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Published by Sthita Patnaik, 2019-11-15 13:02:34

AI & Law - M4

AI & Law - M4

MODULE 4
ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY

The use of Artificial Intelligence will definitely challenge the area of copyright,
trademark, and patent law in the coming times. These artificially intelligent
machines are growing creative and are transforming the invention process in
ways not easily accommodated with the present system. This requires the
existing and supporting legal doctrines to be re-examined and various rules for
example, rules relating to patentability, patent scope and patent infringement
adjusted, to accommodate the new paradigm of invention. 1

In general, mental processes and the processing of human thinking are
presumed to be abstract and non-physical and therefore largely ineligible for
patent protection.2 Hence, if we keep this observation in mind will these artificial
intelligence techniques that can match with the decision making by humans be
considered abstract and not eligible for patent protection? We have still a long
way to go before we answer this question right now.

The definition of “inventor” as per the U.S Patent Statute means “the individual
who invented or discovered the subject matter of the invention.” Therefore, in
the case of inventions being done by artificially intelligent bodies which may be
independent of human touch, the primary questions that arises is that who shall
be the inventor? The individual who programmed the functioning of the artificial
intelligent machine or the machine itself?

1 Lisa Vertinsky and Todd Rice, Thinking About Thinking Machines: Implications of Machine Invention for Patent
Law, B.U.J. SCI & TECH., Vol 8:2.
2 Steven B. Roosa, The Next Generation of Artificial Intelligence in Light of In re Bilski, 21 Intellectual Property
and Technology Law Journal, 6 (2009).

In the area of product design, artificial intelligence is already independently
designing genuinely useful inventions in a number of fields.3 Artificial
Intelligence can also be used to solve design problems often using novel
solutions that were originally unknown to the human in the system.4

In most countries, the Intellectual Property Law focuses on ‘creators’ and
‘inventors’- which means “people” who create and invent. Therefore, the notion
of human as inventor is embedded within the Intellectual Property application
process, which clearly goes on to say that the laws are framed in terms of human
creations. For example, if we take an example of the U.S Patent System (keeping
in mind that the U.S is one of the most advanced countries in terms of Artificial
Intelligence), Section 100 of the Patent Act states “whoever shall invent” and
section 102 prohibits patenting of subject matter that the person ‘did not
himself invent’. Hence, maybe it’s time that the law should be amended to
define ‘author’ and ‘inventor’ as “hardware or software capable of human-like
intelligence”.

The need for such kind of amendment will be pressing as artificial intelligence
becomes more creative and autonomous from humans. In a scenario, the
employer of a creator or an inventor becomes the owner of the intellectual
property by virtue of the work for hire doctrine or an employment agreement.
Perhaps, artificial intelligence could be regulated under the work for hire
doctrine in which the employer would own the copyright to the work.

3 Robert Plotkin, The Genie in the Machine (Stanford University Press 2009).
4 Ibid.

Another area of Intellectual Property that will be challenged by artificial
intelligence, will be the question of authorship of works created by algorithms.
Under the majority of copyright laws, a computer software or a computer
program is considered to be a ‘literary work’ but software’s are not considered
to be an author no matter how creative the work produced is. On this point, a
draft motion was prepared by the European Commission arguing that the
sophisticated autonomous robots coming online should be granted the status of
an ‘electronic person’ with specific rights and obligations such as to claim
copyright protection for their work, including work produced during the
employment contract.5

If we consider Intellectual Property Rights for Artificially Intelligent entities, the
issues of civil procedures will also need to be considered. Do the computers have
standing to file an application or to initiate an infringement claim? Put your
thinking caps on.

SHOULD AI OWN THEIR OWN INTELLECTUAL PROPERTY?

If we think of the times when artificial intelligence is the source of a new idea or
creation, it causes a grey area over the ownership rights that will only become
harder to define in the future. However, in the current scenario, Artificial
Intelligence is seen more as a tool than a copyright owner. It might happen that
a day would come when Artificially Intelligent machines could be the deemed
owners of intellectual property.

5 Curtis Karnow, The Application of Traditional Tort Theory to Embodied Machine Intelligence, The Robotics and
Law Conference, Centre for Internet and Society, Stanford Law School (2013).

