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AI And IPR: A Synergy

Artificial intelligence (AI) is the ability of a digital computer or robot operated by a computer to carry out tasks frequently performed by intelligent individuals. The phrase is widely used in reference to the effort to create AI systems that possess human-like intellectual traits including the capacity for reasoning, meaning-finding, generalisation, and experience-based learning. As artificial intelligence (AI) develops further, it will soon be a widely used general-purpose technology in both the economy and society.

Many nations all around the entire globe now view AI as a strategic capability. It is becoming more common to implement strategies for building AI capabilities and AI regulatory measures. The idea gained support with the development of computers, and today there are actual machines and robots that are learning to maximise human learning. When AI initially started, it was a big deal, and in recent years, it has emerged as one of the most promising aspects of technology. The machine learning method entails data analysis, pattern recognition for user choice, and application to get the best outcome on the market. The need for AI's usefulness is driven by the massive volume of data manipulation and organisation demand.

The management of IP in AI is a topic brought up by this boom. Concerning the governance of IPR in the field of artificial intelligence, there are several oddities. Over patent and copyright ownership, there exist doubts, and there are serious worries over the issues involved with infringement and the associated consequences.

A crucial part of the industry's legal environment is intellectual property (IP), with various IP rights being essential to its sustainability and expansion. Patents (often for technical inventions), trademarks (for goods and services), copyright (for music, art, and literature), and designs (for products and logos) are some of the tools used to establish, protect, enforce, and promote these rights.

IP in the world of AI

In 1991, during the Gulf War, the USA deployed DART. It was an application for scheduling and planning logistics automatically. STANLEY, a self-driving car, took the title in the DARPA Grand Challenge in 2005. Sophia, a humanoid robot, was naturalised as a Saudi citizen in 2017. This aroused concerns about AI computers having the same rights as humans. A decision from the San Francisco court in the matter of Naruto v. Slater, widely known as "The Monkey Selfie Case," refused copyright demands for a macaque monkey who took selfies and also represented the position against AI. There were more questions than answers in this case.

There is currently no specific law (either in India or overseas) that addresses the important topic of "Who possesses the IP rights for a substance made by their invention?" According to current laws only humans constitute creators, and therefore, IPR holders and violators. This calls into question the need to assess how these AIs will be used in the future. In relation to the work produced by AIs, it has also brought up several obligations.

The anticipated use cases for the next iteration of AI include more real-world scenarios without data access. In order to make judgements that take into account the long-term benefits, intelligent beings must instead learn for themselves via trial and error. Thus, the next generation of artificial intelligence, which is still being completely realised in practice, would be more autonomous and sophisticated in its decision-making.

Global legislations governing AI

It is urgently necessary to govern AI before there is anarchy because of its immense future relevance. Nearly every aspect of our lives will be impacted by AI, which has risks and liabilities of its own. Since these AIs have such a tremendous amount of data storage space, it is also possible to manipulate and misuse them. As a result, it is necessary to decide on a person's ownership and culpability. IPR is a term that represents a person's ownership of a piece of work and its originality.

In the future, locus standi will become an even more challenging aspect in the case of IPR. Even developed countries have not been able to change the current AI and IPR predicament. However, the courts in these nations have recognised the existing facts and pronounced verdicts on the problems.

United Kingdom
The Copyright Designs and Patents Act, 1988 (the CDPA) defines the intellectual property (IP) rights of a creator, i.e., the person who makes or develops an invention. The inventor of the machine, who must be in direct control of the machine's AI-assisted operation in order to own the IP rights under the CDPA, is the owner of anything created by an AI or machine.

The person creating the game plans through which the work (AI) is generated will be the owner of the IP rights in cases when the content is produced by AI without the involvement of a human creator. As a result, AI is not considered to be a creator under UK law.

United States of America
The original expression, not the ideas that underlie it, is protected by the Copyright Act in the USA. A copyright needs "an original work of authorship," according to the Act, but there is no specific provision for the protection of AI data. Because the author has been considered by US courts as a person or human being, there must be human involvement in the creative process when utilising AI to provide copyright protection. The artificial intelligence (AI) that is being deployed is thought of as a tool for copyright.

