The Future of IP Law in the Era of Artificial Intelligence

Introduction

AI will have an impact on all aspects of society, both directly and indirectly. This means that, in order to accept AI, some, if not most, domains of law will have to contemplate new realities. Intellectual Property Law is the branch of law that deals with legal rights to human inventions or intangible property such as patents, trademarks, trade secrets, geographical indications, and copyright, etc. In a nutshell, intellectual property law was developed with the goal of protecting human creativity. IP Law governs the existence, ownership, and transmission of rights over creative works of art and/or innovations. Artificial intelligence (AI) algorithms continue to play an increasing role in the creation of music, graphics, and other types of material, raising a variety of intellectual property (IP) issues. Because the primary goal of IP law is to foster and protect innovation and creativity, AI crosses with it.

Role of WIPO

WIPO was founded in 1970, following the entrance into effect of the 1967 WIPO Convention, with a mission from its Member States to promote intellectual property protection around the world through state cooperation and collaboration with other international organizations.

The WIPO Conversation aims to provide Member States with a chance to exchange opinions on a variety of frontier technology themes, including AI, and to formulate questions about the potential influence of frontier technologies on the IP system.

The state is required by Article 40 (5) of the Constitution of Kenya, 2010, to encourage, promote, and preserve the people's intellectual property rights.

How does AI affect I.P Law?

Several instances arise;

1.????? When AI is involved in a creative process, who should be acknowledged as the creator of a given work or art?

a)????? In Patents.

Following the enactment of the Industrial Property Act in 2001, KIPI was founded in 2002. KIPI is responsible for examining and granting patents in Kenya. For a patent to be registered, it has to be novel, new invention and have industrial applicability.

Essentially, the question is whether AI can create a new product or process. And if so, should the law allow the AI application patents such as those developed in the drug discovery be identified as the inventor? Currently one must have a legal personality in order to be the inventor. The law currently recognizes just two entities as having legal personality: human and legal persons. In Kenya only the inventor or any other person to whom the right has been transferred may make an application for the issuance and registration of a patent. It is assumed that a legal entity does not have the ability to invent or create; rather, it is the natural humans who work for that legal entity who do so. On this foundation, when a legal entity files an application, the application must be accompanied with a declaration supporting the applicant's right to a patent.

Since AI entities lack legal personality, under the current law, they cannot have rights and obligations, including ownership of intellectual property rights. This raises the question of whether the law should allow an AI application to be identified as the inventor. Who is the rightful owner of a patent incorporating an AI application?? Also, should new legal requirements be enacted to manage the ownership of AI-generated patents? And in that case how should we examine AI patent applications, during registration?

In patent cases thus far, AI systems lack legal personality and thus cannot be holders of ownership rights.

b)????? In Copyright;

In Kenya, Copyright law is governed by the Copyright Act, Revised 2022 (2001). ?AI programs can create literary and musical creations. The creator of a copyright-protected work is deemed the owner of copyright, according to the usual norm. There are, however, some exceptions, analogous to patent ownership. For example, any copyright work created while working for someone else is owned by the employer or the person for whom the work was created. Could barring AI-generated work from copyright protection be viewed as a tool for stimulating and favoring human innovation over machine creativity? Should AI-generated creative literary and artistic works be given copyright, or should a human? What happens when AI application infringes IP rights and what amounts to infringement?

The US District Court in Stephen Thaler Vs The Registrar of Copyrights, reaffirmed the longstanding principle that human authorship is a requisite for copyright protection.

The present legal standards for infringement of copyright are solely applicable to humans.? A number of questions therefore arise;

1. Is it an infringement of copyright to utilize data from copyright works for machine learning without permission? If not, should we change our laws to allow such data to be used to train AI applications?

2. What impact does AI development have on innovation, and are IP laws hindering innovation?

3. How will improper use of data existing in copyright works be recognized and enforced for machine learning?

4. Should deepfakes be subject to copyright law?

c) Trademarks

In the case of trademarks, for example, only the registered owner or licensee has the exclusive right to use the mark. This raises the question of whether a registered owner has the authority to license or authorize a robot. When it comes to AI infringing trademark rights, the High Court in Lush vs. Amazon concluded that Amazon infringed the LUSH trade mark by utilizing 'Lush' in its Google sponsored adverts and in its search facility on the Amazon website even though it did not sell LUSH items.?

?Conclusion

Artificial intelligence, like any other invention, can be protected by intellectual property rights such as copyrights, patents, and trade secrets. AI can be used in the IP Law to grant IP rights and also can be used by IP rights owners to detect infringement. It can also be used in image & pattern recognition software to identify infringement. Ownership and license agreements must be formed when AI is produced by a team or in collaboration with others. This can ensure that the authors and contributors are properly credited and compensated for their efforts.

Well, as the law stands today, only human and legal persons have the capacity and can be credited. As long as AI entities are not recognized as legal persons, then only human or legal entities can be held responsible for infringement.

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