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The Future of IPR: Emerging Technologies and Legal Frameworks

As the world becomes increasingly digital, the importance of intellectual property rights (IPR) has grown exponentially. The intellectual property now comprises one of the most valuable assets of any organisation, with patents, trademarks, copyrights, and trade secrets playing a critical role in facilitating innovation and growth. While IPR exists to provide legal protection and incentives to creators and inventors, new technologies and future trends in law will shape the future of IPR. In this article, we'll examine the emerging technologies and legal frameworks in India that will affect the future of IPR.

At present AI has been able to perform tasks involving human intelligence and the research and development on AI are still going on and the functions which AI will be able to perform in the near future are beyond imagination. But when we are discussing the benefits we must not forget that ultimately it is a machine and for a machine and there have been instances where the machine got beyond the control of the programmer and started performing tasks on its own.

Now these tasks can be either constructive or destructive but it gets difficult to control the AI machine or program if it starts performing actions on its own and goes beyond the programmer's hands. Though a lot has been done in the field of Artificial Intelligence there are still many ambiguities which still prevail and there is hope that the same is being resolved in the near future and we will have a clear roadmap as to what extent AI can function in human lives and inventions as well.

Emerging Technologies Impacting IPR In India

The future of IPR is being shaped by some of the emerging technologies in India. The following are some crucial emerging technologies that are likely to have a significant impact on IPR:

Artificial Intelligence (AI) and machine learning (ML)
AI and ML are among the most prominent emerging technologies that will impact IPR in India. With the emergence of AI-enabled machines, there is an impetus to redefine existing IP protection laws to make them more stringent. There is a growing concern about the lack of legal mechanisms to protect AI-generated works such as music, art, books, and films. In India, the adoption of technological advancements such as AI and ML will require a robust legal framework. To protect the creators of AI-generated work, new IPR laws and frameworks have to be implemented.

Blockchain is another emerging technology that has the potential to revolutionise the global economy. The technology has the ability to track and manage digital assets securely, which could lead to the development of new and better ways to register IPR. As blockchain provides a decentralised and transparent management system, its implementation could provide more transparency and secure copyrights, patents, and trademarks in India. Adopting blockchain technology would help streamline the IPR acquisition process and reduce the time and cost involved.

Internet of Things (IoT)
The Internet of Things (IoT) has brought unprecedented connectivity to the world. The technology connects devices such as home appliances, cars, and other electronics, generating massive amounts of data. With this new level of connectivity, creative inventions will arise, which will require protection from exploitation by third parties. India has some existing legal frameworks to address IoT, such as the Information Technology Act. However, further legal and regulatory assessments will be required to reach a consensus on a uniform framework that considers the complexity of protecting IPR in the Internet of Things ecosystem.

India's Ai & IPR Realm

India's development model includes a large amount of technological progress, including AI. AI is not limited to social media and entertainment but is also accelerating retail. From online shopping to online car services, the country has experienced rapid technological changes. Problems in developing countries such as India are more concerning because it is the basic infrastructure that needs to be modified. India has well-established patent and copyright laws. However, there are no specific laws or provisions to regulate AI. Existing legislation does not cover the scope of artificial intelligence but is based on older types of intellectual property such as books, creative works, discoveries, etc.

The scope of artificial intelligence is much more complex and must be addressed differently than the existing system. Under the 1970 Patent Act, computer programmes, commercial methods, and mathematical formulas are not considered patentable inventions. In addition, the terms patentee" in Article 2 (p) of this Act and "person interested" in Article 2 (t) of this Act create barriers to the inclusion of AI in its scope. The Act specifically prohibits patentees of other persons who are interested in being humans.

Under the Copyright Act, two basic doctrines define the originality of work under the Act: the Heat of the Brow Doctrine and the Modicum of Creativeness. The theory states that a minimum of creativity is also acceptable, so you can include the original work of AI. The author of this act has been implied to be a human or legal person, thus restricting the idea of a machine being protected under this act.

