Artificial intelligence and ipr

ARTIFICIAL
INTELLIGENCE AND
IPR
Nibedita Basu

Meaning and Introduction to AI
 The term Artificial Intelligence was coined by
John McCarthy at a conference in 1956.
 The term was used for the ability of the
computers to take decision by itself without
human interference with the use of algorithms
and commands.

The Wrestle between AI and
Man

Growth of AI in modern day.
 AI became sensational when it was first
started and within years, it has become one of
the most promising features of technology.
 The machine learning process includes
analysis of data, identifying patterns of user’s
preference and applying it to get optimum
result in the market.
 It is the high demand of manipulating and
organizing large amount of data that call for
the usefulness of AI.

AI and IPR
 Artificial Intelligence (AI) is growing at an
exponential rate throughout the world. This
boom raises the question of IP management in
AI
 There have been discussions and moderations
but not a conclusion on the subject matter.
 There are a number of anomalies when it
comes to the regulation of IPR within artificial
intelligence.

Intellectual Property Rights give
 Legal rights to the creation of mind
 Art and Inventions
 Regulates existence of ownership and
transmission of rights
 Ensure Incentives
 Guarantees credit and recognition

 Even with international agreements and
conventions in place, there is no clarity on the
law with the advancing technology.
 There are questions with reference to the
ownership of patent and copyright and great
concerns over the infringement issues and the
penalties involved.
 Countries like the USA and the UK have made
persistent efforts to interpret the existing laws
in a manner that encompasses the AI feature
as well.

 The copyright issue in the case of selfie-taking
monkey in the USA, Naruto v Slater, and the
landmark Infopaq Case in Europe interpreted
the existing laws and the use of words
‘authorship’ and ‘intellectual creation’ to
analyse and come to a conclusion for the
ownership of IPR.

 There is no doubt about the fact that machine
learning and deep learning has changes the face
of the technology and with such moving and
changing dynamics arises new issues and
challenges.
 A draft report of the European Parliament to the
Commission on Civil law Rules on Robotics stated
that in future, there will be no stratum of society
which will be untouched by AI.
 AI has been overlapping with the ambit of
Intellectual Property Rights (IPR) and it raises
many issues concerning the laws and
methodology.

 IPR is an important tool to protect innovation and
provide economic benefit for the intellectual work and
AI has turned out to be a new dimension.
 WIPO recognizes three categories of AI- Expert
Systems, which solve problems in specific field of
knowledge such as medical conditions, Perception
Systems, that allow the technology to perceive world
with sense of hearing and sight and Natural language
Systems, that requires a dictionary database to learn
the meaning of the words.
 Trademark, Copyright and Patent laws exclusively
need to be examined in light of the developing and
rapid use of AI.

Here are the 12 questions that
USPTO is seeking public
comments on:
 1. What are the elements of an AI invention?
 2. What are the different ways that a natural person can
contribute to the conception of an AI invention and be eligible to
be a named inventor?
 3. Do current patent laws and regulations regarding inventorship
need to be revised to take into account inventions where an
entity or entities other than a natural person contributed to the
conception of an invention?
 4. Should an entity or entities other than a natural person, or
company to which a natural person assigns an invention, be able
to own a patent on the AI invention?
 5. Are there any patent eligibility considerations unique to AI
inventions? For example: Should an assessment of the level of
ordinary skill in the art.

12 questions continued…
 6. Are there any disclosure-related
considerations unique to AI inventions?
 7. How can patent applications for AI
inventions best comply with the enablement
requirement, particularly given the degree of
unpredictability of certain AI systems?
 8. Does AI impact the level of a person of
ordinary skill in the art? If so, how?

12 questions continued…
 Are there any new forms of intellectual
property protections that are needed for AI
inventions, such as data protection?
 11. Are there any other issues pertinent to
patenting AI inventions that we should
examine?
 12. Are there any relevant policies or practices
from other major patent agencies that may
help inform USPTO’s policies and practices
regarding patenting of AI inventions?

 United Kingdom
 The IP rights of a creator i.e., the person who makes/
creates a substance are characterized under the
Copyright Designs and Patents Act, 1988 (the CDPA).
When an AI or a machine creates a substance, the IP
rights under the CDPA are held by the creator of the
machine, provided that the person is in direct control
of the working of the machine with AI.
 In situations where the substance is produced by AI
and there is no human creator, the IP rights will be
held by the person making the game plans by which
the work (AI) is produced. Hence, under the UK law,
AI is not viewed as a creator.

 United States of America
 The Copyright Act in USA protects original
expression and not the ideas behind those
expressions. In the case of protection of AI data,
there is no particular provision that has been
provided but the Act states that for a copyright
requires ‘an original work of authorship’.
 The author has been interpreted through the US
courts as a person or human being and thus while
using AI, for any copyright protection, there should
be human contribution in creative process.
 The AI being used is regarded as a tool for the
process of copyright.

