In the past two decades, Artificial Intelligence (“AI”) has established a unique place in our lives. From Apple’s Siri to Amazon’s Alexa to Google’s SmartCompose, dependence on AI has become an essential part of our lives. Due to its utility, AI has also extended its presence in the field of research and development, where AI, through their machine learning abilities, for instance, has created new medicines for treatment of diseases1. The presence of AI has also been acknowledged in the field of art wherein AI is creating novel music and literature2. The growth of AI in the field of creation and innovation poses interesting legal questions about the ownership, authorship and the existence of any rights in such AI created works.
The NITI Aayog discussion paper classifies AI as “a constellation of technologies that enable machines to act with higher levels of intelligence and emulate the human capabilities of sense, comprehension and action”. From the above, AI can be simplistically classified as technology that is created by a human, improved by a machine and has the power to disrupt almost all aspects of human existence. Technology so developed can behave intelligently by thinking as a human, or even surpass humans.
In June 2018, NITI Aayog released a discussion paper “India’s National Strategy for Artificial Intelligence”, seeking to develop a strategy to leverage AI for economic growth, etc. Several sectors – such as manufacturing, fintech, health, retail, education and infrastructure – have been identified as areas that can benefit the most from using AI to solve India’s needs. However, there has been no discussion on how to protect the AI and its other legal implications. In the present article, we will look at the existing regime under the Copyright and Patent laws to decipher if any rights can be granted to the invention/work created by an AI under the said legislations.
The Indian Copyright Act, 1957 (“Copyright Act”), recognizes copyright in original literary, artistic, musical and dramatic work, cinematograph films and sound recordings3. The Copyright Act specifically recognizes copyright in a computer program or software4 with the creator of the computer program as its author5. To qualify as a copyright, the test is that the work should involve some degree of creativity. A combined reading of Section 2(o) and 2(d) of the Copyright Act, as mentioned above, can be interpreted to mean that an author of a software program that created the AI is also the author of the literary, artistic or musical work created by the AI. Therefore, in my opinion sufficient safeguard is provided under the current regime of Copyright Act to protect works created by an AI.
Similar approach can also be seen in the laws of United Kingdom. The United Kingdom Copyright, Design and Patents Act, 1988 (“CDP Act”), which provides the authorship of a literary, dramatic, musical or artistic work created by a computer-generated source to the person who took necessary steps and arrangements for the creation of work6. However, The United States Copyright Office (“USCO”) has taken the opposite approach when it comes to granting copyright created by AI. The USCO has applied the principle of “human authorship” that prohibits copyright protection of works not generated by a human author.
A liberal reading of the CDP Act and the Copyright Act, makes a case for granting copyright protection to works created by an AI, if the same can satisfy the minimum criteria of creativity required for vesting copyright protection. As for the authorship, the same can be given either to the person creating the software or layout or to the artists producing the song or literature using the AI.
Unlike the scenario under copyright laws where a natural person authoring the AI software can be recognised as the author of a copyright protected work created by AI. In the case of Patent law, the requirement of true and first inventor creates a serious problem, before the product of the AI can be tested on the anvils of statutory tests required to qualify as an “invention”.
Section 6 of the Patents Act, 1970 (“IPA”) states that an application for a patent for any invention can be made only by the true and first ‘inventor’ of the invention or an assignee. Further, a ‘patentee’, according to Section 2(1) (p), is the “person” entered on the patent office register as the grantee or owner of the patent. This suggests that an inventor and person must mean a ‘natural person’. However, Section 2(1)(s) defines ‘person’ to include the government, which is a non-natural entity. Moreover, ‘true and first inventor’ has an exclusionary definition and there is no mention of a natural person8. Thus, the Patents Act arguably does not require a particular threshold of human control or input in the invention process for granting patent rights per se, and frames the questions of inventiveness in terms of creation.
However, the inclination under the IPA, still appears to require human intervention for an invention to be considered patentable. Therefore, the first order of business is to decide whether an inventor must be a natural person. An interesting question which has crept in is if Sophia, a social humanoid robot which was granted citizenship by Saudi Arabia would be considered a ‘natural person’?
Due to the requirement of a natural person at the forefront of patents, various jurisdictions such as the European Patent Office (“EPO”)9 and Unite Kingdom Intellectual Property Office (“UKIPO”)10 have rejected patent applications where an AI is credited with the invention. UKIPO has even gone ahead and framed rules clearly stating that an AI is not acceptable as inventor and not providing the name of a natural person can lead to withdrawal of the patent application.
As mentioned above in relation to copyright law, where AI is being used as a part of the process in creating literature or an artwork, the role of AI is arguably no different to using any other tool, such as a typewriter. On the other hand, when AI is creating the invention with no human intervention, then, under the current law, no one can claim to be the inventor and it will not be possible to protect the invention by applying for a patent.
The latter approach to the provisions of patent law, that were drafted at a time when computer science was still in its infancy and machine learning only existed in science fiction has restricted the immense potential of AI to help innovation and development of technology. Allowing patents on AI created inventions can promote the development of AI, which will eventually benefit all the stakeholders in the society.13 Without recognising AI as an inventor and not granting any protection to AI created inventions will not only demotivate innovation but will also discourage people who develop, own and use AI.
Fast growing development in the space of AI has opened a pandora box regarding the policy framework that should be implemented to secure the benefits for all the stake holders. At present, various jurisdictions are struggling to find a solution in the present framework. However, as can be seen in the case of patent law, the present IP laws are found to be insufficient to deal with the issues of authorship and ownership of AI created works.
With the development of technology, it is important that the IP framework should recognise value of IP created by an AI and the same should be treated at par with IP created by a natural person with ownership rights vesting in the owner of the AI.
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