Author: Shawaiz Nisar- a student at Rajiv Gandhi National University of Law, Punjab.

Introduction

Artificial Intelligence specifically algorithms is transforming the society by presenting better and improved products, processes, and much more, thus paving the way for greater productivity, efficiency, and well-being of humans.

Algorithms have utility in our day-to-day activities and have become integral to our lives. The development of algorithms requires creativity and a lot of effort; therefore, its developers should be given some exclusive rights for its proper utilization. Intellectual Property Rights are the rights generally given for such kind of an intellectual activity. On account of the aforesaid qualities of algorithms coupled with their phenomenal value, there should be some protection mechanisms for ensuring that these works are protected from illegal and unauthorized use, so as to let the creator enjoy its benefits. The blog attempts to figure out some protection mechanisms currently available for algorithms. It further lays down some other possible mechanisms for protection, and lastly draws out the best of these protection mechanism .

Defining Algorithm

Majority of the experts on algorithms do not suggest any definition for the term algorithm, because the same would restrict its scope. One definition cannot cover all the aspects of algorithms considering their rapid development and growing use cases. However, for the purpose of understanding, we will use the definition given by Hill. He defines the term algorithm as, "a finite, abstract, effective, compound control structure, imperatively given, accomplishing a given purpose under given provisions". Simply stated it is "a step-by-step procedure for solving a problem or accomplishing some end". Algorithms when incorporated into computer programs guide the computers on how to complete tasks.

IP & Algorithm-The Complication

Algorithms find themselves in a tricky situation when it comes to their IP protection. Firstly, this is because they fulfil essentials of more than one IP protection mechanism such as patents, copyrights, and trade secrets, and so it becomes difficult to accommodate them in one single domain. Secondly, AI, which is the creator of some algorithms, has not been recognised as an intellectual property rights holder, thus complicating the situation further.

There are three major IP protection mechanisms under which Algorithms can be protected. These mechanisms are:

  1. Patents,
  2. Copyrights, and
  3. Trade Secrets

We shall take a look at these one by one.

Patents: A Patent protects a product or a process which is novel, useful, and non-obvious. It may sound strange but algorithms can be protected as patents. Algorithms are generally excluded from patent protection, however, but technically they do qualify for the same. The reason is that software programs or algorithms fulfil all the essentials of a patent such as novelty, non-obviousness and usefulness. The earlier law on the issue may have completely excluded software programs including algorithms from patent protection. However, the review of the current law on the issue suggests that- "processes that use computers may be patented, but that protection does not extend to software programs themselves," and that "there continues to be no protection under current patent law for the large number of computer programs that are neither embodied in firmware nor related to a process of production."

This clearly indicates that protection can be granted to software programs and algorithms if they can be associated with some patentable process. Hence it can be concluded that patent law does not completely exclude software programs from being protected as patents if the same is associated with some patentable invention.

Copyrights: The second option for protection of algorithms is copyright. Copyrights are the exclusive rights given to the author of an original and creative work. These rights include preventing copying of work, distribution of copies, and preparation of derivative works from the original work. These rights are very much valuable specifically considering that software can be easily copied. Algorithms are creative works in the sense that they present a creative method of doing a task using code. As far as algorithms are concerned, they are sometimes the work of Artificial Intelligence and the problem with copyrights is that it is yet to recognise AI as author for granting exclusive rights. Copyrights can surely protect the human author but not non-human authors such as AI. Second issue with respect to copyrights is that of expression of algorithms. Copyrights protect only the expression of an idea and not the idea itself. Copyrights exclude the following from its protection irrespective of the form of description:

Idea, Procedure, Process, System, Method of operation, Concept, Principle, or Discovery.

