Artificial Intelligence and its Aspects under Intellectual Property Rights
The author of this blog is Ms. Parul Soni pursuing B.B.A.LL.B (Hons.), a 4th Year student at Department of Law, Prestige Institute of Management and Research, Indore.
Introduction:
Accredited by synchroneity of complex statistical and technological patterns, Artificial Intelligence is marvelously incorporated and progressing in today’s world. Artificial Intelligence has augmented its widespread momentum leading to several prominent technological inventions and advancements. The creativity and originality of content created pose a challenge to the conventional concepts of Intellectual Property Rights pertaining to copyrights and patents. These challenges are inevitable and are required to afford a special status for protection under Intellectual Property Laws.
Introduction:
Accredited by synchroneity of complex statistical and technological patterns, Artificial Intelligence is marvelously incorporated and progressing in today’s world. Artificial Intelligence has augmented its widespread momentum leading to several prominent technological inventions and advancements. The creativity and originality of content created pose a challenge to the conventional concepts of Intellectual Property Rights pertaining to copyrights and patents. These challenges are inevitable and are required to afford a special status for protection under Intellectual Property Laws.
Artificial Intelligence: A Challenge to Intellectual Property Laws
Artificial Intelligence is the species of elevated human intelligence coupled with computer programs that are designed with an inbuilt ability of decision-making. Mr. John McCarthy, a computer scientist, coined, in 1956, artificial intelligence as “the notion of a program, processing and acting on information, such that the result is parallel to how an intelligent person would respond in response to similar input.”[1] Artificial Intelligence allows machines to perform tasks in human-like proficiency and originality. This originality rendered by machines propounds a question as to whether these machine creations can be protected under Intellectual Property Laws. And. If yes, who shall be the owner? Can an artificial person own an Intellectual Property? It is noteworthy that these questions are semantically analyzed as Artificial Intelligence's prevalence cannot be overlooked and it must be incorporated under the nest of Intellectual Property Laws.
It is to be cognizant of mind that each Artificial Intelligence system has a specific and unique implementation that reflects the full range of dynamic operations that secure legal attention. With the increasing prevalence and increasing capability of Artificial Intelligence, there are some of the Intellectual Property Law issues that the legal fraternity has to resolve.[2]
Artificial Intelligence is the species of elevated human intelligence coupled with computer programs that are designed with an inbuilt ability of decision-making. Mr. John McCarthy, a computer scientist, coined, in 1956, artificial intelligence as “the notion of a program, processing and acting on information, such that the result is parallel to how an intelligent person would respond in response to similar input.”[1] Artificial Intelligence allows machines to perform tasks in human-like proficiency and originality. This originality rendered by machines propounds a question as to whether these machine creations can be protected under Intellectual Property Laws. And. If yes, who shall be the owner? Can an artificial person own an Intellectual Property? It is noteworthy that these questions are semantically analyzed as Artificial Intelligence's prevalence cannot be overlooked and it must be incorporated under the nest of Intellectual Property Laws.
It is to be cognizant of mind that each Artificial Intelligence system has a specific and unique implementation that reflects the full range of dynamic operations that secure legal attention. With the increasing prevalence and increasing capability of Artificial Intelligence, there are some of the Intellectual Property Law issues that the legal fraternity has to resolve.[2]
Artificial Intelligence vis-à-vis Copyright:
A copyright is granted for the original creations of artistic and literary works which accords an exclusive right in favor of the creator for its use and distribution. The rationale and justification behind this was the notion that the author is an originator merged with Locke’s economic theory of possessive individualism.[3] Generally, for a grant of copyright, the fulfillment of two essential features is required. Firstly, the work should be in a tangible form, and secondly, it should be original.[4] It is evident and notable that Artificial Intelligence is adept in creating original literary work that is capable of protection under copyright, which renders understanding Artificial Intelligence in the light of copyright is paramount.
