INTRODUCTION
Artificial intelligence (AI) has emerged as a catalyst for innovation across diverse sectors, reshaping traditional paradigms and challenging existing legal frameworks, particularly in intellectual property (IP) laws. In India, where the legal landscape governing copyrights and patents has evolved incrementally over decades, the advent of AI presents both opportunities and complexities. AI's ability to autonomously generate creative works raises fundamental questions about authorship and ownership under the Indian Copyright Act. Similarly, in patent law, AI's role in innovation confronts established norms regarding inventorship and patentability criteria. This essay explores these intricate dynamics, examining recent legal precedents such as the DABUS and RAGHAV cases, which have underscored the ambiguities surrounding AI's legal standing. Furthermore, it analyzes how AI integration has streamlined patent examination processes, enhancing efficiency while posing challenges to traditional IP concepts. As India navigates this transformative intersection between AI and IP, the need for adaptive regulatory frameworks becomes increasingly urgent to foster innovation while ensuring robust IP protections.
WHAT IS AI?
Artificial intelligence (AI), which has been in development since the 1950s, refers to computer systems capable of performing tasks that typically require human intelligence. This technology has found applications in diverse fields such as healthcare, finance, transportation, and more, revolutionizing how tasks are automated and problems are solved. Its profound impact on society raises crucial questions about ethics, governance, and its intersection with intellectual property laws.
INTERSECTION BETWEEN IP AND AI
Technology's role in today's innovation landscape is both essential and inescapable. While technology is crucial for modern advancements, it has diminished—and in some cases, nearly eliminated—the need for human input. This creates a distinctive challenge: distinguishing between creations produced by software programs and algorithms and those resulting from human effort. This creates significant difficulties in the current market scenario, where ownership of IP is considered to be of utmost importance as it is a clear indication of the growth trajectory of a business. The main point of contention which arises in ownership debates is whether IP rights can be extended to non-human contributors like software, algorithms, etc. Currently, Indian IP law does not explicitly address the recognition or ownership of these digital tools, whose contributions are, in many cases, integral to the invention or work being created.
AI AS A CREATOR
1. AI's influence in generating inventions (Patent Law)
Patent is one of the of Intellectual property rights exclusively granted for an invention. Before granting a patent, the invention must satisfy certain conditions or tests and in case of India it is granted only after the invention qualifies the NUNS test. The principles of this test are reflected in the definition of invention given under Section 2(j) of the Patents Act, 1970.
Novelty: The invention must introduce a new element not previously known in its technical field, known as "prior art."
Utility: The invention must be practically useful and applicable in an industrial or business context
Non- Obviousness: It must involve an "inventive step" that is "not obvious to someone with ordinary skill in the field".
Subject Matter: The invention must fit within the scope of patentable subject matter defined by law. This normally means inventions with do not fall under the categories mentioned under Section 3 and Section 4 of the Patents Act, 1970.
Currently, neither the Patents Act, 1970 nor any other Indian legislation clearly specify whether inventions by an AI are eligible to get patents or not. Ignoring that and looking solely through the criteria of NUNS test, the implications could be:
Novelty: An invention must be new, meaning it must not have been disclosed to the public before the date of filing. AI-generated inventions can meet this criterion if they introduce a novel feature or concept that has not been previously disclosed. However, the challenge lies in the prior art search, as AI can process and generate vast amounts of data, potentially increasing the difficulty in ensuring the novelty of AI-generated inventions.
Utility: The invention must be useful, meaning it must have a practical application or be capable of industrial use. AI-generated inventions, like those developed by human inventors, can meet this criterion if they provide a tangible benefit or solve a specific problem. For example, AI-driven advancements in medical diagnostics or autonomous vehicles can demonstrate clear utility.
Non-obviousness: The invention must not be obvious to a person skilled in the relevant field. This criterion can be challenging for AI-generated inventions. Since AI can analyze extensive datasets and derive insights that may not be apparent to human experts, the threshold for non-obviousness could be more stringent. Patent examiners must carefully evaluate whether the inventive step involved is genuinely non-obvious or if it could have been deduced by a person with ordinary skill in the field, considering the AI's capabilities.
Subject Matter: The invention must fall within the scope of patentable subject matter as defined by Indian law. Section 3(k) of the Indian Patents Act excludes "mathematical methods, business methods, computer programs per se, and algorithms" from patentability. Therefore, AI-generated inventions that are purely algorithmic or software-based may not be patentable. However, if an AI-generated invention provides a technical advancement or solves a technical problem, it may be considered patentable under the Computer-Related Inventions (CRI) guidelines.
In conclusion, while AI-generated inventions can potentially meet the NUNS test of patentability in India, they present unique challenges in assessing novelty, non-obviousness, and subject matter eligibility. The Indian patent system must evolve to address these complexities, ensuring that AI-driven innovations receive fair and appropriate protection.
Application of Patents for inventions created by AI
Section 6 (a) of the Patents Act states that "an application for a patent for an invention may be made by any person claiming to be true and first inventor of the invention". But it is not clarified whether an AI can be put under this category.
Section 2(s) gives an inclusive definition of person stating that "person includes the Government". This definition due to lack of information does not rule out the possibility of an AI being treated as a person. According to Salmond a person is said to be a being whom the law regards as capable of rights and duties. This definition also finds support in the case of Som Prakash Rekhi v. Union of India & Anr .Going by this general definition the status of person cannot be granted to an AI as it cannot be accorded rights and liabilities due to it being just a simulation of human intelligence.
Further, the question whether AI can file application under Section 6(a) is also left unanswered by Section 2(y) as it just states who cannot be termed as a true and first inventor but is unclear on who can be considered one in case of an AI generated invention.
