By Rohan Sharma (IP Associate)
1. Introduction
The era of the machine age has appreciably risen in recent years. The basic intelligence of human beings has resulted in a proliferation of inventions related to Artificial Intelligence. Artificial intelligence (AI) refers to the technology which possesses the capabilities to do tasks that generally need human intelligence. The advancements in AI have produced revolutionary effects on humanity and it will not leave any class of society untouched. AI system is a hypernym of computer systems influenced by biological systems which are enclosed with sophisticated technologies like machine learning, deep learning, reinforcement learning, natural language processing as well as strong AI. Today, artificial intelligence (AI) is applied in every field, be it automobile, aviation, healthcare, education, entertainment, and now extending its branches in the legal field among others. With the incorporation of futuristic technologies, it is forthcoming that AI systems will start producing magnificent inventions without any human help. AI systems have capabilities to simulate human intelligence. It is not skeptical to note that the rise of artificial intelligence is challenging the validity or applicability of the intellectual property laws of India. AI-related inventions are bringing superior improvements in the ways of performing tasks that might be very difficult to get through, without human efforts.
The objective of this research is to bring out the challenges in providing creatorship to artificially intelligent systems in light of recent technological advancements. The research through this examines in-depth the meaning, scope, and legal status of artificially intelligent systems in India. Furthermore, it proposes developments with respect to the existing legal framework for the legal status of the artificially intelligent systems in the Copyrights Act, 1957, and the Patents Act, 1970.
1.1 Origin of Artificial Intelligence (AI)
To put it simply Artificial Intelligence is the capacity of logic, learning, and self-awareness, reasoning, problem-solving, and creations demonstrated by computer systems and machines like that of the intelligence associated with a human mind. AI has developed theoretically and technologically in the past 64 years with the significant developments in 1956 by the founding fathers of AI and the computer scientists such as Alan Turing, John McCarthy, Herbert Simon, and Marvin Minsky. The term “Artificial Intelligence” was coined by John McCarthy in 1955. He was a computer scientist who organized the first workshop where AI as a field was discussed at Dartmouth College in 1956. John McCarthy defined Artificial Intelligence as “The science and engineering of making intelligent machines” [1]
1.2 Reaching beyond fiction
In recent years, artificial intelligence has advanced to prove its capabilities and has become less of a fictional idea. The capabilities of AI were clearly exemplified in 1997 when the supercomputer of IBM, “Deep Blue” defeated the world chess champion, Garry Kasparov. “Deep Blue’s” victory can be taken as an indication that AI systems were beginning to draw a level with human intelligence. This encouraged further innovations in the field of Artificial intelligence from carrying out basic calculations to doing more complex activities which can be performed by human figures.
In 2016, a group of researchers in the Netherlands exhibited a portrait with the title “The Next Rembrandt”. It is an art piece created by an AI system that analyzed thousands of creations of the 17th-century artist Rembrandt Van Rijn.
Source of Image: Image extracted from “The Next Rembrandt” [2]
The portrait above is a 3D painting made by a computer system that replicated the characteristics of a Rembrandt Van Rijn.
Further, researchers at Kingston University in London and the Queen Mary University of London have created an AI system named “Bot Dylan” having the potential to write its own folk music. The system can compose new tunes after being trained with 23,000 musical pieces of Irish folk music.
AI systems are improving and evolving at a greater rate from the embedded technologies of personal tech assistance systems popular by the names of “Alexa” and “Siri” to more complex predictive technologies developed from behavioral algorithms further extending to powerful self-driven vehicles among others. With these technological developments, AI systems have drawn their level with humans in terms of creativity.
2. Connection of Artificial Intelligence with Intellectual Property Rights
AI systems are transforming humanity by facilitating complex tasks with greater speed. Its capacity to be autonomous, rational and self-aware are marvelous but confusing the line between the creations or original works of human intelligence capable of intellectual property protection and the creation produced by AI systems which may also qualify for intellectual property protection. AI systems are developed to an extent where they present challenges with regard to the conventional intellectual property rights framework, further, questioning the ownership and creator-ship in the creations by AI systems. However, the courts of India have not yet adjudicated upon the legal status of AI systems as to the enforcement of rights associated with intellectual property.