With regard to the Copyright Act, 1957, Section 2(d) of the Act defines the term "author" "in relation to any literary, dramatic, musical, or artistic work which is computer-generated, the person who causes the work to be created…"[5] This raises a complexity where machines are at liberty for decision-making. This decision-making results in the creation of original work that is solely undertaken by the machine. Presently, the Indian Intellectual Property system recognizes human-authors or natural persons eligible for copyright protection of their creations.
In this regard, it becomes necessary to analyze the views of two different Courts. In the case of Naruto v. Slater,[6] the U.S. Copyright Office formulated that work to claim protection under copyright must be necessarily be created by a human being. On the other hand, the U.K. Court in the case of Cummins v. Bond, [7]while inquiring whether a work can be registered in the name of Jesus. The Court held that the non-human nature of the source of work should not be a bar to copyright, regardless of any independent editorial judgment being exercised in the process. This judgment is stretched by the ones in favor of Artificial Intelligence, to include registration of the work done by Artificial Intelligence, which is also non-human in nature.[8]
The present prominence of the Intellectual Property system requires personhood of the copyright holder and the same about Artificial Intelligence is, belligerent. Even though, if the law recognizes the works created through Artificial Intelligence, the question about its ownership under copyright remains perplexed and inexplicable.
Artificial Intelligence vis-à-vis Patents:
Artificial Intelligence is designed exclusively for reducing human efforts and their execution depends upon the in-built complicated functions. This enables the Artificial Intelligence system to accomplish tasks based on the processing embedded in them. While this is a huge development from a technological standpoint, it poses new challenging questions from a legal standpoint, i.e., from the perspective of patent law.[9]
Patents are the quintessence of Intellectual Property Laws. Patents are granted as an exclusive right over inventions. Artificial Intelligence system-generated inventions confound principles governing Patent Law. It is not argumentative that Artificial Intelligence enables systems are capable of conceiving and creating inventions that are analogous to the creations generated by human intellect. Therefore, these systems are resulting in an invention that is eligible for patent protection if they are created by a natural person.
Moreover, Artificial Intelligence poses intricacy for establishing 'obviousness od the creation'. An Artificial Intelligence enabled system is intelligently capable of improving and transforming itself. As Artificial Intelligence is permeating almost every sector and industries, deliberations on whether the present definition of a POSA (person ordinary skilled in the art) is adequate for Artificial Intelligence era or it should be redefined so as to include within its folds a person equipped with Artificial Intelligence, assume much significance.[10]
Artificial Intelligence incites yet another complexity with regards to infringement of the registered patent. As Artificial Intelligence enabled systems are capable of generating inventions, sometimes these inventions result in the infringement of any existing patented invention. In such cases, the assignment of liability of infringement becomes difficult. However, countries like India removing their rigid requirement of only computer programs in conjunction with novel hardware being eligible for a patent.[11] Further, Artificial Intelligence generated inventions must be analyzed in accordance with the objectives of patent law and all the protection must not be detrimental to inventions created by humans.
Conclusion:
Artificial Intelligence has surged in the world, even though it has a long way for navigation through intellectual property issues. Revisiting Intellectual Property Laws for including creations of Artificial Intelligence enabled system under its purview must be done in a harmonious manner that does not impede and encroach the rights of individuals in creating original work. However, instead of going for the complete overhaul of the rules and guidelines currently set in place, it would be feasible for the regulators to modify and restructure the present laws in order to avoid complex and lengthy process and to prevent the law from getting static.[12]
Incorporating Artificial Intelligence in the Intellectual Property system will influence, profoundly, the technological advancements, inventions, economy, and public domain. But its incorporation becomes necessary as Artificial Intelligence enabled system solely has mensrea and actusreus for the act leading to the creation. Therefore, it is fundamental to envisage Artificial Intelligence under the Intellectual Property system in an amicable and coordinated procedure.
[1] Raquel Acosta, “The Rising Momentum of Artificial Intelligence and The Existing Dilemma With Intellectual Property Law”, 4 Journal on Contemporary Issues of Law 22 (2018).
