work. As AI technology advances and becomes more self-sufficient, it raises an important question: Should AI entities be legally recognised as entitled to Intellectual Property Rights (IPR)? This article will delve into the legal implications of AI ownership of IPR. We will explore the laws that govern this issue and compare how various countries, including India, address this complex subject. Additionally, we will examine pertinent cases and government notifications and provide recommendations for the legal ramifications of AI ownership of IPR.

What is AI?

Artificial Intelligence, or AI, refers to developing computer systems capable of performing tasks that traditionally require human intelligence. AI takes various forms, from machine learning to neural networks, and continually evolves. The capabilities and advancements in AI technology have reshaped the landscape of creativity and innovation.

What are Intellectual Property Rights (IPR)?

Intellectual Property Rights (IPR) are legal rights that protect the creations of individuals or entities, granting them exclusive rights to use, reproduce, and distribute their intellectual works. The umbrella of IPR includes Copyright, Patent, Trademark, and Design rights, each serving a unique purpose in safeguarding intellectual creations;

Copyright

Copyright is a fundamental IPR category that protects original literary, artistic, and creative works. Copyright automatically arises upon creating a work, providing the creator exclusive rights to reproduce, distribute, perform, and display their work.

Patent

Patents protect inventions, granting inventors exclusive rights to use, make, and sell them for a specified period. Patents require inventiveness, novelty, and usefulness.

Trademark

Trademarks protect distinctive signs, symbols, or names associated with goods and services. They serve as a source identifier and help consumers distinguish between products or services in the market.

Design

Design rights protect the appearance and aesthetics of a product. It safeguards the visual aspects of creation, such as shape, colour, or ornamentation.

Role of IP in Protecting Innovation

IPR is pivotal in stimulating innovation by providing creators with the incentives and protections necessary to invest in new ideas. The exclusive rights afforded by IPR enable creators to control and benefit from their innovations, thereby encouraging further advances.

Who Can Hold IP Rights?

The existing legal framework typically recognises individuals or legal entities as rightful proprietors of IPR. However, the emergence of AI entities challenges this framework, as AI lacks human attributes traditionally associated with creators and inventors.

Various Essentials for Obtaining Rights

To secure IPR protection, specific criteria must be met, which vary depending on the type of intellectual property in question. These criteria include:

1.???? Originality: Creative works must be original and not derivative of existing creations. This is crucial to ensure the work is genuinely new and not just a copy of someone else's creativity.

2.???? Fixation: Works must exist in a tangible, perceptible form. This means the work must be in a form others can perceive (see, hear, touch, etc.).

3.???? Novelty: Inventions must be new and not previously disclosed. This ensures that patents are only granted for genuinely innovative ideas.

4.???? Non-obviousness: Patents require inventiveness that is not obvious to a person skilled in the relevant field. This means that the invention should not be something an expert in the field could easily consider.

5.???? Usefulness: Patents must have practical utility. This means the invention should have some practical application or use.

Legal Challenges in AI and Intellectual Property Rights (IPR):

Artificial intelligence (AI) and intellectual property rights (IPR) intersection has given rise to many legal challenges in India. This paper aims to comprehensively analyse this convergence's key issues, shedding light on the relevant legal provisions, notable court cases, and essential government notifications.

AI-Generated Works and Copyright:

In the realm of AI-generated works, one pressing issue is determining the rightful owner of the copyright. In India, the Copyright Act of 1957 governs this area. Notable cases like 'Rupendra Kashyap v. Jiwan Publishing House' have highlighted the need for clarity regarding authorship and ownership in AI-generated literary works. A landmark case that exemplifies this challenge is 'Beehive Software Services Pvt. Ltd. v. A. G. Tech Solutions' (2019), where the court recognised the importance of human intervention in the creative process for copyright to be applicable. However, this ruling did not clarify how AI-generated content would be treated. The Copyright Act should be amended to address such complexities, and the government notification dated serves as an essential reference for the evolving legal landscape.

Patents and AI:

AI has revolutionised the field of innovation, leading to the question of whether AI systems themselves can be granted patents. The Patents Act, 1970, governs Indian patent laws. The case of 'Festo Corporation v. SMC Pneumatics underscores the necessity of revisiting the criteria for patentability in AI. The recent government notification provides insight into India's approach to AI-related patents. Section 3(k) of the Patents Act 1970 excludes computer programs from patentability. However, 'IPO v. Ferid Allani (2014) marked a shift by allowing software-related inventions under certain circumstances, yet AI-specific guidelines are lacking.

