Impact of Artificial Intelligence on Intellectual Property Protection as well
as Rights in Intellectual Property
By- Vibhuti Sharma, Intern, Seth Associates
Keywords- Artificial intelligence, cyberlaw ,intellectual property law, cybersecurity
What is Artificial Intelligence (AI)
Artificial intelligence (AI) is an emerging new technology that uses computer intelligence to carry out various tasks like finding information, identifying the changes and patterns to interpret the information, make decisions based on the information and to carry out all these tasks, artificial intelligence uses technology like computer programs, algorithms, and statistical models.
With time, artificial intelligence (AI) is evolving at a high rate and is continuously developing new skills to produce better results where human intelligence is required.
The evolution of artificial intelligence is having an impact in almost every aspect, such as in the field of innovation and the development of new products and programs. With this innovation and development, the question of ownership comes into focus, which leads to intellectual property rights (IP) protection.
Introducing Intellectual Property (IP)
Intellectual Property is a work created by the human intellect, like pieces of literature, inventions, art, designs, and new ideas for commercial purposes. Copyrights, patents, and trademarks are some of the legal work under IPR to protect the ownership of their work and can make commercial profit and notoriety from their work.
Evolution of Artificial intelligence (AI)
With the first industrial revolution, the structure of the economies and society changed due to the technical advances because of the way the inventors adopted to develop new innovations and construct their own creations. Artificial intelligence has changed the way inventors create work. Artificial intelligence tools like ChatGPT allow people to get sophisticated responses that are similar to humans, and these responses are generated after analysing the vast amounts of data incorporated into these AI tools. Artificial intelligence is also useful in the growth of the economy, and this is evident by the estimate provided by the UK government about the country’s economy, according to which there was an increase in the country’s economy by £3.7 billion as compared to the last year. With this, interest in AI has increased significantly, which has led to increased funding and, therefore, the rapid growth of AI.
Artificial Intelligence’s Impact on Intellectual Property Rights (IPR)
These innovation findings will enhance our interactions with technology and the internet. However, there are also serious potential concerns since most AI products on the market have not yet been thoroughly investigated and have little to no regulation in place due to the speed at which technology is advancing.
In 2021, the European Commission (EC) proposed The Artificial Intelligence Act to promote European AI developers to safeguard the user and maintain transparency of their work. The Act has classified AI apps into three categories that are unacceptable, high-risk, and non-high-risk.
With the evolution of AI, the laws governing the working of AI need to be revised according to the needs of society and the various threats that could arise in the near future, particularly from Generative AI. Laws should be such that they don’t hinder progress. That is, they should not be overly restrictive to cause sudden disruption.
The Artificial Intelligence Act of the European Commission also protects AI generated work and intellectual property rights. This is akin to conventional IPR rights and based on similar principles .
Similarly, the UK has few laws designed to protect intellectual property from AI-related threats. The UK government continued to safeguard computer-generated works under UK law last year after opening a consultation on whether or not these works created by computers without human authors should be protected under copyright laws. A hearing officer of the United Kingdom’s Intellectual Property Office ruled (BL O/741/19) on December 4, 2019, regarding whether DABUS, an artificial intelligence, may be recognised as an inventor under Sections 7 and 13 of the Patents Act 1977. The application was turned down. This decision aligns with similar positions taken by other IP offices across the globe.
Chinese courts have determined that, in certain circumstances, AI-generated content may be protected by copyright where human input is somewhat involved in creating the original work.
Creating new works, including music, literature, and visual art, is one of the main uses of AI in intellectual property law. AI can produce unique works that are on par with those written by humans. AI serves not only to produce new works but also to analyse vast amounts of data in order to find trends and insights that may be applied to intellectual property.
With the rapid development of AI, every person can get access to information easily and can generate their own work through AI, which does bring variation in the work of different people and results in a threat to the holder’s right to intellectual property under the ongoing regulations which has shown the concern regarding the ownership, authority, and copyright infringement. The main concern is to what extent the AI may change the notions of Intellectual property rights (IPR) and how we can uphold the IPR with the AI, i.e., how to bring about a balance between the IPR and AI as numerous ethical and legal issues arising due to the application of artificial intelligence to intellectual property.
Legal challenges posed by Artificial Intelligence (AI) on Intellectual Property (IP)
The main legal issue AI has posed on IP is regarding the ownership and authority of AIgenerated work. AI uses computer intelligence to create creative and unique inventions, innovations, or any other piece of literature and art, giving a human touch as it was created by human intelligence. Whenever these works are generated by AI, it is important to assess in whom will the ownership lie.
Under intellectual property law, it is considered that the person who is the creator of the work is regarded as the owner, and he is entitled to all the benefits from the work and all the rights and protection related to the work. However, in the case of AI-generated work, it is unclear who the creator of the work is and to whom the rightful ownership should be given.
In M/S Kibow Biotech v. M/S The Registrar of Trade Marks1, the Delhi High Court held that according to the Registrar of the Trade Marks, the AI system cannot be considered as the owner of the trademark. The court further added that only a person can apply for and be registered as the proprietor of the trademark under the Trade Marks Act, 1999, and in this, the AI system is not included in the definition of the person.
