The future is here, but are we ready! – Analyzing the concept of IPRs in creations of AI – Part 1: Qualification of AI

Our Associate, Alvin Antony discusses “The future is here, but are we ready! – Analyzing the concept of IPRs in creations of AI – Part 1: Qualification of AI”

In recent times, the role of Artificial Intelligence (“AI”) in everyday life of people has increased substantially. Consequently, discussions regarding role of AI in various sectors has also witnessed a sudden rise. The Intellectual Property Rights (“IPR”) world is one such sphere that is flooded with questions on the developments in the field of AI and its intersection with IP law. The celebrated step by South Africa of granting a patent to creation of AI[1] as well as a leading step by India to consider AI as a co-author of an artwork[2] has further added to the chaos regarding complexities around the work created by an AI in autonomous[3] manner, i.e. without any human intervention. Questions, such as whether such autonomous creations of AI should be recognized as independent work, whether such creations are eligible to be protected under current statutory framework and whether AI is capable of owning/considering such creations in true legal sense, are yet to be answered.

While there is no dearth of information on AI and its convergence with IP, we will analyze some of these questions and explore the possibilities around AI and IP through a four-part blog series. Each of the parts would focus on various aspects of this relationship. The first part will look into the question of granting a legal personality to AI to be considered for providing IPR, the second part will look at the afore-mentioned question from a global lens, the third part will highlight the issues that may arise when IPRs are granted for creations of AI and the fourth part will provide possible solutions to these problems/issues.

Before delving into the question of legal personality of an AI, it is pertinent to understand what one means by the terms ‘AI’ and ‘IP’. For the purpose of this blog series, creations of AI would refer to works created by an autonomous AI.

According to John McCarthy, AI is the “is the science and engineering of making intelligent machines, especially intelligent computer programs.[4] AI is a method intended to mimic the human intelligence with the help of computers. In modern times, where concepts such as machine learning[5] and deep learning[6] are able to create AI that are autonomous with the results, the nature of the same may have to be analyzed parallel to IPs that are created by human intelligence.

The Hon’ble Supreme Court of India has defined IP in the following words, “the term ‘intellectual property’ refers to a category of intangible rights protecting commercially valuable products of human intellect …”[7]. The World Intellectual Property Organization defines IP as creations of minds[8]. Courts have also considered the grant of ownership of an IP as a monopoly over intellectual creations of the owner[9] and a manner of excluding non-permitted users from reaping the benefits from the intellectual property of another[10].

As they say, intellect can be considered as the point of origin of IP. However, the evolution of AI has given rise to the question of whether this intellect is restricted to or should be restricted to humans.

As per law, say for example, in the case of copyright law, the author of a copyright is considered to be the first owner of copyright[11]. Most of the statutes pertaining to copyright law around the world refer to the term ‘author’, without making any reference to human intellect[12]. However, these statutes are with the presumption that the author will be a human.[13] Similarly, in relation to patent law, the rights emanating from statutes are considered in association with a ‘person’ who is claimed to be the inventor[14]. Even though the question on the necessity of a human element is not really addressed by the law, the possibility of a non-human entity to be considered as an inventor is open under patent law[15]. Therefore, one can safely conclude that, unless specifically mentioned, the common principles of IP law do not prohibit providing IPR to AI.

Given the above, it is important to understand the way jurisprudence on personality has developed in relation to these non-human entities. In M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors[16], the Hon’ble Supreme Court of India has given an extensive analysis of the concept of juristic personality. In the view of the Hon’ble Court, “at a purely theoretical level, there is no restriction on what legal personality may be conferred. What is of significance is the purpose sought to be achieved by conferring legal personality. To the extent that this purpose is achieved, legal personality may even be conferred on an abstract idea”. The court observed that through juristic animation, inanimate objects may be given a status of a juristic person, if it is benefiting several natural persons. Considering this, one can argue that creations of AI are benefiting natural persons, leading to the inference of granting IPRs to the AI driven authors/inventors of these works. This is not something unique to India and there are many jurisdictions, which have relied on the object-benefit analysis and have considered inclusion of non-traditional juristic persons for granting legal personality.[17]

Even though the statutory framework is not completely against qualifying AI for grating IPR, courts of numerous jurisdictions have expressed varied views, regarding the authorship of a non-human entity. The Delhi High Court is of the view that an author of an original work must be a human and not an artificial person. The Hon’ble Court in Rupendra Kashyap v. Jiwan Publishing House Pvt. Ltd., 1994 (28) DRJ 286, held that ownership of a copyrighted work may be granted only if there is involvement of a human in creating such work[18]. As per the court, juristic persons are incapable of being considered as authors of a work that may be the subject matter of copyright.[19] While these views of the court have created partial blocks when considering IPR in creation of AI, the law has not yet completely given a conclusion regarding the nature of creations of autonomous AI, on the basis of recent developments.

