Analyzing the concept of IPRs in creations of AI – Part 4: Possible solutions, or are they?
This is the final part of four-part analysis of the concept of IPRs in creations of AI. The first three parts of this series discussed various phases of the affair between AI and IP law.
Here’s a quick recap!
The first part of the blog series looked at the meeting of AI and IP and what that meeting ensued in terms of granting legal personality to AI for the purposes of the IP law. The second part looked at this confluence from a global lens and considered how other countries are trying to resolve the issue of AI’s legal personality. While, theoretically, it seems possible to grant a legal personality to AI, there is still some hesitation in taking steps in this direction as some questions regarding implementation remain unanswered. The third part raised three such questions, namely, ownership of IP upon grant of legal personality to AI, claim of moral rights, and enforcement rights.
This blog is an attempt to explore these issues further and suggest solutions to resolve these issues.
One of the questions highlighted in part three of the series concerns conferring IP rights on AI. This question arises from the fact that, as on date, the principles and law governing IP do not recognize a non-human author. However, the rate at which technology is progressing and the ever-increasing ability of AI to create original and independent works, it is imperative to consider whether an AI can be considered an author for the purposes of law. There are a few possible solutions to address this issue. One way to resolve this issue is to expand the scope of an author and to include non-human elements within the definition. Some believe that assigning authorship to AI would encourage innovation and growth. While in theory it seems like a plausible solution, it can pose serious repercussions from a practical enforcement standpoint. Practically, non-humans can neither claim nor be held legally responsible in a court of law. One way to get over this hurdle would be to provide ‘guardianship’ rights to a person or a company who may act on behalf of the AI. Another possible solution is to expand the scope of the relationship between employer and employee under the ‘made for hire’ doctrine. In a work made for hire, a corporation can hold IP rights in a work which is created by someone. A corporation is a non-human entity which is legally recognized as capable of acquiring copyright protection as authors of the work under the law. Likewise, granting a legal personality to an AI would open the doors for an AI and it could also own an IP right. Just like in the case of corporations, the term of the copyright could be limited for an AI. Moreover, the programmer of the AI could be given rights to be the owner of the copyright on behalf of the AI. Some proponents have also proposed the doctrine of joint work as a possible solution. Joint work doctrine is a compromise wherein both AI and the person who programmed the AI to be joint owners of the copyrightable work. However, this is a short-term solution to a long-term problem as it does not take into account the works created by a fully autonomous AI that has created a work without human contribution.
These potential solutions can be used to resolve another issue pertaining to enforcement of IP rights in creations of AI. However, for enforcing a right both authorship and modicum of creativity must be shown. While it is possible to show authorship, the idea of creativity in the creation of another creation which is eventually made by a human is still quite murky. Originality and creativity subsisting in a work would perhaps be determined on a case-to-case basis. However, once granted, it may be possible to enforce these rights through guardians of AI as discussed above.
As regards moral rights, it is pertinent to understand the reason behind the introduction of moral rights in the sphere of IP. Moral rights are a recognition of the personal interests of an author/creator and their bond with their creation. This right is internationally recognized and enshrined in Article 6 bis of the Berne Convention which includes ‘Right to Integrity’ and ‘Right to Attribution’. So, the question is whether an AI can claim moral rights? If considered within the sphere of existing laws and principles, then the answer would be ‘No’. This is because moral rights pertain to honoring the creator and the work and treating their work with dignity. These rights have been created to protect the reputation and legacy of a creator. The question which then arises is whether an AI has such interests. Clearly honor, reputation and legacy are aspects of personhood and ideological values which a machine, per se, cannot possess. Accordingly, an AI cannot claim damages in the event of distortion or mutilation done to its work and hence cannot monetize this right. The only prong of moral rights which may be extended to an AI and its creation is the right to attribution or paternity right i.e. the right to claim authorship over the work. This is based on an assumption that the an AI would become extremely autonomous in the future that it will be able to create a work without human contribution. Here it is imperative to appreciate the difference between human intervention and human contribution for the purpose of granting an IP right. While an AI would be created and would interact with humans which could amount to human intervention, it would be too far-fetched to claim human contribution sufficient for claiming an IP right, in a work created by an AI, which indirectly stems from its programmers or developers work.
Although the above-mentioned possibilities explore the manner in which an AI generated work can be granted protection within the legal framework without completely destroying it or its underlying principles, these solutions come with their own set of problems. Many are of the opinion that if the issues surrounding authorship and creativity cannot be resolved, then it would be best to not grant any rights to an AI in an AI generated work and works of AI should be placed in the public domain. According to this segment of thinkers, copyright protection provides motivation, economic and/or moral, to be creative. However, AI does not require such motivation. While this seems logical, it is crucial to understand that such an arrangement would allow persons to commercialize such work without authorization and reap commercial benefits from these works. In such a case, investors who invest in the AI and its programming would lose their incentive of making an investment in this technology which would eventually take away the motivation or incentive of a human to develop an AI to accomplish tasks. Given that the IP law framework is built on a reward-based system, there is a possibility that, in such a situation, a person would lose the incentive of bringing the work in public domain because he/she will not be able to reap the commercial benefits of the work.
Accordingly, it is imperative to grant some protection to an AI generated work. Although it is clear that AI generated works must be protected, it leaves open the questions whether such works should be granted protection today or should we wait for AI to become completely autonomous, as envisioned and depicted in the Disney-Pixar movie, Wall-E. Another question that would need to be considered is whether such protection should come from within the existing legal framework or through a sui generis law.
In our opinion, given the unprecedented rate at which AI is developing, the need of the hour is to grant it some protection. At this time, since the AI is still developing, it may be possible to protect the works of an AI by way of making certain adjustments within the legal framework. However, in the long run, a sui generis law would be ideal to grant such works the much-needed protection.
 Hristov, Kalin, Artificial Intelligence and the Copyright Dilemma, IDEA, Vol. 57 No. 3 (2017), https://ipmall.law.unh.edu/sites/default/files/hosted_resources/IDEA/hristov_formatted.pdf
 Acevedo, Veronica, Original Works of Authorship: Artificial Intelligence as Authors of Copyright, Seton Hall Law (2022), https://scholarship.shu.edu/cgi/viewcontent.cgi?article=2270&context=student_scholarship
 Sarraute, Raymond, Current Theory on the Moral Right of Authors and Artists under French Law, The American Journal of Comparative Law, Vol. 16, No. 4, American Society of Comparative Law (1968), pp. 465–86, https://doi.org/10.2307/838764
 Chávez, Javier André Murillo, COCOpyright and the Value of Moral Rights, WIPO Magazine (2018), https://www.wipo.int/wipo_magazine/en/2018/04/article_0003.html
 Kumar, Senthil, Moral Rights Under Copyright Law, Mondaq (2016), https://www.mondaq.com/india/copyright/537094/moral-rights-under-copyright-law#:~:text=The%20right%20to%20paternity%20is,act%20done%20to%20his%20work