Artificial Intelligence has taken the world by storm. Currently, AI has laid its foundation in various industries and is set to change the lives of humankind in the upcoming years whether be it socially, economically, or even legally. Artificial Intelligence has drastically changed the way humans perform their work by replacing brain power with algorithms for quick and efficient retention and retrieval of data. It is only a matter of time that such a system is adopted to improve the administration of IP.
AI functions on "algorithms." These algorithms are a step-by-step procedure that commands how the machine can process data. This data can be processed into complex calculations, or generate automated reasoning, it can also further be commanded to develop its own algorithms. Obviously, such an algorithm would be complex and requires heavy research but once the AI processes this command it is free to create its own algorithms. In such a scenario, the AI will have the creative freedom to invent or discover new algorithms, but who can claim patent rights on such creation? The laws on IP currently are not in synchrony with the contemporary issues surrounding the question of whether AI can own IP.
In this article, we shall discuss the plethora of uncertainties surrounding AI and IP. We will have a look at the future of AI in the world of IP as an administrator, the changes it will bring in its everyday function. We will also reverse the role of AI as an administrator to that of a customer and explore the possibility of AI owning IP, if so, then will it take the role of the owner or creator of such a possibility. Finally, we will also examine the scope of AI as a legal entity.
Artificial Intelligence and Intellectual Property
The main purpose of granting IP rights is to encourage 'creations.' It balances the owner's right towards claiming an invention but at the same time also ensures that it doesn't prevent its widespread use. IP as a segment is expanding, in IP Trend Monitor's Annual Survey 2019 Edition, 71% of the respondents revealed that the industry has started receiving more work in just a span of a year. In the next 5-10 years IPR will grow continuously along with the world and with the advancement in technologies and computational knowledge, the rate of inventions is set to grow at a rapid pace. Management of IP Portfolio will become a mammoth task, for patent searching, researchers will have to use long Booleans and complex word searches to sort through the available data. AI can make this entire process easier, faster and remove the possibilities of error all by applying machine learning methods, modern search can resolve the inherent ambiguities that plague traditional keyword searches.
AI has a huge scope in administrating monotonous and dull jobs like patent searching, trademark clearance and can also reduce costs for customers who can't afford access to costly legal services and databases. It can also introduce greater transparency towards granting patents and can create a system where accountability can be established.
Impact of AI in the World of IP
A. Work Distribution
AI is capable of administrating data analytical works like IP profile management, patent searching, and trademark clearing. These functions are fairly simple and are performed at a high frequency. By introducing algorithms AI can replace long, unproductive, and cost consuming hours of work with just a simple procedure. More functions such as patent filing, trademark filing, drafting agreements, and discovery can also be performed by AI however, these will require a certain level of skill sets and judgment which AI is not capable of yet, but might be in the future. The one area where the involvement of AI is highly doubtful would be in court proceedings, gathering evidence, and compiling opposition views. These are all complex tasks and cannot be performed by algorithms or computer programs, such skills are inherent to humans and cannot be generated.
B. Law and Procedure
The introduction of AI into the world of IP will bring changes in the existing laws and statutes related to Intellectual Property. These laws could redefine concepts of creator, ownership, and invention and can include a new dimension where AI is capable of owning IP. Ex: DABUS was recently granted the title of inventor in South Africa. However, the changes that these new dimensions would bring are still uncertain. Countries like Australia, India, North America, and organizations like the European Union which follow proper examination procedures before granting an IP contend the legality of AI and its autonomy when it comes to making generations.
There is also a contention that AI would have to come under regulation systems while administrating the field of IP but this discussion is still under talk and not very significant.
C. Job Segment
AI has massive potential to reform the day-to-day tasks within the IP industry. In a survey conducted by Dennemeyer an IP consultation firm it was found that 27% of the respondents felt AI would substantially change their jobs in the next five years, 39% felt that it would somewhat, 28% felt that it was too soon to say anything and 5% felt that they wouldn't encounter any change. Hence, from the data, we gauge that there is a substantial chance that jobs would be affected by the introduction of AI in IP for administration processes. These changes could be in the form of a shift in working priorities, removing certain work duties or responsibilities.