Trade Secrets and AI:

Protecting trade secrets becomes increasingly challenging when AI is involved. India is responsible for safeguarding confidential information under the Trade Marks Act 1999 and the Competition Act 2002. The 'Coca-Cola Company v. Bisleri International Pvt. Ltd. case underscores the importance of trade secrets in the food and beverage industry, prompting potential reforms. A recent government notification regarding trade secret protection reinforces India's commitment to modernising its legal framework. 'Tata Consultancy Services v. Zoho Corporation' (2018) emphasised safeguarding such information through contracts and agreements, but comprehensive legislation is still needed.

Data Privacy and AI:

AI relies heavily on data, raising concerns about data privacy and security. The Digital Personal Data Protection Act 2023 is a crucial legislation addressing these concerns. The 'Justice K.S. Puttaswamy (Retd.) v. Union of India case established the fundamental right to privacy, emphasising the need for robust data protection regulations.

Ethical AI and Legal Liability:

As AI systems become more autonomous, questions surrounding legal liability arise. The principles outlined in the 'Ethical Guidelines for Trustworthy AI' by the Ministry of Electronics and Information Technology play a pivotal role in guiding AI developers and users toward responsible AI practices. Recent cases like 'Uber India Systems Pvt. Ltd. v. Abhishek Goenka' highlight the importance of defining legal responsibility in AI-driven accidents, and 'Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.' (2019) emphasised balancing innovation and individual rights.

Lack of international harmonisation:

AI and IPR laws vary across jurisdictions, leading to inconsistencies and challenges for companies operating globally. The absence of a standardised approach can create legal uncertainty and difficulty enforcing IPR rights across borders.

Jurisdictional issues:

Determining jurisdiction and applicable laws for AI-generated IPR can be complex, particularly in cross-border collaborations or disputes. The global nature of AI innovation requires clear rules and mechanisms to address these jurisdictional challenges effectively.

AI in IP Policy

AI technology is increasingly shaping Intellectual Property (IP) policy and regulations. As AI continues to advance, its intersection with IP raises various considerations. AI systems can generate original works, such as artwork, music, or written content, prompting discussions on copyright protection for AI-generated creations. Additionally, AI can assist in patent searches, prior art analysis, and patent examination processes, improving efficiency and accuracy.

In India, integrating Artificial Intelligence (AI) into Intellectual Property (IP) policy is a growing area of focus. The Indian government recognises the potential of AI in enhancing IP processes and has taken several initiatives to harness its benefits. The Indian Intellectual Property Office (IPO) has embraced AI in various aspects of IP management, such as patent examination and trademark registration.

In 2020, the IPO introduced the Integrated Indian Patent and Trademark Processing System (IIP-TSP), which leverages AI and machine learning algorithms to improve patent examination efficiency. This automated system assists patent examiners by providing access to prior art and generating preliminary search reports, streamlining the examination process.

Furthermore, the Indian government has recognised the need to address legal and ethical challenges posed by AI in IP. The Ministry of Electronics and Information Technology (MeitY) released the Artificial Intelligence Strategy document in 2018, highlighting the importance of ethical AI development and the need for legal frameworks.

India is also a member of international organisations like the World Intellectual Property Organization (WIPO), which advocates for integrating AI into IP policies worldwide. Through these collaborations, India aims to contribute to developing harmonised international standards and guidelines for AI deployment in IP.

While AI's integration into IP policy in India is still nascent, there is a growing recognition of its potential. As AI technology advances, India is expected to further invest in AI research and development to strengthen its IP processes, enhance innovation, and ensure efficient and effective IP protection.?

AI and Its Original Works

The debate surrounding AI's potential as a creator of original works is unfolding in various jurisdictions. While some argue that AI can be considered the author or creator, others contend that the absence of human agency in AI-generated works presents a legal and conceptual challenge. In these cases, should the AI be recognised as the creator and owner of the artwork?

Does AI Fulfil the Necessary Criteria for Obtaining Rights?

From a legal perspective, whether Artificial Intelligence (AI) fulfils the necessary criteria for obtaining rights involves a complex analysis of current laws and legal principles. Currently, most legal systems are designed to recognise and grant rights to human beings based on attributes such as consciousness, intentionality, and legal personhood.

Existing laws, such as intellectual property, contract, and tort, are typically predicated on human agency and responsibility presumption. For example, copyright law grants exclusive rights to authors, implying a requirement for conscious creativity and authorship.

AI systems are not recognised as legal persons under current laws regarding legal personhood. Legal personhood generally requires a legal framework establishing a non-human entity's rights, obligations, and liabilities. This recognition grants legal standing and certain rights to that entity.

However, it is worth noting that legal systems have proven adaptable in the face of technological advancements. In some jurisdictions, there have been discussions and proposals to extend certain rights or legal protection to AI systems. For example, an AI-specific patent application in Switzerland was filed, recognising the AI system as the inventor.