In China, artificial intelligence (AI) is encompassed within the scope of intellectual property protection, which extends to both algorithms and associated data. Under Chinese legal provisions, AI's copyright safeguards not only the specific expression of algorithms but also encompasses the compilation of data integral to AI functionality. To protect the fundamental concepts and innovations within AI, the recourse often taken is through the patent system. Specifically, AI algorithms are safeguarded through invention patents rather than utility model patents.

China has effectively established a robust framework for the protection of AI-related intellectual property rights (IPR). Nonetheless, certain ambiguities persist, particularly concerning issues of ownership, particularly in scenarios involving multiple stakeholders.

Japan has made significant progress, In terms of IPR-based AI regulation. In order to identify issues and consider potential solutions in the future, it developed the "AI Strategy 2019 AI for Everyone- People, Industries, Regions and Governments (2019)". Also, it amended Articles 30-4, 47-4, and 47-5 of its Copyright Act to provide flexible limiting measures for emerging technologies like the IoT and AI. The database is further protected by Article 12-2 (1) of the Copyright Act, which provides that even if the entire database is protected, the author's rights of a work that is a part of that database would not be impacted.

However, there are still ambiguities with respect to ownership of data, and the issues relating to patent detenue still need to be addressed.

In India, a great deal of technological progress including AI is woven into the development paradigm. AI is increasingly being used in retail as well, not just in social media or the entertainment industry. The nation saw an acute digital transition, from internet shopping to the adoption of online automobile services. Since India is still developing and has to enhance its fundamental infrastructure, the problems there are significantly greater. In India, copyright and patent laws are well-established. However, there is no explicit law or rule that governs AI in particular.

The current legal framework, which is based on outdated intellectual property categories, does not take artificial intelligence into account. Computer programs, business practices, and mathematical formulae are not regarded as patentable innovations under the Patents Act of 1970.

Further, the definitions of "patentee" under Section 2(p) of the aforementioned Act and "person interested" under Section 2(t) of the same Act make it difficult to include AI under its purview. The Act expressly excludes the patentee of any other individual who is interested in becoming human.

Two fundamental doctrines the Sweat of the Brow Doctrine and the Modicum of Creativity, are used to define the uniqueness and individuality of a work under the Copyright Act. The Sweat of the Brow Doctrine's primary tenet is that an author can claim copyright for his or her work by just being diligent. It's not required to be inventive or innovative. According to Modicum of Creativity, a work that exhibits a high degree of originality and discernment is considered original.

In the case of Eastern Book Company v D.B. Modak, Indian jurisprudence embraced the "modicum of creativity" test, affirming that computer-generated works can indeed meet the criterion of originality. It was also acknowledged that AI can, to some degree, contribute to this "Modicum of Creativity." Given that the doctrine recognizes that a minimal level of creativity suffices, the original output generated by AI can find a place within this framework.

However, it's imperative to consider that copyright entitlements are vested in the "author" of the work, as stipulated in Section 2(d) of the Act. The term "author" in this legal context has been construed to exclusively encompass natural or juridical persons, thus circumscribing the extent to which machine-generated content can be safeguarded under this statute.

The current legal framework and regulations do not align with the evolving and prevailing dynamics of technology. In a nation with the second-largest population, where the majority of individuals engage with social media platforms and online commerce, it is imperative that the legal framework adapts to the changing era. Emerging technologies, such as Amazon's AI product 'Alexa,' now serve as security mechanisms for residential door locking. In cases of AI-related failures stemming from confusion or misinterpretation, pertinent questions arise, including the issue of liability attribution.

Can liability be transferred to the end user? Additionally, any novel invention founded on the same algorithm or concept has the potential to impinge upon the rights of the original proprietor, constituting a significant concern. On one hand, this can dissuade entrepreneurial endeavors and innovation, thereby undermining the fundamental purpose and essence of Intellectual Property Rights (IPR). On the other hand, it may trigger a cascade of legal disputes and disarray within the IPR domain.

Even if nations were to reach a consensus on bestowing copyright protection upon creations generated by artificial intelligence (AI), the issue of copyright ownership remains enigmatic and theoretical. This ambiguity stems from the prevailing legal framework, which necessitates the existence of legal personality for the holder of rights. An AI inherently lacks such legal personality unless its creator is granted the authority to act on its behalf in legal matters.

WIPO's consideration of AI

In a study released in 2019 by the World Intellectual Property Organisation (WIPO) on patent application and grant trends, it was noted that there has recently been an increase in AI-related applications in the areas of telecommunications, transportation, and life and medical sciences. These patents covered innovations in speech recognition, computer vision, and natural language processing.