AI is expected to make a dramatic entry into the world of IP and it is therefore imperative to realize its importance. Many IP offices have already begun investing heavily in AI research to incorporate it into the daily functions of its activities. WIPO (World Intellectual Property Organization) has even started using AI applications, WIPO Translate and WIPO Brand Image to administer functions related to helpdesk services, machine translation, search engine, and automatic classification, examination and formalities check. However, these systems still need to undergo various stages of development to perform advanced functions.
In the future, AI will be most useful in developing practical working tools and will develop new trends and open up new market segments.
Can an AI Own an IP?
AI is an omnipotent phenomenon that has indeed become an indispensable part of our development and growth. The development in technology has enabled AI to intersect in almost everything there in the market from films, music tracks, paintings, literature to the defense sector and weaponry, it is almost next to impossible to do a task without the help of AI. The dilemma arises when AI rather than acting as an assistant does the work on its own. Though at this point AI working on its own is not that visible but in the future this is inevitable.
This also gives rise to another problem like whether an AI can be called an owner of the particular thing which is created by it, whether IP protection can be granted to the thing which is created by the AI. These remain some unanswered questions on a global scale. There are a plethora of articles on the internet commenting on whether the AI can own an IP or not but none of them lays down a clear understanding of the situation.
The first question which we are trying to understand is - what is the distinction between an owner and an inventor? AI if in case invents something which will be considered as an owner or an inventor?
When Inventorship and ownership are concerned, they are two different things that cannot be used interchangeably. Inventorship refers to the individual(s) who has contributed to the creation of a particular invention while ownership refers to those individuals or groups of individuals who own the proprietary rights of the invention.
As the distinction between an owner and an inventor is clear we can proceed to the next answer, which is whether an AI can be called an inventor or an owner of an invention. The answer to this is again dicey because the situation is not clear. The problem arises when rather than viewing AI as an inventor of something people view it as an assistant as the distinction is still not clear i.e., if someone is writing a book with the help of the software which keeps on suggesting words during the writing and keeps improving text on its own, in this situation that software cannot be considered as a co-writer it will be considered a mere assistant.
There is no doubt that AI machines are capable of creating subject matter that could be safeguarded by intellectual property. AI machines are capable of effortlessly creating artwork, a work of literature, a design (and perhaps print it in 3D), or a novel brand name. It is even conceivable that a powerful artificial intelligence machine will be in charge of creating innovative technologies or pharmaceutical treatments that would indeed be patent-eligible.
In India the laws pertaining to this subject is very narrow, according to the copyright act, section 2 (d) an 'author' refers to a human or a legal person, thus making it restricted towards AI, under Patents Act, section 2(p) and 2(t) a patentee is specifically pointed out to be a human thus, making the scope of AI in India very restrictive.
Recently, an AI was recognized as a co-author, Ankit Sahani an IP lawyer who owns this AI app. In November 2020, RAGHAV (AI associated with this app) and Ankit were granted a copyright for a painting named 'Suryast.' Though this is a remarkable achievement we have achieved, it can be struck down.
A similar case of DABUS happened in South Africa, DABUS became the first AI inventor and the patent was granted by the intellectual property commission, South Africa. The invention, which received a patent, was generated by DABUS which was created by Stephen Theller, CEO of Imagination Engines. Additionally, a significant number of patent applications have already been filed in various countries, prompting a variety of responses from authorities. The European Patent Office (EPO) has turned down all such applications, asserting that artificial intelligence does not qualify as a natural person/real entity and therefore cannot be considered an inventor as per their respective laws. Furthermore, legislation is required to grant AI systems and machines legal personality since legislative history indicates that perhaps the European Patent Convention (EPC) legislators believe that the word "creator" applies solely to natural persons. The same can be said about the High Court of England and Wales, which dismissed DABUS's application.