Data analysis tasks such as updating IP profiles, examining patent databases, and clearing trademarks may be managed by an artificial intelligence programme. These are fairly fundamental functions that are frequently performed. Computer-assisted intelligence can replace long, unproductive, and costly hours of labour by using algorithms. More functions, such as patent filing, trademark filing, drafting agreements, and discovery, may be performed by AI, but they will necessitate a degree of competence and judgement that AI is currently unable to give due to evolving research trends.
  1. Patents and AI
    India has filed several AI-related patents in recent years. The level of human participation required by AI-based processes or products is not particularly controlled in the Indian Patents Act, 1970. Computer programmes, business practices, and mathematical formulae are not considered patentable inventions under the Patent Act of 1970. The words "patent" and "person interested" in Section 2 (p) of the aforementioned Act act as a barrier to AI being included in its scope.

    The Act specifically prohibits anyone other than a human being from becoming a patentee. A patent gives the proprietor exclusive rights to the innovation, forbidding others from creating or selling it for a set period of time. The notion of "true and first inventor" is specified in Section 2(y) of the Act, for whom the right is granted. The actual and first inventor is not the person who brought the innovation into India or the person to whom it was communicated from outside India. Section 2 (y) does not require that the "true and first inventor" be a person; hence, works made by AI systems are within the definition's scope.

    Since AI lacks ownership rights over its work, it lacks the ability to offer consent to third parties. Similarly, it confronts a quandary when it comes to allocating its rights. Artificial intelligence is the subject of 6% of all rising tech patents in India, which is emerging as a key innovation location for global corporations. India ranks seventh in terms of artificial intelligence patent filings and fourth in terms of AI research publications. Furthermore, all inventive ideas may be obvious to an AI, in which case patent protection will be null and void. Because of the vagueness of the legislation, there are issues and doubts about AI protection and enforcement.
  2. Copyright and AI
    The requirement for copyright protection is originality. Originality is required for copyright protection. The Copyright Act defines original work through two concepts: sweat of the brow doctrine and modicum of creativity." The Sweat of the Brow Doctrine holds that an author can claim copyright for his work just by exercising diligence. It is not necessary to be inventive or original. Original work, according to the modicum of creativity, demonstrates a great level of invention and judgement. In the case of Eastern Book Company v. D.B. Modak, Indian courts adopted the Modicum of Creativity test, stating that computer works can fulfil the test of originality and that AI can be included in the Modicum of Creativity to be considered.

    As the idea allows for a minimum amount of originality, AI's original work may be included. Section 2(d) of the Act grants copyright rights to the "creator" of the work. Because the author of this act is assumed to be a human or legal person, the idea of a machine being protected under this act is limited. Only 'natural persons', including businesses, firms, and partnerships, can own the copyright in India. AI systems are not covered by the current Copyright Act. As a result, AI's work would be uncertain in terms of authorship under Indian copyright law.
  3. Trademarks and AI
    E-commerce businesses use AI to suggest products based on past purchases, searches, and other data from customers. Trademarks serve as source identifiers, assisting customers in selecting a brand based on knowledge and confidence. Brand owners worry that as artificial intelligence develops, customer choice will become more limited and brand value and sales will suffer. In some cases, the topic of trademark infringement has been brought up about AI. Regarding the use of keywords in advertising and Google's automated choices, which were thought to be infringing on the petitioner's trademark, there was a trademark dispute between Louis Vuitton and Google France. The court did, however, rule that no infringement took place unless the parties actively took part in the act.
Online firms promote potential customers using AI-based computational techniques. Our search history, hobbies, purchasing patterns, and a variety of other characteristics are just a few small aspects that have an impact on the development of this data. As a result, Trademark's fundamental premise has become obsolete due to the introduction of AI-based solutions. This tendency is anticipated to accelerate shortly if AI is not addressed and gaps are not closed through the creation and implementation of relevant policies.

Emerging Legal Frameworks Impacting IPR In India

The Indian Parliament has passed several bills, including amendments to existing laws that have had an impact on IPR. Progressively, novel legislations such as the Geographical Indication of Goods Act, 1999, the Indian Copyright Act, 2012, and the Patents Act, 1970, have helped create the legal framework for intellectual property protection. These laws have greatly contributed to the establishment of a comprehensive legal framework for IPR protection in India.