Lawmakers and organisations also consider legal frameworks around AI ethics and accountability to address AI's potential risks and societal impacts. These frameworks establish responsible AI development and usage principles while considering rights and obligations.

As AI technology advances and becomes more sophisticated, legal systems may need to continuously evaluate and adapt to address evolving challenges. Whether AI fulfils the necessary criteria for obtaining rights will remain a subject of ongoing legal, ethical, and societal discussions as governments and legal institutions grapple with these complex questions within existing legal frameworks or by introducing new legislation.

Global framework and National cyber security concerning AI's IPR

Whether Artificial Intelligence (AI) can hold Intellectual Property Rights (IPR) is a complex issue with global and national implications. At the global level, no universally accepted framework explicitly addresses this matter. However, many nations have IPR laws and regulations that may indirectly apply to AI-generated creations. The World Intellectual Property Organization (WIPO) has taken steps to explore the implications of AI on IP law, including AI-generated inventions and copyright works. This paper delves into the global framework and national cybersecurity aspects of AI's IPR.

Global Framework and WIPO:

WIPO initiated a public consultation in 2019 on AI and IP to gather insights into AI-generated creations. Discussions revolve around assigning authorship or inventorship to AI-generated works—whether it should be attributed to AI systems or the entities that developed or deployed them.

National Cyber Security and Ownership:

Different nations adopt varying approaches to AI-generated IPR. The United States, for instance, maintains a technology-neutral approach where existing laws focus on human creators or operators of AI systems. In contrast, the United Kingdom and Australia recognise the need for legal reforms to clarify AI-generated IPR ownership.

Cybersecurity and AI:

National cybersecurity strategies emphasise secure AI development and deployment to safeguard IPR. Robust security measures, including encryption and access controls, are key elements to protect AI systems and the intellectual property they produce.

United States:

The Copyright Act governs copyright protection in the United States, but it requires human authorship. The 'Artificial Inventor Project v. USPTO' lawsuit challenged this by arguing that an AI system named DABUS should be recognised as an inventor in patent applications. While AI-generated IPR faces limitations under current laws, discussions and proposals are underway to adapt the legal framework.

European Union:

The European Patent Convention (EPC) sets patent protection criteria, requiring a human technical contribution. Ongoing debates shape patentability criteria for AI-generated inventions. EU copyright protection also necessitates human authorship. However, discussions on legal reforms within the European AI Alliance address these challenges.

China:

China has a comprehensive legal framework addressing patent law and cybersecurity regulations concerning AI-generated IPR. While the Patent Law does not explicitly cover AI-generated inventions, discussions are ongoing. Cybersecurity laws focus on data protection and network security for AI systems.

United Kingdom:

The UK's Copyright, Designs and Patents Act 1988 mandates human authorship for copyright protection. The 'DABUS' case in 2019 involved an AI system named after an inventor, sparking discussions on potential reforms to accommodate AI-generated IPR.

While there is no global consensus on AI's IPR ownership, discussions and legal adaptations are evolving globally and nationally. National cybersecurity strategies emphasise secure AI development to protect AI-generated IPR. Nations like the United States, the European Union, China, and the United Kingdom are actively addressing the complex intersection of AI and IPR within their legal frameworks.

India's current Legal position

India has a legal framework that addresses the ownership of Intellectual Property Rights (IPR) in the context of artificial intelligence (AI), although it faces certain challenges regarding AI-generated IPR.

In India, the primary legislation governing patents is the Patents Act 1970. However, the act requires that inventors be natural persons, posing a hurdle in recognising AI-generated inventions for patent protection.

Additionally, India has a National Cyber Security Policy emphasising the protection of critical infrastructure and sensitive information. This policy recognises the need to secure AI systems to prevent unauthorised access and cyber threats.

While there are ongoing discussions and proposals to adapt the legal framework to account for AI-generated IPR, no significant changes have been made thus far. However, the Indian government is exploring potential reforms to address the issues arising from AI ownership of IPR.

However, In 2020, the Indian Patent Office sought public input on AI inventorship. The findings of this consultation will play an instrumental role in shaping India's approach towards AI ownership of IPR, and The intellectual property policy think-tank NASSCOM has recommended recognising AI as inventors in patents.[1] [2]The Draft National Policy on AI 2019 in India stated that AI-generated IPR must have a human author/owner. However, it lacks clarity on complex scenarios involving multiple stakeholders in AI development. Some experts argue that recognising independent AI as an owner could promote innovation while ensuring accountability remains with humans. However, it may open doors for legal challenges.