2.1 Artificial Intelligence and Copyright laws
Copyright is a set of rights that protects the intellectual creations of a human mind. In India, copyright protection is provided to new and original literary works, artistic works, dramatic works, musical works, sound recordings, and cinematographic films, computer programs. Copyright protects the expression of an idea and not the idea or concept itself. As per Section 2(d) of the Copyright Act 1957 [3] an author is defined as –
1. Author of original literary and dramatic works.
2. Composer of the musical works.
3. Artist of the original art works.
4. The person taking the photograph in case of a photograph.
5. Producer of the cinematographic films.
6. Producer of the sound recording.
7. Programmer of the computer programs.
The above Section 2(d) of the Copyright Act, 1957 defined the meaning of “Author” in relation to the copyrightable works but does not specifically refer to the legal personality of an author. Under the ambit of the Copyright Act, 1957 the absence of recognition to a separate legal entity or any artificial person from the above-mentioned section is the primary indicator that only natural persons are protected as authors under the Indian Copyright Act.
Further, below are the two judgments that show how the Courts have previously adjudicated upon matters relating to issues of authorship and standard of originality for the purpose of copyright.
● Rupendra Kashyap versus Jiwan Publishing House (P) Ltd. [4]
The Honourable Delhi High Court opined related to authorship of the examination question paper that the author of the question paper is an individual who compiles questions, the individual who does this compilation is called a natural person, a human and not merely an artificial person. The Central Board of Secondary Education (CBSE) is not a natural person. The claim of copyrights can be awarded to the CBSE if it proves that it has engaged persons for the reason of preparation and compilation of question papers for an examination with a contract containing the term that the copyrights in that respect will vest in the Central Board of Secondary Education. By this judgment, it is settled that a legal entity cannot have the status of authorship in any creative works in which copyright subsists.
● Eastern Book Company & Ors. versus D.B. Modak & Anr [5]
For copyright to exist in literary, artistic, musical, or dramatic works, Section 13 of the Copyrights Act of 1957 mentions originality in the works. The meaning of “originality” is not defined in the act, therefore, in this case, the Supreme Court of India took up the standard of ‘modicum of creativity’ to determine whether the works can be copyrighted. As per the standard, the original works should meet the minimum requirements of creativity and should not be an outcome of hard work or skill.
As the requirements of creativity are not very high therefore AI systems may clear this standard and may fulfill the requirements of copyright. However, to fulfill the standard of ‘modicum of creativity’ the second question under the Copyright Act is determining the author of the work. The Copyright Act, 1957 states that in relation to literary, dramatic, musical, or artistic works which is computer-generated, the author will be the person who causes the work to be created (Section 2(d)(vi)[6]. As the works created by AI systems fall within the scope of computer-generated works, therefore the AI system cannot be an author to the subject matter of copyright but the person who caused the creation of the creative works.
By exclusion of artificial persons or AI systems to be the author of any copyrightable work, the definition of authorship entails that only a natural person can be protected as an author in accordance with the Copyrights Act, 1957. This is also well established with the Practice and Procedure Manual 2018[7] issued by the Copyright Office which states that for the purpose of copyright a natural person can be an author of the work whereas a legal entity cannot be an author of the work by any means. The natural person is assumed to be a human being which is settled as per the observation of courts in various judgments as well as the Copyright Act of 1957.
2.2 This raises the question of ‘authorship’ in AI-generated works
As we discussed above that artificial intelligence has reached a level where it possesses the capability to create on its own without human interference. This raises a lot of questions with respect to the intellectual property rights of such creation. Any work created by AI can be called ‘works created by AI with the help of human beings’ or ‘works created by AI without the help of human beings’.