The application was similarly dismissed by the United States Patent and Trademark Office ('USPTO') on identical grounds, prompting the USPTO to publish a petition clarifying that under the US patent system, only natural persons may be designated as inventors. Although the UK Intellectual Property Office (UKIPO) admitted that DABUS was indeed responsible for the innovation, it instructed the petition to be dropped since DABUS was not a legitimate inventor. However, the UKIPO said that as artificial intelligence technologies are getting ubiquitous, it is necessary to consider these challenges since the existing patent system does not address them.
Interestingly, in the landmark case of Thaler v. Commissioner of Patents (2021), FCA 879, Justice Beach J ruled that Australian law provides no prohibition against an artificial intelligence submitting an application or being named as an inventor in such a patent filing, and therefore that it should be allowed.
In 2016, a coalition of museums and scholars in the Netherlands presented 'The Next Rembrandt,' an original art developed by a computer that critically analyzed as many as thousands of works by Rembrandt Harmenszoon van Rijn, a 17th-century Dutch artist. In the same year, a Japanese computer program authored a book that advanced to the 2nd round of a national literary contest. In another instance, a Google-owned artificial intelligence firm - Deep Mind, developed software capable of generating music just by listening to recordings. In other initiatives, computers have also authored poems, edited pictures, and even created a musical.
The crux of all the discussions is whether an AI can be considered an inventor or a legal entity. The question which is raised here requires a lot of discussion and research. The world where Sophia the humanoid is considered as a citizen of UAE is the same world where this claim has been rejected by a lot of developed countries like the USA, the UK, and the European Union. The answer to this same question is discussed in the next part of the article in the context of India.
The second question is:
Whether AI can be considered a legal entity?
The term 'intellectual property,' according to the Supreme Court of India, refers to a class of intangible rights that safeguard commercially valuable creations of human intellect. The World Intellectual Property Organization defines intellectual property as "mind creations." Courts have also considered IP ownership as a monopoly over the owner's intellectual creations and a method of excluding non-permitted users from reaping the benefits of another's intellectual property. As it can be concluded that an IP is a creation of intellect but it is nowhere written that whether that intellect should be of a human or an AI. Even though the requirement of a human element is not specifically addressed by the law, the possibility of a non-human entity being considered as an inventor is open under patent law. As the result, one can safely conclude that, unless otherwise specified, the general principles of IP law do not prohibit providing IPR to AI.
In a landmark judgment, the Supreme Court of India reviewed the idea of the juristic person and concluded that there are no theoretical limitations on the types of legal personality that may be bestowed. According to the court what matters is the purpose for which legal personhood is being conferred. If this purpose is realized, legal personality may also be awarded to an abstract idea. Further, the court observed that through juristic animation, inanimate objects can be given the status of a juristic person if they benefit multiple natural persons.
By considering the above arguments it can be easily argued that if an AI is used by pharma industries for developing a life-saving drug then it would be considered at par with a normal human being.
The dilemma is still uncleared and this still requires a lot of cognizance of high authorities. lawyers have an important role to play in this regard. We are living in a world where AI is omnipresent requires more laws to reap benefits out of it.
As we continuously grow to depend on technology and the requirement to produce faster results, we can safely say that AI is set to mark its existence in one's everyday activities. Even now, AI tools like Siri, Alexa are used as conversational bots to help generate responses as close to normal human speech as possible. With the kind of development that AI technology is undergoing right now, it can concur that AI will be omnipresent in the next 5-10 years.
With respect to IP, it is set to establish its presence in the world of IP. It will ease daily boring work when it takes up to administer roles such as IP profile management, patent searching, and trademark clearing, patent filing, trademark filing, drafting agreements, and discovery. This will make granting patents, trademarks easier and reduce the costs required in the process. The growth of IP as a sector is proportional to that of AI. This will also encourage inventions as it will increase transparency levels, reduce costs, make fewer errors and complete the process in a hassle-free manner.
The possibility that AI will own IP in the future cannot be ruled out and countries will need to have a relook at its IP laws and include a new dimension or a market segment under its preview. However, before AI can flourish as IP owners, the law will need to redefine concepts of ownership, inventorship, and who can be granted an IP. There is also an imperative need to understand algorithms and differentiate them from the AI developers.
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