In Ferid Allani v. Union of India2, the Delhi High Court assessed the right of AI-generated work under the Copyright Act, 1957, that AI-generator work can get copyright protection in India if they satisfy the requirement under the Copyright Act, 1957, for authorship and originality. Even programmer should be given the credit for their work to create an AIgenerated work.
- 2023 DHC 137.
- WP (C) 7 of 2014.
The Court considered the songs that were generated by the algorithm, which is used by the AI system, to see whether they could be considered to be the work of the original composition. This question was solved by the Delhi High Court in the case of South Asia FM Limited v. Union of India3, where the court held that the work that lacks human creativity is not qualified for copyright protection under the Copyright Act, 1957. To apply for copyright protection, it is important to have a human element of creativity and originality.
Now, recognition is given to AI-generated work; for example, now, in the US, laws are passed for copyright protection produced by computer intelligence, i.e., artificial intelligence (AI). But again, there is a debate between AI-generated work and the work generated by human intelligence, whether the same protection is to be provided to both works under the intellectual property law.
Under Application No. 16/524,350, a decision was taken by the United States Patent and Trademark Office that under the US patent, an AI system cannot be considered a creator and be given credit for their invention according to the rule under USPTO (United State Patent and Trademark Office).
Similarly, in the Eastern District Court of Virginia in Hirshfeld v. Thaler4, the US District Court upheld the USPTO’s decision not to consider the AI system as an inventor.
Another concern in the field of intellectual property regarding artificial intelligence is the misappropriation and revelation of the trade secret. In an AI system, a large set of data is analysed, which could lead to the disclosure of trade secrets and threats to them, as anyone can get access to them through AI, and after that, it is difficult to identify and prosecute intellectual property rights. This challenge has arisen because AI creates work that is similar to each other, making it difficult to detect cases of copyright or trademark infringement.
In Gaurav Bhatia v. Union of India5, the Delhi High Court ruled that AI-generated ideas can be patented under the Patent Act if they satisfy the following conditions: non-obviousness, novelty, and industrial applicability.
- P. Nos. 21810 to 21815 of 2015.
- 558 F. Supp. 3d 238 (E.D. Va. 2021). 5 CS (OS) 274/2024.
However, in Nippon Steel Corporation v. Union of India[1], the Bombay High Court ruled that discoveries and inventions that are produced by AI cannot be protected as they lack human creativity.
Other impact of AI
Besides the impact of AI on IPR, it also impacts other rights, such as the right to privacy. In Justice K.S. Puttaswamy (Retd.) v. Union of India[2], the SC considered the right to privacy as a fundamental right under the right to life and personal liberty under Article 21. AI could infringe on this right to privacy by analysing and processing data.
In Internet Freedom Foundation v. Union of India[3], it held that face recognition leads to the infringement of privacy and, hence, has to be subjected to safeguards.
Required changes in IPR with the emergence of AI
As AI is becoming increasingly involved in today’s world, changes in the IPR Act are required to tackle emerging challenges in patents, copyrights, trade secrets, and trademarks.
Sections which are needed to be amended are:
Section 17 of the Copyright Act: According to this section, the creator of the work should be the owner. This section needs to be amended to clarify the position of AI-generated work.
Section 3(k) of the Patent Act: This section addresses the invention of the computer program, stating that there will be no patent for these works; this section should also be reviewed to give patent rights to AI-generated work.
Section 9 and 11 of the Trademarks Act: Under section 9 and 11 of the Trademarks Act, grounds are given according to which registration under the Act for denial. These sections also need to be amended to give way to the AI-generated work so as to recognize the AI-generated work.
Section 2(1)(a) of the Trade Secrets Act: Trade secrets need to be defined properly so as to comply with AI generated data.
Section 53 of the IPR Act: IPR deals with intellectual property rights, and these laws need to be amended so that they can tackle the problem due to AI and effectively detect and enforce the IPR on AI-generated work.
With the evolving AI, intellectual property laws also need to be altered, with the changing effect of AI on the work for ownership, originality, and uniqueness, as they pose new threats to the rights of the people.
Hence, appropriate amendments ought to be made in laws to protect AI-generated work interms of intellectual property laws.
Bibliography
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https://www.wipo.int/edocs/pubdocs/en/wipo–pub–econstat–wp–77–en–artificialintelligence–and–intellectual–property–an–economic–perspective.pdf
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- Sam Tobin. “UK Supreme Court hears landmark patent case over AI ‘inventor’” Reuters, 2 March 2023, https://www.reuters.com/technology/uk–supreme–court–hearslandmark–patent–case–over–ai–inventor–2023–03–02/
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UK vs US.” Lexology, 12 July 2023,
https://www.lexology.com/library/detail.aspx?g=a9b81aa1-7243-4f03-890c7d29f5ccbdd7
[1] W.P. (C) 801 of 2011.
[2] 2019 (1) SCC 1.
[3] Writ petition (civil) No. 44 of 2019.