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In the words of the then WIPO Director General Mr. Francis Gurry (from 2008 till 2020), “Artificial Intelligence (AI) is a new digital frontier that will have a profound impact on the world, transforming the way we live and work”. Reinforcing the rationale, the McKinsey Global Survey on artificial intelligence (AI) conducted in 2020 suggests that business organizations and government machineries across the globe are using AI as a tool for generating value like never before !
However, in many ways, AI is still in its nascent stages of growth. The historical development of AI began with the Dartmouth Summer Research Project on Artificial Intelligence (DSRPAI) hosted by John McCarthy and Marvin Minsky in 1956. John McCarthy, who coined the term in 1956, defines AI as “the science and engineering of making intelligent machines.” Since then, AI has witnessed several vicissitudes of fortunes and changes. A couple of ‘AI Summers and Winters’ intertwined between tenures of high hopes and precise funding characterized the development of AI and technological advances till recent times. Nevertheless, the current boom that we are experiencing had started not more than 9 years ago (from 2021), as a culminating effect of elevated levels of data availability coupled with unprecedented rise in computational powers of digital entities.
Even though an exclusive definition of AI is not monotonously used by Scientists and Practitioners at a larger scale, the term ‘Artificial Intelligence’ (AI) can be considered as a generic bevy implying the inherent general-purpose ability of a digitized processing entity (eg. a computer-controlled robot) to perform tasks commonly associated with intelligent beings or even plausibly surpassing their quotidian scope of things. The technological advancements in robotics, sophisticated machines and other manifestations of AI are set to unleash a novel Industrial Revolution, with AI being at its center-stage. A recent study report estimates that the worldwide market size of AI-based industries was approximately $39.9 billion in the year 2019 and it was gauged to be around $62.3 billion in the year 2020. It further enunciates that a growth rate of 42.2% can be surmised from 2020-2027.
Role of AI in IPRs
The fundamental goal of the IP system is to encourage innovation through new technologies and creative works. This includes human created as well as AI created, inventions and works. AI also provides a general use technology to assist in the application, management and administration of IP systems and tools. Superior data quality in IP search engines for computational, analysis and prediction purposes is quintessential for eliminating the mistakes, inaccuracies, inefficient data and processing the data in a cleansed manner.
WIPO has implemented and continues to develop its own IP management services and tools using AI technologies. For example, the WIPO Translate tool and the WIPO Brand Image Search tool uses AI-based applications for automated translation and image recognition. Another tool called IPCCAT-neural has been developed by WIPO in collaboration with University of Geneva for aiding the prior-art search for the examiners in the IPC system. In the private domain, TradeMark Now, ANAQUA Studio, etc. are some of the platforms utilizing AI related technologies for enhancing performance of the application. The integration of artificial intelligence has removed the traditional practices of patent search methods that were previously adopted for obtaining patents and other IPRs protection.
In recent times, the role of AI technologies is slowly tilting from being mere facilitators of technological advancements to actually being creators of IP. For example the Oral-B toothbrush and other accomplishments of the ‘Creativity Machine’ designed by Stephen L. Thaler, the NASA antenna, achievements in the field of genetic programming reported by John Koza, and AI applications in drugs discovery and development – all point towards the unfathomable reality that AI technologies can be creators, per se. This has ushered in a new era where machines and software have an “intellectual” capacity of creating and inventing. Hence, the field of IP Law has been influenced by this new world of intellectual creations that are not strictly shaped by human beings. AI challenges traditional notions of authorship and inventorship and some aspects of copyright and patent systems collide with AI-generated outputs.
AI-technologies and ownership of IPRs
Michael Bess, the popular historian of science at Vanderbilt University and the author of Our Grandchildren Redesigned: Life in a Bioengineered Society once said that “What’s most striking about us as humans is that we are unpredictable in very basic ways. We’re more complex than we can fathom, and there’s something about us that is the opposite of artificial. It’s the opposite of something made” However, as noted earlier, AI has advanced so much that it can now perform on its own, the many facets that define human intelligence and nature like creating art, literature and many more things.