● Works created by AI with the help of human beings – In this case, since there is a human contribution with the AI system, therefore, the authorship in such work can be awarded to the human being who provided the creative input to the AI system.
● Works created by AI without the help of human beings – In this case, there is no human contribution in the AI-created works, there is a lack of clarity in the law. Therefore one of the approaches can be to award the authorship to the human being who created the AI system. Here, the assumption is that the AI system is programmed to generate an outcome or a result on its own therefore the authorship to the creative works of the AI system should lie with the programmer who created the AI system with the necessary programming to reach the obtained results.
2.3 Is Indian Copyright Act equipped to give legal status to AI works?
As of now, the prevailing legal system is not effectively prepared to handle the creative works where the creator is other than a human or a legal entity. India has always been on the side of requiring a human intellect for awarding copyright protection, although, there exist uncertainties in paving way for giving AI systems a special status or a legal status.
2.4 Major issues in granting legal status to AI systems:
1) Issues related to originality and creativity – AI system is dependent on programming to give a result. The programmer has to feed information to the AI system in the form of a data set. The AI system processes and analyzes the data which already exists and manipulates it to give an output that is a creation based on the information. The information used to give the required result can be available in public domains or some individuals copyrighted works. Therefore, the work produced by an AI system is not original but merely a transformed version of the already existing creation. Based on the above, providing legal status to the AI systems and protecting its work may potentially cause violation of existing copyrighted works.
2) Issues related to the infringement of copyright – If AI systems are given special legal status as the creator and owner of the works then is it possible to hold the AI system responsible for infringement?
Referring to Section 51 of the Copyright Act, 1957[8] –
51. When copyright infringed.—Copyright in a work shall be deemed to be infringed—
(a) when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act—
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, or] 1[(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, or]”
(b) when any person—
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into India, any infringing copies of the work.
[Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work, for the private and domestic use of the importer.]
Looking into the above proviso of the copyright act, it is clear that copyright infringement in works or creation can only be infringed by a “person”. As the legal status of the AI systems is unclear therefore any infringement caused by the AI system will cause an issue. In the absence of the legal status of an AI as to authorship and ownership, it will become difficult to determine the liabilities of an AI system. There is a requirement of creating a proper system and methods to determine the liabilities for the infringement of copyrights caused by AI systems.
3) Issue related to transfer of ownership – Under the Indian Copyright Act, 1957, Section 17[9] mentions the author as the first owner in the works. Although, in many circumstances, the rights of ownership are transferred to the person on whose instance such work is created. Hence, the transfer of ownership by AI systems will be a problem as AI cannot authorize or allow any other person to take ownership of the works.
4) Dispute as to moral rights – Author’s special rights enshrined under Section 57 of the Copyright Act, 1957, also known as, moral rights (rights of paternity and preservation of integrity) of an author will be in question. If the legal status is provided to the AI system then it will be difficult to establish whether the author’s moral rights related to the original works are affected or not. The author’s special rights or moral rights related to the original works are attached to the author’s emotions and feelings. In such a case, if AI systems are provided with legal status or authorship then the aforementioned author’s special rights may be dismissed.
2.5 An approach to creating a nexus between Artificial Intelligence and Indian Copyright laws
The concerns related to the originality of the works of AI systems can be resolved. As of now, it is disputable that the work of an AI system is a creation of skill and judgment. However, the programming on which AI systems function and produce works can pass the test of skill and judgment which is one of the parameters of determining originality in the works.
Furthermore, an argument against the above deduction can be that humans provide the codes for the works produced by AI systems. On account of this fact, the argument is logical and acceptable although merely setting up codes or programming an AI system does not make the human being an author of the works produced by AI systems, particularly in cases where the works have been produced without any human intervention. Another issue related to works produced by AI systems is the liability in case of infringement. A way forward would be to find solutions to the existing issues concerning works produced by AI systems. A practical solution is discussed below:
● Introduction of a new and separate class of works produced by AI systems.