[2] Redefine Intellectual Property with Artificial Intelligence, available at: https://singhania.in/wp-content/uploads/2018/09/A76-REDEFINE-INTELLECTUAL-PROPERTY-WITH-ARTIFICIAL-INTELLIGENCE.pdf (last visited on April 30, 2020).
[3] Leenheer Zimmerman, “It’s an Original!(?): In Pursuit of Copyright’s Elusive Essence”, 28 Columbia Journal of Law & the Arts 187 (2005).
[4] Swapnil Tripathi & Chandni Ghatak, “Artificial Intelligence and Intellectual Property Law”, 7 Christ University Law Journal 83 (2018).
[5] The Copyright Act, 1957 (Act 14 of 1957), s. 2(d).
[6] Naruto v. Slater, (PETA) 15-cv-4324.
[7] Cummins v. Bond, (1927) 1 Ch. 167.
[8] Supra note 4.
[9] Ibid.
[10] World Economic Forum, Artificial Intelligence Collides with Patent Law, available at: http://www3.weforum.org/docs/WEF_48540_WP_End_of_Innovation_Protecting_Patent_Law.pdf (last visited on April 29, 2020).
[11] Office Order No. 36(2017), INTELLECTUAL PROPERTY OFFICE (India), http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Office_Order_No_36_of_2017_for_Revised__Guidelines_for_Examination_of_CRIs. pdf; Balaji Subramaniam, Patent Office Reboots CRI Guidelines Yet Again: Removes ‘novel’ Hardware Requirement, SPICYIP, https:// spicyip.com/ 2017/07/patent-office-reboots-cri-guidelines-yet-again-removes-novelhardware-requirement.html.
[12] Supra note 2.
A copyright is granted for the original creations of artistic and literary works which accords an exclusive right in favor of the creator for its use and distribution. The rationale and justification behind this was the notion that the author is an originator merged with Locke’s economic theory of possessive individualism.[3] Generally, for a grant of copyright, the fulfillment of two essential features is required. Firstly, the work should be in a tangible form, and secondly, it should be original.[4] It is evident and notable that Artificial Intelligence is adept in creating original literary work that is capable of protection under copyright, which renders understanding Artificial Intelligence in the light of copyright is paramount.
With regard to the Copyright Act, 1957, Section 2(d) of the Act defines the term "author" "in relation to any literary, dramatic, musical, or artistic work which is computer-generated, the person who causes the work to be created…"[5] This raises a complexity where machines are at liberty for decision-making. This decision-making results in the creation of original work that is solely undertaken by the machine. Presently, the Indian Intellectual Property system recognizes human-authors or natural persons eligible for copyright protection of their creations.
In this regard, it becomes necessary to analyze the views of two different Courts. In the case of Naruto v. Slater,[6] the U.S. Copyright Office formulated that work to claim protection under copyright must be necessarily be created by a human being. On the other hand, the U.K. Court in the case of Cummins v. Bond, [7]while inquiring whether a work can be registered in the name of Jesus. The Court held that the non-human nature of the source of work should not be a bar to copyright, regardless of any independent editorial judgment being exercised in the process. This judgment is stretched by the ones in favor of Artificial Intelligence, to include registration of the work done by Artificial Intelligence, which is also non-human in nature.[8]
The present prominence of the Intellectual Property system requires personhood of the copyright holder and the same about Artificial Intelligence is, belligerent. Even though, if the law recognizes the works created through Artificial Intelligence, the question about its ownership under copyright remains perplexed and inexplicable.
Artificial Intelligence vis-à-vis Patents:
Artificial Intelligence is designed exclusively for reducing human efforts and their execution depends upon the in-built complicated functions. This enables the Artificial Intelligence system to accomplish tasks based on the processing embedded in them. While this is a huge development from a technological standpoint, it poses new challenging questions from a legal standpoint, i.e., from the perspective of patent law.[9]
Patents are the quintessence of Intellectual Property Laws. Patents are granted as an exclusive right over inventions. Artificial Intelligence system-generated inventions confound principles governing Patent Law. It is not argumentative that Artificial Intelligence enables systems are capable of conceiving and creating inventions that are analogous to the creations generated by human intellect. Therefore, these systems are resulting in an invention that is eligible for patent protection if they are created by a natural person.
