Module_4

MODULE 4

IMPACT OF ARTIFICIAL INTELLIGENCE ON INTELLECTUAL
PROPERTY LAW

The use of Artificial Intelligence will 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.

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).

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?

In the area of product design, artificial intelligence is already
independently designing genuinely useful inventions in several 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”.

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

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.

Another area of Intellectual Property that will be challenged by artificial
intelligence, will be the question of authorship of works created by
algorithms. Under most copyright laws, a computer software or a
computer program is considered to be a ‘literary work’ but softwares 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.

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).

4.1. WHO SHALL OWN THE RIGHTS IN THE PROPERTY
CREATED BY AI?

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.

AI is a tool that assists inventors in the invention process or constitutes a
feature of an invention. In these respects, AI does not differ radically from
other computer-assisted inventions. However, it would now seem clear
that inventions can be autonomously generated by AI, and there are
several reported cases of applications for patent protection in which the
applicant has named an AI application as the inventor.

Meanwhile, pharmaceutical companies are increasingly turning to AI to
drastically speed up the process of discovering new drugs, analyzing huge
quantities of data to come up with new molecules that could potentially
have a therapeutic effect.

Law sees AI as a tool, not a copyright owner.

It moves like these that have led some to suggest that, one day at least, AIs
might be deemed owners of copyright or other intellectual property (IP).

However, according to most legal and technology experts, this scenario is
a long way off. “From my perspective, that can be wielded by the creator
of a creative work or inventor of a new technical innovation in the same
way a paintbrush is wielded by an artist or a CAD [computer-aided design]
tool by an inventor,” says Jeremy Smith, chartered patent attorney and
partner at IP law firm Mathys & Squire.

This is currently the way the law tends to see it, although different legal
systems have different interpretations of who exactly is holding the
paintbrush.

“The UK has a different approach to AI-generated copyright; the author is
the programmer,” says patent attorney Peter Finnie of law firm GJE. “In
America, the person who conceives of the invention is the inventor; the
programmer doesn’t know what the answer is going to be.”

In any case, say experts, it’s not clear that AI could carry out all the
currently understood rights and obligations of an IP owner.

It is clear from the ambiguous legal positions around the world that there
is no ‘one size fits all’ approach to determining IP ownership. AI lacks
certain human features, such as the intent to create works. Whether intent
is a necessary feature to attribute ownership remains unclear. Of course,
machine learning and other AI programs may eventually exhibit the
required intent.

Many commentators have also proposed that AI-created works should be
deemed free of copyright and IP rights because there is no human creator.

However, pursuing this policy could mean that AI businesses would be
less inclined to continue building innovative technology, as they would be
unable to profit from the final output. Automatic revocation of IP rights
where AI is the creator of works is likely to hinder innovation.

Alternatively, other commentators have suggested that authorities should
attribute the IP to the humans who hold patents for that machine or
software. However, this suggestion fails to consider instances where there
are no patentable rights. Another suggestion is to attribute IP rights to the
original creators of the programs creating original works. This would not
consider whether the creator of the AI or the AI program could otherwise
hold the IP rights. However, this solution could become unworkable as AI
develops the ability to create programs or set parameters itself.

4.1.1. A Monkey’s Copyright Claims

A US lawsuit about whether or not a non-human entity can own
intellectual property offers some guidance on the reaction of courts. At
issue is a series of self-portraits or “selfies” a macaque called Naruto took
using a camera owned by British photographer David Slater. Slater has
been unsuccessful in his attempts to enforce his claims that he owns the
copyright for the photos, which were taken with his camera. He was also
unable to obtain a court order in the US to have one of the photos removed
from Wikipedia.

Meanwhile, in a separate legal case, the People for the Ethical Treatment
of Animals (PETA) has claimed the monkey own the copyright, while the
original case was dismissed.

“In Naruto [the PETA case], the federal district court dismissed the case
because animals have no standing even to bring a case,” Baumert said.
“The court, to justify its decision, pointed out that the higher courts have
only referred to ‘persons’ or ‘human beings’ when analysing authorship.
Although some scholars argue for recognising the rights to the inventions
created by animals or computers, congress and federal courts in the US are
reluctant to grant such rights. Therefore, neither copyright law nor patent
law protects animals or AI-generated inventions.”

4.1.2. Public Domain

If lawmakers can agree that machines cannot be considered in the same
light as humans, and thus cannot own copyright, many legal scholars
contend machine-created inventions and works should be in the public
domain.

“Copyright law is meant to protect people, not machines, and things
created by machines should not be copyrightable by anybody. They should
be in the public domain,” Ray Beckerman, a New York-based attorney and
veteran advocate of defendants in lawsuits initiated by the recording
industry. “There is already an excess of property right promotion in the US
copyright world now, and not enough promotion of the public’s rights in
public domain.”

In the not-so-distant future, there may be cases when there are several
programmers and content sources, since machines are often given access
to vast libraries of content, Acosta said.

“It might end up being a situation where a novel entity (the AI) is being
used to process what it has learned from our common cultural heritage into
novel forms of creation, which should also belong to our society at large,”
Acosta said.

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 it maybe 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, we 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.

4.2. 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 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

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, last accessed Oct 18, 2019.

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 Classification (IPC) system using neural
network technology. This new tool, known 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.