The future is here, but are we ready! – Analyze the concept of IPR in AI creations – Part 1: Qualification of AI – Intellectual property

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Our partner, Alvin Antony discusses “The future is here, but are we ready! – Analyzing the concept of IPRs in AI creations – Part 1: Qualifying the AI”

In recent times, the role of artificial intelligence (“AI”) in people’s daily lives has increased dramatically. Therefore, discussions regarding the role of AI in various industries have also seen a sudden increase. The world of intellectual property rights (“IPR”) is one of those spheres awash with questions about developments in the field of AI and its intersection with intellectual property law. South Africa’s milestone for patenting AI creation1 as well as an important step for India to consider AI as a co-author of a work of art2 added further to the chaos regarding the complexities around the work created by an AI in autonomous mode3 way, that is, without any human intervention. Questions, such as whether these autonomous AI creations should be recognized as independent works, if these creations are eligible for protection under the current legislative framework and if the AI ​​is capable of owning / considering such creations in the true legal sense, remain unanswered. .

While there is no dearth of information about AI and its convergence with IP, we will analyze some of these questions and explore the possibilities around AI and IP through a series. of blogs in four parts. Each of the parties would focus on various aspects of this relationship. The first one party will consider the issue of granting legal personality to AI to be considered for providing IPRs, the second one part will look at the aforementioned issue from a holistic perspective, part three will highlight the problems that can arise when IPRs are granted for AI creations and part four will provide possible solutions to these problems / questions.

Before addressing the issue of the legal personality of an AI, it is relevant to understand what is meant by the terms “AI” and “IP”. For the purposes of this blogging series, AI creations would refer to works created by autonomous AI.

According to John McCarthy, AI is the “is the science and engineering of manufacturing intelligent machines, especially intelligent computer programs.4 AI is a method intended to mimic human intelligence using computers. In modern times, where concepts like machine learning5 and deep learning6 are able to create an autonomous AI with the results, the nature of this may need to be analyzed alongside the PIs created by human intelligence.

The Honorable Supreme Court of India has defined intellectual property in the following terms: “the term “intellectual property” refers to a category of intangible rights protecting commercially valuable products of the human intellect . “7. World Intellectual Property Organization defines intellectual property as creations of the mind8. Courts have also considered the granting of intellectual property ownership as a monopoly on the intellectual creations of the owner.9 and a way to exclude unauthorized users from enjoying the benefits of the intellectual property of anotherten.

As they say, the intellect can be seen as the point of origin of IP. However, the evolution of AI has raised the question of whether this intellect is limited or should be limited to humans.

According to the law, say for example, in the case of copyright law, the author of a copyright is considered to be the first owner of the copyright11. Most copyright laws around the world refer to the term “author”, without making any reference to the human intellect.12. However, these statutes are with the presumption that the author will be a human being.13 Likewise, with regard to patent law, the rights arising from the articles are considered in association with a “person” who is claimed to be the inventor.14. Even though the issue of the need for a human element is not really addressed by law, the possibility for a non-human entity to be considered an inventor is open under patent law.15. Therefore, it can be safely concluded that, unless specifically mentioned, common principles of intellectual property law do not prohibit providing intellectual property rights to AI.

In view of the above, it is important to understand how personality case law has developed in relation to these non-human entities. In M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors16, the Honorable Supreme Court of India has carried out an in-depth analysis of the concept of legal personality. In the opinion of the Court of Honor, “at a purely theoretical level, there is no restriction as to the legal personality that can be conferred. What matters is the purpose of conferring legal personality. To the extent that this objective is achieved, legal personality can even be conferred on an abstract idea “. The court observed that through legal animation, inanimate objects can be granted the status of legal person, if it benefits more than one natural person. In view of this, it can be argued that AI creations benefit natural persons, which leads to the conclusion that IPRs are granted to the authors / inventors of these AI-driven works. This is not something unique to India and many jurisdictions have relied on the object-benefit analysis and have considered including non-traditional legal persons to grant legal personality.17

Although the statutory framework is not totally opposed to qualifying AI for the attribution of IPRs, courts in many jurisdictions have expressed varying views regarding the authorship of a non-human entity. The Delhi High Court is of the opinion that an author of an original work must be a human being and not an artificial person. The Court of Honor in Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd., 1994 (28) DRJ 286, held that ownership of a work protected by copyright can only be granted if there is the participation of a human being in the creation of that work18. According to the court, legal persons cannot be considered as the authors of a work that may be the subject of copyright.19 While these court views have created partial blockages when considering IPRs in AI creation, the law has yet to fully come to a conclusion regarding the nature of autonomous AI creations, on the basis of recent developments.