Moreover, Artificial Intelligence poses intricacy for establishing 'obviousness od the creation'. An Artificial Intelligence enabled system is intelligently capable of improving and transforming itself. As Artificial Intelligence is permeating almost every sector and industries, deliberations on whether the present definition of a POSA (person ordinary skilled in the art) is adequate for Artificial Intelligence era or it should be redefined so as to include within its folds a person equipped with Artificial Intelligence, assume much significance.[10]
Artificial Intelligence incites yet another complexity with regards to infringement of the registered patent. As Artificial Intelligence enabled systems are capable of generating inventions, sometimes these inventions result in the infringement of any existing patented invention. In such cases, the assignment of liability of infringement becomes difficult. However, countries like India removing their rigid requirement of only computer programs in conjunction with novel hardware being eligible for a patent.[11] Further, Artificial Intelligence generated inventions must be analyzed in accordance with the objectives of patent law and all the protection must not be detrimental to inventions created by humans.
Conclusion:
Artificial Intelligence has surged in the world, even though it has a long way for navigation through intellectual property issues. Revisiting Intellectual Property Laws for including creations of Artificial Intelligence enabled system under its purview must be done in a harmonious manner that does not impede and encroach the rights of individuals in creating original work. However, instead of going for the complete overhaul of the rules and guidelines currently set in place, it would be feasible for the regulators to modify and restructure the present laws in order to avoid complex and lengthy process and to prevent the law from getting static.[12]
Incorporating Artificial Intelligence in the Intellectual Property system will influence, profoundly, the technological advancements, inventions, economy, and public domain. But its incorporation becomes necessary as Artificial Intelligence enabled system solely has mensrea and actusreus for the act leading to the creation. Therefore, it is fundamental to envisage Artificial Intelligence under the Intellectual Property system in an amicable and coordinated procedure.
[1] Raquel Acosta, “The Rising Momentum of Artificial Intelligence and The Existing Dilemma With Intellectual Property Law”, 4 Journal on Contemporary Issues of Law 22 (2018).
[2] Redefine Intellectual Property with Artificial Intelligence, available at: https://singhania.in/wp-content/uploads/2018/09/A76-REDEFINE-INTELLECTUAL-PROPERTY-WITH-ARTIFICIAL-INTELLIGENCE.pdf (last visited on April 30, 2020).
[3] Leenheer Zimmerman, “It’s an Original!(?): In Pursuit of Copyright’s Elusive Essence”, 28 Columbia Journal of Law & the Arts 187 (2005).
[4] Swapnil Tripathi & Chandni Ghatak, “Artificial Intelligence and Intellectual Property Law”, 7 Christ University Law Journal 83 (2018).
[5] The Copyright Act, 1957 (Act 14 of 1957), s. 2(d).
[6] Naruto v. Slater, (PETA) 15-cv-4324.
[7] Cummins v. Bond, (1927) 1 Ch. 167.
[8] Supra note 4.
[9] Ibid.
[10] World Economic Forum, Artificial Intelligence Collides with Patent Law, available at: http://www3.weforum.org/docs/WEF_48540_WP_End_of_Innovation_Protecting_Patent_Law.pdf (last visited on April 29, 2020).
[11] Office Order No. 36(2017), INTELLECTUAL PROPERTY OFFICE (India), http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Office_Order_No_36_of_2017_for_Revised__Guidelines_for_Examination_of_CRIs. pdf; Balaji Subramaniam, Patent Office Reboots CRI Guidelines Yet Again: Removes ‘novel’ Hardware Requirement, SPICYIP, https:// spicyip.com/ 2017/07/patent-office-reboots-cri-guidelines-yet-again-removes-novelhardware-requirement.html.
[12] Supra note 2.
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