In the UK, the author is the programmer, however in the U.S, the person who
conceives of the invention is the inventor; the programmer doesn’t know what
the answer is going to be. Therefore, in any case, it is not clear to say that
whether artificial intelligence could carry out all the currently understood rights
and obligations of an IP Owner.

Awarding Intellectual Property Rights to Artificial Intelligence raises another
very important question that, whether these artificially intelligent machines
could be held liable for infringement of owners of intellectual property,
including those of other artificially intelligent machines (a fictional scenario
when artificial intelligence gets intellectual property rights). The intellectual
property rights are currently restricted to ‘natural persons’ and ‘legal entities’
such as companies.

A possible future in which artificial intelligence achieves human levels of
intelligence and self-awareness still seems distant. If I may put it in the words of
Francis Gurry, director general of the World Intellectual Property Organization
(WIPO), “We can all indulge in a little bit of science fiction and fantasizing, and
imagine a machine, the singularity, with genuine artificial intelligence, but the
fact is that it’s not here, so we don’t have to deal with it.”

While artificial intelligence currently cannot own intellectual property rights, I
believe a time may come when they do. Just because artificial intelligence is not
a ‘person’, it cannot own any intellectual property but it can definitely create
music, art or even write books. Thus, there might come a day when the concept
of ‘electronic person’, which was rejected by the European Union, might come
to exist.

For an artificial intelligent machine to hold intellectual property rights, it will
need to hold all sorts of other rights as well, legal and otherwise. In late-2017,
Saudi Arabia announced that it was awarding citizenship to Sophia, a robot. The
move wasn’t hailed as a step forward in human rights as critiques say that Sophia
enjoyed rather more rights than the country’s women.

USING ARTIFICIAL INTELLIGENCE FOR THE ADMINISTRATION OF INTELLECTUAL
PROPERTY RIGHTS

There are primarily three factors- volume, quality and cost which are driving the
use of artificial intelligence in the administration of intellectual property rights
system. In 2016, the last year for which data are available with World Intellectual
Property Organization (WIPO), around 3.1 million patent applications, around 7
million trademark applications and 9,63,000 industrial design applications were
filed worldwide. This volume is rapidly increasing every year which is making the
processing of these applications at par with the available human resources. It is
simply not possible for a human to go through the millions of trademark and
design applications received each year to determine whether a given trademark
or design qualifies for registration. Considering the above scenario, WIPO
developed an artificial intelligence empowered search tool for trademarks and
embedded it into its Global Brand Database resulting in quick and accurate
results. Therefore, amid increasing global demand for IP rights, artificial
intelligence will assist in achieving better quality and reduce the administration
costs, says WIPO Director General, Francis Gurry in an interview.

There’s no doubt in saying that the coming generation of artificially intelligent
systems will play a very important role in the administration of intellectual
property rights in the future. However, the other thing we need to keep in mind
is that the international intellectual property community works together and
shares the resources. Since an artificial intelligent system will require large
amounts of data to be fed in order for it to function effectively and precisely, we
need to encourage the sharing of this resource. This will also make the entire
process cost-effective.

The approach of WIPO so far has also been to explore ways to develop artificial
intelligence applications using training data provided by the member states and
other institutional partners. In return, WIPO shares with them any new AI
application that is developed using those data. WIPO developed a state-of-the-
art neural machine translation tool that is powered by artificial intelligence,
knows as WIPO Translate. They are sharing this tool with 14 intergovernmental
organizations and various patent offices around the world.6 Since the system
depends on access to and availability of data, all partners can benefit from its
use and can supply data for its improvisation, resulting in the development of
these tools in the most effective and cost-efficient manner.

Artificial Intelligence has great capabilities in facilitating patent search and
examination too. The automatic classification of patents and goods and services
for trademark applications are other promising areas for the application of
artificial intelligence. WIPO in collaboration with University of Geneva, also
launched an automatic patent classification tool for the International Patent

6 Artificial Intelligence and Intellectual Property: An interview with Francis Gurry, WIPO Magazine, available at
https://www.wipo.int/wipo_magazine/en/2018/05/article_0001.html

Classification (IPC) system using neural network technology. This new tool,
knows as IPCCAT-neural, will be retrained annually with updated patent
information and will help patent examiners access and search ‘prior art’ more
easily.7 With time, there will definitely be an emergence of other areas in which
artificial intelligence application can help in making the administration of
intellectual property rights more efficient and robust.

7 Ibid.


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