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
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
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 AIIn 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
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 AIIt 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.
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
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
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
WIPO's consideration of AIIn 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
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
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
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