The intention of any kind of IPR is to create a system where human beings can reach higher levels of creative capacity. While considering IPR in creations of AI may face issues of lack of motivation in human creators, recognizing humans as authors of AI generated works may not serve the true purpose IPR. This needs serious consideration, especially when we are living in a time where AI is omnipresent. Recent developments, such as completing Beethoven’s unfinished symphony[20] is testimony to the fact that creations of AI are not secondary to the creations of human intellect. This is probably the reason why the world is trying to answer questions pertaining to the ever-evolving nature of AI.

[1]  Basham, V., 2021. South Africa issues world’s first patent listing AI as inventor. [Blog] The Global Legal Post, Available at: <https://www.globallegalpost.com/news/south-africa-issues-worlds-first-patent-listing-ai-as-inventor-161068982> [Accessed 5 October 2021].

[2] Sarkar, S., 2021. Exclusive: India recognises AI as co-author of copyrighted artwork. [Blog] Managing IP, Available at: <https://www.managingip.com/article/b1t0hfz2bytx44/exclusive-india-recognises-ai-as-co-author-of-copyrighted-artwork> [Accessed 5 October 2021].

[3] Currently, creations of AI can be categorized into the basis of level of human intervention in creating the result. Where assisted and augmented AI can be considered under current legal set ups as works created by humans using a computer, the result of autonomous AI is raising concerns on how law should consider the same. See also Rice, D., 2020. Assisted Intelligence vs. Augmented Intelligence and Autonomous Intelligence. [Blog] FedTech, Available at: <https://fedtechmagazine.com/article/2020/01/assisted-intelligence-vs-augmented-intelligence-and-autonomous-intelligence-perfcon> [Accessed 11 October 2021] to know the nature an level of human intervention in each kind of AI

[4] Ibm.com. 2020. What is Artificial Intelligence (AI)?. [online] Available at: <https://www.ibm.com/cloud/learn/what-is-artificial-intelligence> [Accessed 5 October 2021].

[5] See Expert.ai, 2020. What is Machine Learning? A Definition. Available at: <https://www.expert.ai/blog/machine-learning-definition/> [Accessed 5 October 2021].

[6] Ibm.com. 2020. What is Deep Learning?. [online] Available at: <https://www.ibm.com/cloud/learn/deep-learning> [Accessed 5 October 2021].

[7] The Institute of Chartered Accountants of India vs. Shaunak H. Satya and Ors. AIR 2011 SC 3336

[8] Wipo.int. n.d. What is Intellectual Property (IP)?. [online] Available at: <https://www.wipo.int/about-ip/en/> [Accessed 5 October 2021]. This was referred by Hon’ble Gujrat High Court in Gurukrupa Mech Tech Pvt. Ltd. vs. State of Gujarat and Ors. (2018)4GLR3324.

[9] State of Kerala vs. The Malayala Manorama Company Limited 2017(2)KLT36

[10] McDonalds India Pvt. Ltd. and Ors. vs. Commissioner of Trade & Taxes, New Delhi and Ors. ST. APPL.26/2013, Delhi High Court

[11] Section 17, Copyright Act 1957.

[12] Section 2(d), Copyright Act 1957.

[13]  See for eg. PRACTICE AND PROCEDURE MANUAL 2018, Form –XIV: SOP Col 7

[14] Section 28, The Patents Act 1970

[15] This can be concluded from the fact that Person as per Section 2(1)(s) of The Patents Act, 1970 includes Government as well.

[16] M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors, Civil Appeal Nos 10866-10867 of 2010, Supreme Court of India

[17] See for eg: Te Urewera Act 2014 Section 11(1) through which New Zealand confers legal personality to national park and river.; Article 10 of Constitution of Ecuador provides rights similar to natural person to entire nature. Even Hon’ble High Court of Uttarakhand has considered rivers Ganga and Yamuna as juristic persons in Mohd. Salim v. State of Uttarakhand, 2017 SCC OnLine Utt 367

[18] Rupendra Kashyap Vs. Jiwan Publishing House Pvt. Ltd. 1994 (28) DRJ 286

[19] Tech Plus Media Private Ltd. Vs. Jyoti Janda, (2014) 60 PTC 121

[20] lgammal, A., 2021. How Artificial Intelligence Completed Beethoven’s Unfinished Tenth Symphony. [Blog] Smithsonian Magazine, Available at: <https://www.smithsonianmag.com/innovation/how-artificial-intelligence-completed-beethovens-unfinished-10th-symphony-180978753/> [Accessed 18 October 2021].