 China
 In China AI is considered to include algorithms
and data which are protected by intellectual
property. Under Chinese law, the copyright of AI
protects not only the expression of the algorithm
but also the compilation of data. For the protection
of the core idea of AI, patent is used. China has
been able to put up a better structure for
protection of AI. Though there are still ambiguities
lying with respect to the ownership, especially in
case of multiple stakeholders.

 Japan
 Japan has been very advanced in regulating the AI with IPR.
It had formulated the ‘AI Strategy 2019 AI for Everyone-
People, Industries, Regions and Governments (2019)’ which
focused on identification of problems and examination in
future. It also made changes in its Copyright Act by amending
Article 30-4, 47-4 and 47-5 which introduced the flexible
limitation provisions for technologies like IoT and
 AI. Furthermore, the database is also protected through
Article 12-2 (1) of the Copyright Act and it states that even if
the whole database is protected, the rights of author of a
work that forms a part of that database will not be
affected. However, there are still ambiguities with respect to
ownership of data and the issues relating to patent still needs
to be addressed.

 The development model in India includes a
huge amount of technological advancement
which includes AI as well.
 The use of AI is not limited to social media or
entertainment but has accelerated to retail as
well.
 From online shopping to the use of online car
services, the country saw a rapid change in
the technology.

Trademark & AI
 In the case of Louis Vuitton v. Google France, there was an
issue of keyword advertising and the automated choices
which are made through Google and it was alleged to be
infringing the trademark of the petitioner.
 Lush v Amazon brought out the need to structure the
trademark laws as well as for future issues. Lush had not
allowed Amazon to sell its products on the website. Through
a bidding process, Amazon had bought the keyword ‘Lush’.
 Therefore, even if Lush was searched through Google, it
would show Amazon advertisements as well. And though
there were no sales on the website, the AI would keep
showing the similar products based on the searched
keyword. A suit for infringement of trademark was filed by
Lush and the court found Amazon guilty for the same.

Legal Regulation of AI
 There is no particular act or provision to regulate
AI specifically. The existing laws do not cover the
ambit of AI and are based on the old intellectual
property types like books, creative writing and
discoveries.
 The ambit of AI is much more complex and needs
to be addressed in a particular way, different from
the existing regime.
 Under the Patents Act, computer programs,
business methods or mathematical formulae are
not considered as patentable inventions.

 Furthermore, the terms ‘patentee’ under
Section 2 (p) of the said Act and ‘person
interested’ under section 2 (t) of the said Act
creates a barrier to include AI in its scope.
 The Act specifically terms out the patentee of
any other person interested to be human.

Legal Regulation of AI
Continued..
 Under the Copyright Act, there are two basic
doctrines which define the originality of the work
under this Act- Sweat of the Brow Doctrine and
Modicum of Creativity. Since the doctrine states
that a minimum degree of creativity is also
acceptable, the original work of AI can be included
in it.
 However, the rights of copyright are given to the
‘author’ of the work done under section 2 (d) of
the Act. Author in this act has been implied to be a
human or legal person, thus, making the idea of
machine to be protected under this act restricted.

A I owning IP
 Firstly, if AI is given the same position as an individual
for creating or inventing a work, then it should also be
made to enter the field of infringement and
enforcement.
 AI needs to have a legal identity.
 Thirdly, there is an issue of transparency of AI
systems with respect to holding of IP rights by them. If
a situation arises where AI systems are protected
under trade secrets, this could be an obstacle to the
transparency of the AI systems. As times are
progressing, there is more need and importance of
transparency and responsibility for the process of
decision-making.

Suggestions
 A specific test has to be formulated which can
differentiate between AI created works and AI-
aided works. The accurate IP holder can be
determined, thereon.
 The patent law clearly demarcates between an
inventor and an invention but the category under
which AI systems fall is not yet determined. The
law has to be clearer and more specific and
include such provisions in an understandable
language.
 Similarly, the definition of authorship under the
copyright act should be examined and changes
according to the changing dynamics.

 There have been ambiguities in trademark laws as well. The
status of AI as a customer and the functioning of AI,
especially in case where human common sense plays a
major role need to be defined.
 WIPO has already taken cognizance of the upcoming issues
with AI and the same has been discussed through various
means, however, proper policy should be formulated in an
international level.
 A specific act has to be passed which deals with data
protection with respect to the AI software. It must cover all the
civil and criminal liabilities and offences which amount to the
same.
 IP sharing between the inventor of the AI and the AI itself can
be a possibility in the years to come. It will become an
essential part of the general advancement plan and
maintainability. The future is loaded with indefinite
possibilities and interesting motoring.

Artificial intelligence and ipr

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