This mandates the idea to be presented in some tangible form. For instance, the plot of a novel in a person's mind cannot be protected unless that plot is written or recorded in some tangible form. Copyright protection, thus, in application to software program or algorithm, would protect only the intellectual property embodied in software as a mode of expression. Algorithms can form part of the computer software after their expression in computer programs and therefore can be protected. However, looking at the nature and importance of algorithms or software programs in commercial activity, the author/originator of the program may not want to publish it and instead would like to utilize it without letting others know about the same. These kinds of algorithms which the author does not want to publicize cannot find a proper place for protection under the copyright law. This drawback of copyright protection leads us to the third protection mechanism which is protection by way of Trade Secrets.

Trade Secrets: Algorithms or software programs can be protected by way of trade secrets. Some believe it to be the best and most reliable protection mechanism, for instance, Nirwani says that, "in today's increasingly complex, highly competitive, hyper-connected world, some things that might ordinarily be protected by traditional IPRs . are best kept secret".

Trade secret does not require any complicated specifications unlike copyrights and patents. There is no need for the expression of it to be in some tangible form; instead it can be protected once it originates. Given their anonymity and huge commercial value, algorithms are eligible for trade secret protection. However, trade secrets are never meant for IP protection, nor are they always considered as IP rights. There are three essentials for protecting anything under trade secrets. These are:

  1. Information must be secret i.e., it should not be known to the public involved in such a domain.
  2. Its commercial value should arise from its secrecy.
  3. The owner or manager of such information should reasonably keep it confidential.

Algorithms fulfil all these requirements. However, the issue with trade secrets is that they only safeguard information from unfair competition and commercial use; they do not "create any exclusive rights to know-how or information". The secrets are protected against unlawful acquisition and use, however, when the acquisition or use becomes lawful, such as in the public interest or in exercise of governmental functions, then the trade secret holder does not have any recourse. Simply stated, trade secrets do not confer exclusive intellectual property rights on its holder and instead is a mechanism for ensuring secrecy.

Algorithms need proper protection as they qualify as intellectual property and should get exclusive rights. However, the same is not ensured by trade secrets and this is counterproductive for business and societal interests. In this way, start-ups and entrepreneurs find themselves in a complicated situation while wanting to protect their creative software programs or algorithms.

Indian Jurisprudence on the Issue

Indian law on the issue clearly lays down the scope for software programs and algorithms to be protected by copyrights or Trade Secrets. It excludes protection of software programs and algorithms by way of patents. However, it leaves the discretion on the author of such a work to either apply for copyright protection or protection under trade secrets but not both. Once the work is protected under copyrights, the same cannot be protected as trade secret and vice versa. Under Indian Patent law, the algorithms are completely excluded from protection, as they do not qualify for patent protection.

Conclusion

There is a need to evaluate how IP should protect AI and AI-based systems such as algorithms. This should be done considering business success and best interests of the society. It's a fact that reliance on trade secrets for the protection of algorithms is the current best option as there is uncertainty in patent and copyright laws.

The rights of individuals and society must be balanced with IP protection. Reliance on trade secrets for long would not be justified as the same would be contrary to the objective of IP rights. The real IP protection is offered by the mainstream IP protection mechanisms such as copyrights and patents, while trade secret is essentially not an IP protection mechanism. Moreover, protection by way of trade secrets lacks transparency and accountability as stated earlier.

In order to address the issue, the IP law needs to pave way for AI to come forward for its protection. Recognizing AI including algorithms as creative or technical art would solve the inherent issues and would pave way for them to become eligible for copyright or patent protection. Switching to copyrights could be better, but it also has numerous issues; for instance, it would restrict technical systems under a framework designed for 'creative' works only. Whereas patent protection would be flexible and therefore preferable over copyright protection as AI and algorithms may be too technical for the latter. Moreover, as per experts in this field, the best kind of protection for algorithms is patent protection. For this, the scope of patents has to be widened to incorporate algorithms, algorithmic models, and their bespoke datasets. This would result in better protection of algorithms and ensure transparency and accountability in their use.

Algorithms And Intellectual Property— The Complexity In Protection

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.