The intention of any type of DPI is to create a system where human beings can achieve higher levels of creative ability. While considering IPRs in AI creations may face issues of lack of motivation in human creators, recognizing humans as authors of AI-generated works may not serve the true purpose of authors. DPI. This needs to be seriously taken into account, especially when we live in an age where AI is ubiquitous. Recent developments, such as the completion of Beethoven’s unfinished symphony20 testifies to the fact that the creations of AI are not secondary to the creations of the human intellect. This is probably the reason the world is trying to answer questions about the ever-changing nature of AI.

Footnotes

1. Basham, V., 2021. South Africa grants the world’s first patent listing AI as an inventor. [Blog] The Global Legal Post, available at: (https://www.globallegalpost.com/news/south-africa-issues-worlds-first-patent-listing-ai-as-inventor-161068982)
[Accessed 5 October 2021].

2. Sarkar, S., 2021. Exclusive: India recognizes AI as a co-author of copyrighted works of art. [Blog]Intellectual Property Management, available at: (https://www.managingip.com/article/b1t0hfz2bytx44/exclusive-india-recognises-ai-as-co-author-of-copyrighted-artwork)
[Accessed 5 October 2021].

3. Currently, AI creations can be categorized based on the level of human intervention in creating the result. Where assisted and augmented AI can be viewed in current legal configurations as works created by humans using a computer, the result of autonomous AI raises concerns about how the law should view. the same thing. See also Rice, D., 2020. Assisted intelligence versus augmented intelligence and autonomous intelligence. [Blog] FedTech, available at: (https://fedtechmagazine.com/article/2020/01/assisted-intelligence-vs-augmented-intelligence-and-autonomous-intelligence-perfcon)
[Accessed 11 October 2021] know the nature a level of human intervention in each type of AI

4. IBM.com. 2020. What is artificial intelligence (AI) ?. [online] Available at: (https://www.ibm.com/cloud/learn/what-is-artificial-intelligence)
[Accessed 5 October 2021].

5. See Expert.ai, 2020. What is machine learning? A definition. Available at: (https://www.expert.ai/blog/machine-learning-definition/)
[Accessed 5 October 2021].

6. Ibm.com. 2020. What is Deep Learning ?. [online] Available at: (https://www.ibm.com/cloud/learn/deep-learning)
[Accessed 5 October 2021].

7. The Institute of Chartered Accountants of India v Shaunak H. Satya and Ors. AIR 2011 SC 3336

8. Wipo.int. sd What is intellectual property (IP) ?. [online] Available at: (https://www.wipo.int/about-ip/en/) [Accessed 5
October 2021]. This was referred by the High Court Hon’ble Gujrat to Gurukrupa Mech Tech Pvt. Ltd. against State of Gujarat and Ors. (2018) 4GLR3324.

9. State of Kerala v The Malayala Manorama Company Limited 2017 (2) KLT36

10. McDonalds India Pvt. Ltd. and Ors. vs. Trade and Tax Commissioner, New Delhi and Ors. ST. APPL. 26/2013, High Court of Delhi

11. Section 17, Copyright Act 1957.

12. Section 2 (d), Copyright Act 1957.

13. See eg.2018 PRACTICE AND PROCEDURE MANUAL, Form -XIV: SOP Col 7

14. Section 28, Patents Act 1970

15. This can be concluded from the fact that the person within the meaning of Section 2 (1) (s) of the Patent Act 1970 also includes the government.

16. M Siddiq (D) Thr Lrs v Mahant Suresh Das & Ors, Civil Appeal Nos 10866-10867 of 2010, Supreme Court of India

17. See for example: Te Urewera Act 2014 Section 11 (1) by which New Zealand grants legal personality to the national park and the river .; Article 10 of the Constitution of Ecuador grants rights similar to the natural person to the whole nature. Even the Honorable High Court of Uttarakhand considered the Ganga and Yamuna rivers to be legal entities in Mohd. Salim v. State of Uttarakhand, 2017 CSC OnLine Utt 367

18. Rupendra Kashyap versus. Jiwan Publishing House Pvt. SA 1994 (28) DRJ 286

19. Tech Plus Media Private Ltd. versus. Jyoti Janda, (2014) 60 PTC 121

20. lgammal, A., 2021. How artificial intelligence completed Beethoven’s unfinished tenth symphony. [Blog] Smithsonian Magazine, available at: (https://www.smithsonianmag.com/innovation/how-artificial-intelligence-completed-beethovens-unfinished-10th-symphony-180978753/)
[Accessed 18 October 2021].

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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