In December 2019, WIPO put out a preliminary Issues Paper on IP policy and AI and began a public consultation process to solicit views in order to identify the most critical issues that IP policy makers would likely confront as AI gains in significance. During the consultation process, more than 250 responses were received. A new Issues Paper on IP policy and AI was released in May 2020 after taking into consideration the comments received. The Revised Issues Paper's themes were thoroughly examined during the WIPO Conversation's second and third sessions, which took place in July and November of 2020, respectively.

The most recent session convened by the World Intellectual Property Organization (WIPO) in September 2023 centered around the discussion of the WIPO tool titled "The Role of Intellectual Property Rights in the Fashion Industry: From Conception to Commercialization." This tool's development and implementation were situated within the framework of the Development Agenda (DA) Project, specifically addressing the objective of "Promoting the Utilization of Intellectual Property in Creative Sectors within the Digital Age" across four nations: Chile, Indonesia, the United Arab Emirates, and Uruguay.

This tool emphasises the intellectual property rights-copyright, patents, designs, trademarks, and trade secrets-that are most pertinent to the fashion industry and describes how to utilise them throughout the lifespan of a fashion product. It acts as a helpful tool to help fashion designers and merchants map out these important intellectual property rights in order to protect their interests and monetize their creative endeavours. It also describes their function and value in the efficient operation of micro fashion and design firms.

With an estimated value of 759.5 billion United States dollars, the fashion industry assumes a pivotal role in propelling global economic growth and represents a significant source of tax revenue and employment opportunities across numerous jurisdictions. The provided tool discerns and emphasizes a clear distinction between counterfeits and knockoffs, recognizing the necessity for a customized approach to address the unique threats posed by each category to both businesses and fashion designers.

The fashion industry has many different subsectors, but this tool concentrates on the main ones, including garments, garment and textile designs, as well as handbags as a prominent category of accessories. Each industry has a unique collection of IP rights that must be protected, and at particular stages of a fashion product's lifespan, each IP right may be ideal for securing a different aspect of the product. As a result, the tool focuses at the IP rights that may be adopted to safeguard intellectual property at the pre-launch conception and development phase, which is the first stage of the life cycle of a fashion product.

The examination of the post-launch commercialization phase's IP panorama ensues, defining the pertinent IP rights and their function at that stage. The tool's risk mitigation map of third-party intellectual property rights is provided as an afterthought for businesses to take into account before developing and introducing a new fashion merchandise. There is also a checklist that gives firms in the fashion sector a quick rundown of the most important IP-related concerns to take into account during the course of a fashion product's longevity.

AI is now an integral part of our lives, with systems like Siri assisting us with everyday tasks. While some AI systems are limited, others, like the "Creativity Machine," used by the US military to design weapons are capable of original thought and reasoning. We must prepare for more advanced AI systems that can simplify human existence. Recently, Sophia, a sociable humanoid robot, became the first robot to be granted nationality in any nation when she acquired Saudi citizenship. This marks the beginning of a new era where robots could be citizens. We must accommodate these revolutionary developments in society and the law. The future will see AI systems no longer considered just machines, and denying them the protections afforded to citizens would be a violation of their rights. Incorporating robots, machines, and AI systems is crucial for future inclusive growth, as we move towards a world powered by AI. The new world renaissance is now necessary.

Governmentally enacted laws must be constructed to enable us to benefit from technology without jeopardising our rights. The Supreme Court of India examined the idea of the juristic person as part of a landmark decision (Shiromani Gurdwara Parbandhak Committee V. SomNath Dass and Others), and determined that there are no theoretical limitations on what types of legal personality can be granted. This decision allowed for changes that allowed for the establishment of a legal entity in which AI could co-own the invention.

For instance, Canada has created a metric known as the Intellectual Property Concentration Index (IPCI) to track the frequency of assignees from particular countries patenting AI concepts over time. By utilising the distribution of patents owned by India in a market or industry, the development of such an index may be used to gauge the degree of competitiveness of that market or industry.

Future AI ownership of intellectual property cannot be ruled out, thus nations will need to evaluate their IP laws and integrate a new aspect or market sector in their framework. However, the law will need to reinterpret ideas of ownership, inventorship, and who may be given an IPR before AI can thrive as IP owners. Understanding algorithms and setting them apart from AI engineers is also crucial.

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