However, emerging legal frameworks also need to be considered to catch up with the growth of new emerging technologies that undermine the integrity of IPR protection. The following are some of the emerging legal frameworks that will impact IPR in India:

Draught National Artificial Intelligence Policy
With emerging technologies such as AI and ML comes the need for comprehensive policy frameworks. In India, the Draught National Artificial Intelligence Policy has been developed to guide the ethical, privacy, legal, and regulatory frameworks for the development and use of AI. The policy recognises the need to create adequate IPR laws to protect the creators of AI algorithms, which are patentable. The policy emphasises the development of mechanisms to recognise and reward the creative efforts of individuals and establishments that leverage the potential of AI technology.

In a survey of IPR and emerging technologies, it was found that there are already some specific changes that the Indian Patent Office has carried out in response to the use of AI in the patenting landscape: "The Indian Patent Office has imposed comprehensive guidelines strictly about the AI platform's operation mechanism and the nature of the AI algorithm in the application process." (Sahu and Paranjape, 2021)

The Data Protection Bill, 2019
The Data Protection Bill, 2019, is an essential piece of legislation that has a direct impact on intellectual property rights in the digital landscape. It aims to create a legal framework that encourages consistent data protection practises by defining and enforcing data protection rights. The bill provides guidelines on the use of personal data that could be used to protect the real creators of original work while discouraging unauthorised access and use of such data.

The Data Protection Bill proposes to enshrine the right to data confidentiality and is expected to benefit copyright holders in India, particularly in the entertainment space. (Singh and Sahay, 2020)

Cyber Security Policy
A robust cybersecurity policy plays a critical role in protecting IPR in the digital environment. With the adoption of new emerging technologies, cyber threats are becoming more sophisticated, and cybercrime is growing exponentially. India has drafted a National Cybersecurity Policy to establish an effective regulatory framework that will secure IPR from cybercrimes. The policy focuses on providing the right infrastructure, training, and personnel to ensure that IPR is adequately protected from threats posed by cybercriminals.

Emerging technologies and legal frameworks will have a significant impact on the future of IPR in India. With AI and ML, blockchain, and IoT being adopted at a fast pace, it's essential to put in place legal and regulatory frameworks that support the growth of the digital ecosystem in India. The laws created by the government must be designed so that we can benefit from technology without jeopardising our rights.

As part of a historic judgement, the Supreme Court of India examined the concept of a legal person and ruled that there are no theoretical restrictions on the forms of legal personality granted (Shiromani Gurdwara Parbandhak Committee vs. Som Nath Dass and others), thus enabling changes leading to the creation of a legal entity where AI can be the co-owner of the invention. The IP industry grows proportionally to the growth of artificial intelligence. Consequently, innovation will also increase because transparency will increase, expenses will decrease, and the process will be easier. AI software data protection must be included in a specific law that includes all civil and criminal duties and offences.

A new interpretation of the law is also imperative for AI to succeed as IP owners and expand the scope of IP. For example, Canada has developed a statistic called the Intellectual Property Concentration Index (IPCI) to measure the frequency with which certain nations grant patents to artificial intelligence concepts over time.

The introduction of such an index can be used to measure the competitiveness of an industry or technology field based on the distribution of Indian patents in that market or industry. This discovery indicates that the extraction of text and data from copyrighted works can be allowed under the interim copy exemption (if the copied work has no independent economic meaning) and in licencing agreements. With a quasi-patent right with limited exclusivities and a short life expectancy, the consultation aims to work alongside the current patent system.

As India strives to become a digital-first economy, it is becoming increasingly important to establish IP protection mechanisms that secure creativity and innovation. A comprehensive and robust legal framework for IPR protection coupled with a policy framework to guard against cyber threats will help secure India's intellectual property while promoting innovation and creativity.

  1. Sahu, M. K., & Paranjape, N. R. (2021). Artificial intelligence and its impact on intellectual property rights: An Indian perspective World Journal of Entrepreneurship, Management, and Sustainable Development, 16(1), 31�42.
  2. Singh, S., & Sahay, S. (2020). The Data Protection Bill, 2019: An insight into its probable impact on IPR in the digital realm Journal of Intellectual Property Rights, 25(4), 245-253.
  3. Patent filing across emerging technologies is gaining pace in India. Nasscom, The Economic Times (Feb. 5, 2022)
  4. Artificial intelligence and intellectual property: what next for the UK? Allen & Overy, Allen Overy (February 19, 2022)

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