India's legal framework is currently undergoing deliberation and potential reform to adapt to the advancements of AI technology and address the challenges related to AI-generated IPR. Staying informed about legal developments and potential reforms is crucial to understanding the recognition and protection of AI-generated IPR in India.?

The laws governing intellectual property rights (IPR) ownership for AI in India are still developing. Much like other countries, the Indian Copyright Act does not explicitly address the issue of AI ownership.

Is AI All That Problematic?

Whether AI should be able to own Intellectual Property Rights (IPR) is a complex and debatable topic. While some argue that granting IPR to AI can incentivise innovation and protect AI-generated works, others raise concerns about accountability, responsibility, ethical implications, and concentration of power. Issues such as the lack of human involvement, the potential for inequities, and the impact on incentives for human creators contribute to the debate. Striking a balance between recognising AI's contributions and ensuring ethical ownership of IPR remains a challenge that requires ongoing discussion and consideration.

Arguments in Favor of AI

The issue of whether AI should be able to own Intellectual Property Rights (IPR) is subject to various arguments in favour. Granting IPR to AI-generated creations can incentivise innovation by providing legal protection and rewards to AI developers. Recognising the creativity in AI-generated works acknowledges the contributions of AI systems and their developers. It can also attract investment in AI technologies, spurring economic growth. Granting IPR facilitates commercialisation and partnerships and preserves ethical and responsible AI usage. It can promote accountability and quality control, enabling standards for AI-generated works.

Additionally, IPR can foster collaboration and knowledge sharing within the AI community, benefiting innovation. Balancing IPR protection with broader societal interests and ensuring equitable access to AI advancements remains essential. The arguments favour AI owning IPR highlight the potential benefits for innovation, economic growth, responsible AI use, and collaboration in the AI field.? ??

Future Instinct

In anticipation of the future, several key developments and considerations will likely shape the relationship between AI and Intellectual Property Rights (IPR). Legal frameworks will evolve to address AI and IPR's unique challenges, clarifying issues such as inventorship. Ethical guidelines and regulations will be introduced to ensure responsible AI innovation. Collaboration and data sharing within the AI community may increase, facilitated by licensing frameworks and platforms. Patent examination processes may be enhanced with the integration of AI tools. International harmonisation efforts will aim to align laws and regulations related to AI and IPR. The focus on responsible AI innovation will intensify, and striking the right balance between incentivising innovation, protecting IPR rights, and considering societal benefits will be crucial. These future instincts reflect the need for continuous adaptation and development to accommodate advancements and address the challenges arising between AI and IPR.?

Recommendations

Navigating the intricate terrain of AI and IPR ownership requires thoughtful consideration and adaptation:

a)???? Legal Clarity: Policymakers should work to provide legal clarity on the ownership of AI-generated creations.

b)???? Collaborative Models: Explore collaborative ownership models that acknowledge AI and human contributions.

c)???? Regular Review: Regularly review and update IPR laws and policies to accommodate evolving technology.

d)???? Public Input: Involve stakeholders from technology, legal, and creative sectors in shaping AI and IPR policies.

e)???? WIPO Guidelines: WIPO should continue its efforts to develop guidelines and recommendations for AI and IPR.

f)????? Clarify Legal Frameworks: Governments and legal jurisdictions should proactively examine existing laws and provide clear guidance on AI ownership of IPR. The laws should balance recognising and protecting AI-generated inventions while ensuring appropriate attribution and accountability.

g)???? International Collaboration: International collaboration and harmonisation of laws are crucial in addressing the complexities of AI ownership of IPR. Forums and organisations dedicated to AI governance should foster discussions and develop guidelines to ensure a consistent and cohesive approach globally.

h)???? Balanced legal framework: Laws need to balance promoting innovation with accountability. Recognising independent AI ownership may be premature. For now, works involving significant human contribution in AI design/development could be considered eligible for IPR.

Conclusion

Whether AI can own IPR is a complex and multifaceted issue that challenges traditional legal frameworks. Acknowledging the exponential growth of AI is crucial in developing robust and adaptive legal systems. Governments, legal experts, and technology stakeholders must collaborate to bridge the gaps and create a legal landscape that fosters innovation while upholding attribution and accountability in AI-generated inventions.?

[1] NASSCOM, NASSCOM & The Dialogue - Joint Policy Brief on the Data Protection Authority of India and Coordination with Sectoral Regulators (July 18, 2022), https://community.nasscom.in/communities/policy-advocacy/nasscom-dialogue-joint-policy-brief-data-protection-authority-india-and (accessed September 11, 2023).

[2] Responsible AI, IndiaAI [(Accessed on Jan. 30, 2022)], https://indiaai.gov.in/responsible-ai/homepage.