Furthermore, the 1959 Ayyangar Committee Report reveals the legislative intent behind the Patent Act, emphasizing the right of inventors to be acknowledged as such for a particular patent. The report emphasised on the moral rights of the inventors to be recognised also aiming to enhance the financial value they are legally entitle to. However, AI cannot enjoy the benefits intended by this legislative framework, nor can it claim moral rights or enforce protections under current Indian laws.
The DABUS Case : Patent application by AI
DABUS case also known as the case of "Stephen L Thaler v. Comptroller General of Patents, Design and Trade Mark" was one of the initial cases in which patent application was filed in case of AI generated invention. The issue arises from two patent applications, GB1816909.4 and GB1818161.0, filed by Thaler at the United Kingdom Intellectual Property Office (IPO) seeking patent grants. Thaler indicated in his application that he was not the inventor. Instead, he identified the inventor as an AI named "Device for the Autonomous Bootstrapping of Unified Sentience (DABUS)", and claimed the right to the patents as the AI's owner. In essence, Thaler argued that DABUS, being the inventor, had transferred its patent rights to him through ownership. This premise led to the question of whether an AI can be granted a patent, and subsequently transfer it. The IPO rejected the application, and the High Court of England and Wales, Special Patents Court, upheld this decision upon appeal.
Similar applications for the same were file by Thaler in various other jurisdiction and out of the only South Africa and Australia have recognised DABUS as an inventor so far whereas other jurisdictions including United States, United kingdom and European Union have declined granting patent to DABUS stating the requirement of inventor to be a natural person.
India: Thaler's application to receive patent by DABUS was also reject by the Patent Office in India. The Controller General of Patents raised objections against the AI-generated invention DABUS in patent application number 202017019068. The examination report objected to the DABUS patent application under Sections 2 and 6 of the Patents Act, 1970. The Controller General stated that the application failed to pass the formal and technical review because DABUS is not recognized as a person under these sections of the Act.
Decision taken by the patent office in this case coupled with ambiguities in Section 2 and Section 6 shows that currently patent cannot be granted to an invention created by an AI.
2. AI's Role in Creating Works (Copyright Law)
The Key question that arises in the age of AI and bots like ChatGPT is that whether the works authored by these bots can be copyrighted or not. Under the Copyright Act, 1957, Original Literary, Dramatic Musical and Artistic (OLDMA) works are considered to be eligible to get copyright protection. The most basic requirement for granting copyright to a work is it being an original work. However, this concept originality has not been explained anywhere in the Act and rather evolved through a set of judgements. These judgements over time have agreed to the rule of "Modicum of Creativity" to decide whether a work is original or not. This rule does not require the entire work to be created from scratch, nor does it mandate that the work be entirely novel.
The Doctrine of "Modicum of Creativity" says that a work is considered original when it demonstrates a certain level of intellectual creativity and judgment. While the creativity doesn't have to be extensive, there must be at least a minimal amount of creativity and judgment for the work to qualify for copyright protection. This doctrine was accepted by the Supreme Court in the case of "Eastern Book Company & Ors. v. D.B Modak & Ors".
If going just by criteria of Originality, an AI created work might be able to pass the test of modicum of creativity but In cases of Copyright problem arises in granting Copyright solely to the AI due to the definition of author given under Section 2 (d) of the Copyright Act, 1957. This provision states that "author in relation to any literary, dramatic musical or artistic work which is computer generated means the person who causes the work to be created".
The word "person" is not defined anywhere in the act but going with the general definition of person as also accepted by the Supreme Court in the case of "Som Prakash Rekhi v. Union of India & Anr", person means a "being whom the law regards as capable of rights and duties". Going with this definition, for an AI to be considered an author for a work it must be recognised as a legal entity by the law and until that is the case Copyright cannot be granted to an AI.
The RAGHAV Case: Copyright application for work created by AI
The Indian Copyright Office in 2020 encountered a problem of like nature when an artwork named "Suryast" created by an AI named RAGHAV was brought for copyright registration by Ankit Sahni, the creator of RAGHAV. Initially the application was rejected as RAGHAV an AI was solely listed as its sole author but later when a human was named as a co-author along with the AI, the same was granted. The copyright office subsequently realised its mistake and issued a notice to retract the registration seeking clarification for legal status of RAGHAV. This initial granting and later withdrawal of registration by the Copyright Office shows the ambiguity surrounding the eligibility of AI as an author under the Copyright Act.
In Navigators Logistics Ltd. v. Kashif Qureshi, the copyright claim was rejected on the ground of lack of human involvement when a complied list by a computer was submitted for protection.
Analysing the cases above and taking Section 2 (d) of the Copyright Act into consideration it can clearly be said that even if an AI exclusively cannot get copyright for works created by it, the person who caused the work to be created get can protection for the same provided "significant input" was provided by him to create the same.
CONCLUSION
The intersection of artificial intelligence and intellectual property law marks a significant milestone in the evolution of legal frameworks governing innovation. The DABUS and RAGHAV cases underscore the pressing need to address the complexities introduced by AI-generated works and inventions. As AI continues to redefine creativity and innovation, the rigidity of traditional IP laws becomes increasingly apparent.
Navigating this new frontier requires a nuanced understanding of both the potential and limitations of AI within the scope of IP protections. While the current legal landscape may struggle to keep pace with technological advancements, it also presents an opportunity for pioneering reforms that recognize and accommodate AI's unique contributions.
In essence, the dialogue between AI and IP law is just beginning, and it is clear that the future holds profound implications for creators, inventors, and legal practitioners alike. As we stand at this crossroads, it becomes imperative to strike a balance that honors the spirit of innovation while ensuring equitable recognition and protection. This dynamic interplay promises to shape the future of innovation law, setting the stage for a legal environment that is as adaptive and forward-thinking as the technologies it seeks to govern.
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