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
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
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,
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.
- 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
- 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
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.
- 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
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
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.
- 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.
- 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.
- Patent filing across emerging technologies is gaining pace in India. Nasscom, The Economic Times (Feb. 5, 2022)
- Artificial intelligence and intellectual property: what next for the UK? Allen & Overy, Allen Overy (February 19, 2022)