India: Regulatory Framework for Artificial-Intelligence - A Need of the Hour?

Last Updated: 3 July 2017
Article by Rahul Sharma

Artificial intelligence (AI) refers to the development of computers that are able to do things, which normally requires human intelligence, without any human intervention at all. The AI is achievable owing to advances in "Deep learning" or "Machine Learning", in which neural networks are fed information that is used by a computer to make decisions, train itself and adjust based on what it has learned within specific parameters. Such iterations based learning approach is propelling AI forward, thereby attracting major investments into the domain.

In other words, AI based technologies are just now becoming a regular norm and omni-present. The data needed to "teach" computers exists and the storage and processing power to execute deep learning are readily available more than ever. Due to the worldwide need for analyzing massive sets of data, and incredibly complex problems pending for resolution across the world, AI proves to be a strong contender as an antidote to achieve something which possibly could not be accomplished through human ingenuity all alone.

The evolution of an AI based expert-system kick-starts with engineers creating a problem statement and inputting goals and constraints. Then, machine-learning algorithms based on neural network and cloud-computing powers are employed to traverse thousands of options, yielding solutions that no human alone could have envisaged. Examples include providing recommendations for the user based on an existing collection and patterns of consumption. In another example, an expert system might be used to help with the interpretation of measurements in an engineering context.

Naturally, the impact of AI upon the Intellectual Property (IP) rights is a matter of substantial interest. A subject-matter or technical field surrounding the AI is generally: a computer system that seeks to emulate the decision making of a human expert, based on knowledge and a system of inferences. Such systems can be used to assist a human, or as a substitute for consulting with a human subject matter expert.

Accordingly, in an attempt to protect AI as "IP", the same rules on what may be patentable with regard to "computer programmes" may be applicable. AI expert systems that are applied in a technical-application are likely to be patentable, provided that the features that make them work are novel and inventive. In an example, the EPO's criteria of assessment of an invention's technical character and a technical effect emanating due to redressal of technical-problem can be used as a yardstick for determining patentability of AI based inventions. Regard may be had the EPO defines technical effect as effects that go beyond the normal functioning of a computer. If the AI based invention complies with the EPO's requirements, a probability of grant becomes manifold in Japan, China, US and India as well.

However, the AI based inventions are often confronted with uncertainties. Who is supposed to be the owner of the invention and subsequent rights holder- a) an innovator who devised the algorithm, or b) a newly created artificial expert system that has evolved due to iterative learning as continuously exhibited by the algorithm? A hypothetical scenario may be presented as follows:

Company A develops an AI program or machine, which is assigned to Company B. Company B operates that AI on resources owned by Company C, such as network infrastructure in a computing environment. Company B also obtains data from Company D that is used to train the AI as a part of iterative learning. Having undergone iterations, the AI now produces an invention without any human intervention – so who accordingly shall be considered as the inventor of the invention?"

Another uncertainty is the AI acting as an infringer with respect to a granted patent. During the course of machine or deep learning, it's quite feasible that an AI based expert system might infringe a patent. How to determine who is the infringer in absence of any human collaboration?

Similarly, how can one determine who induced the infringement? As per current legislations, an alleged inducer "must have wilfully aided another's direct infringement of a patent. Can the AI based expert system be contemplated as wilful infringer or inducers?

Likewise, the uncertainty prevails in terms of tort law as well. With growing adoption of artificial intelligence in products, machinery, and systems, there is concern about who bears responsibility for injury or loss caused by AI. As AI systems learn new behaviours with the intent of improving efficiency or other pre-defined goals, who may be held liable for unintended consequences? In most cases, liability is only assumed if it is proven that the manufacturer showed negligence or could foresee harm. For example, a robotic system injuring an industrial worker is still not considered negligence in case the manufacturer followed all applicable regulations and mishap happened merely due to the learned algorithm accidentally taking a wrong decision without any human intervention.

Conclusion

Artificial intelligence indeed has the capacity to increase the pace and scope of innovation to meteoric or exponential levels. Yet, without explicit guidelines and/or sui-generis legislations to establish culpability for actions performed in conjunction with AI, AI based expert systems may continue to repeatedly infringe the existing patents and still roam scot-free. As per the current laws, a machine or algorithm can't be charged for committing patent infringement or other crimes and hauled into court.

The current laws continue to hinge on the premise that 'culpability' has to be established with the party responsible for the use of the AI. Such responsibility is often shared among several entities in a complex and disputable manner. Owing to the aforesaid uncertainty in establishing the patent-rights ownership and infringement, the establishment of culpability remains arduous and prone to invite controversy. 

Accordingly, the need of the hour is a greater oversight and enactment of regulation as well as protection for the AI based technology. If legislators don't act quickly, unprotected and unregulated AI based expert systems could lead to an unforeseen catastrophic erosion of existing IP across the world.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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