However, the major question of “Can machines own intellectual property rights?” still remains unanswered and debatable with respect to the current legal regimes. Following is a review of the various types of IPRs and their current status with respect to ownership for AI based technologies.
Patents
The world seems to be divided on the issue of assigning inventorship rights to a patent application having AI named as an inventor. Recently, two patent applications naming DABUS (“Device for the Autonomous Bootstrapping of Unified Sentience” created by Stephen Thaler) were refused by the European Patent Office (EPO) on the grounds that they did not meet the legal requirements of the European Patent Convention (EPC 2000), as the inventor must be a human being and not a machine. However, the applicant stated DABUS as the inventor, as it was the machine that made the inventions and recognised the novelty of its own idea before any natural persons. The applicant claimed that “inaccurately listing a natural person as inventor would be misleading to the public”, and therefore contrary to the principle that the applicant must indicate the actual inventor of the invention. The same patent application was also refused by the USPTO.
However, in April 2020, the same AI program DABUS was granted a patent by the South African patent office. Further, the Federal Court of Australia recently held in Thaler v Commissioner of Patents [2012] FC 879 (“the Thaler case”) that an AI system can be named as an inventor in a patent application.
In India, the usage of the term ‘person’ makes it clear that AI systems cannot file for patents in India under the Indian Patents Act, 1970. Only a person can file such an application. Though the patents granted for IN239319 and IN228347 include the use of the term ‘AI’ in their claims, it is used to represent only a fraction of the invention that works upon the data/commands provided by the AI system. Moreover, it is pertinent to note that no explicit focus is being made on the mode of the AI-system component vis-à-vis the invention in its entirety.
Copyrights
Artificial intelligence is already being used to generate works in music, journalism and gaming. However, many argue that these works could in theory be deemed free of copyright because they are not created by a human author.
While conferring copyright in works generated by artificial intelligence has never been specifically prohibited, however, there are indications that the laws of many countries are not amenable to non-human copyright. In the United States, for example, the Copyright Office has declared that it will “register an original work of authorship, provided that the work was created by a human being.” Further, in Europe, the Court of Justice of the European Union (CJEU) has also declared on various occasions, particularly in its landmark Infopaq decision (C-5/08 Infopaq International A/S v Danske Dagbaldes Forening), that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.”
In countries like Hong Kong (SAR), India, Ireland, New Zealand and the UK, authorship of works created using AI technologies is conferred to the creator of the program. In India, Section 2(d) (vi) of the Copyright Act, 1970 lays down that in cases wherein an artistic work is computer-generated, then the author of such work shall be the person who causes such work to be created. The usage of the term ‘person’ is specified as either a human being or an organization/association consisting of human beings as per the Indian jurisprudence with respect to IP laws. Therefore, since artificial intelligence is not considered as a person, even if AI creates a copyrightable work, the protection for such rights shall be conferred on the person causing it to be made and not the AI system.
Trademarks
To date, there is only one proper case regarding the interaction between Artificial Intelligence framework and trademarks. In the case of Cosmetic Warriors and Lush v Amazon.co.uk and Amazon EU (2014) the court has reprimanded Amazon for infringing upon the Lush trademarks. Amazon brought the keyword Lush and whenever the word “Lush” is searched on Google it redirects the customer to the Amazon website. Even if the Lush word is searched on Amazon’s website, the AI of the website is suggesting related products to the lush products but not exactly the Lush products.
The United States Patent and Trademark Office (USPTO) is now calling for comments on how to treat AI-related applications. In India, under the Trademark Act, 1999 the entity owning a trademark is not specifically defined. However, a registered proprietor under section 2(v) and registered user under section 2(x) has been defined as per which only a person can register a trademark or be a registered user under the Act.
In a nutshell, the complexity of legal issues surrounding the grant of inventorship to AI technologies is going to increase as artificial intelligence gets more creative, wise and technologically competent. The distinction between IP created by a human and that made by a computer is only going to blur and diminish over time. In the words of Justice Beach: “We are both created and create. Why cannot our own creations also create?”