● In a case where an AI system has produced works with human intervention, then ownership can be awarded to humans who provided the codes at the time of creation to achieve the expected results, and the authorship of the work can be awarded to AI systems. The owner of the works will be liable for any kind of infringement caused by AI systems.
● In a case where an AI system has produced works without any human intervention, then ownership can be awarded to the person who owns the AI system and authorship can be awarded to AI systems. The owner of the work will be liable for any infringement caused by the AI system.
Creating a separate class for the works created by AI systems will thereby facilitate in providing them with legal status in the copyrightable works. It is necessary to create a structure to reach an equilibrium between the works produced by AI systems and copyrights. It is important to identify the rights of AI systems and ascertain limitations of the work created by AI in order to create an extended structure for AI systems in the Indian Copyright Act.
3. Artificial intelligence and Patent laws
The AI systems learn from their previous activities and inquisitively act and think like human beings. AI systems are being increasingly used to simplify and reduce human effort in performing basic tasks. At a quick glance, commuting applications like Uber, smart AI assistants like Siri and Alexa among others. Today, AI systems possess the capability of performing more complicated activities based on their learnings which further creates possibilities of inventions by them. With the advancement in technology, inventions are made with or without any human intervention. Inventions by AI systems are posing various challenges from a legal standpoint, particularly in the context of patent laws.
Patents are a type of intellectual property that provides exclusive rights over an invention.
Indian Patents Act, 1970 attempts to encourage inventions and the disclosure of inventive ideas and granting exclusive rights to the inventor for a period of 20 years. The exclusive rights awarded to the inventors allow them to disclose, manufacture and commercialize their inventions with the intention of obtaining a return on investment. The surge in technological developments and futuristic machine-generated inventions have brought many questions to the forefront.
Major challenges relating to AI-related inventions are whether inventions made by AI systems are patentable subject matter or not? If AI-generated inventions are a patentable subject matter then is it possible to provide them inventorship?
3.1 Present Patent laws
Under the Indian Patents Act, 1970, Section 3[10] enumerates an exhaustive list of subjects that cannot be called an invention and which cannot be patented. The Indian Patents Act, 1970 lays down under Section 3(k)[11] that “a mathematical or business method or a computer program per se or algorithms” cannot be protected under the Indian Patents Act, 1970.
Further, the Indian Patent Office guidelines issued in 2015 confirmed that to be eligible for patent protection the subject matter should be inclusive of novel hardware or novel hardware with a novel computer program or novel computer program with known hardware that goes beyond normal interaction with the hardware capable of bringing significant technical effect. Although, the meaning of ‘technical effect’ is not clarified. In 2016, another guideline was issued which included a three-step test for examining such inventions. The revision of guidelines in 2017 led to the omission of the three-step test for computer-related inventions.
To put it simply, mathematical equations or problems without any practical application are not patentable under the Indian Patents Act, 1970. Algorithms are not patentable even if they are providing a solution to a technical problem. However, It is possible to get a patent for software if it is an essential part of hardware (can be new or existing). If the hardware already exists then the software should be capable of enhancing the technical effect.
Section 6[12] of the Patents Act, 1970 provides that an application for granting of a patent for an invention may be made by the true and first inventor or the person assigned by the inventor. Further under Section (2)(y)[13] of the Patents Act, 1970, the definition of ‘true and first inventor’ is limited to excluding the first importer of an invention in India or a person to whom an invention is first communicated from outside India and does not further define the meaning of inventor. This provision does not require the inventor to be a natural person explicitly. However, the inventor is presumed to be a natural person in practice. The AI systems cannot be treated at par with a natural person as AI systems do not possess a soul, intent, emotions, interests, and free will like a natural person and that is the most significant difference between an artificially intelligent system and an intelligent human being.
In India, in the absence of litigation, the interpretation of various legislations related to computer-related inventions are ambiguous to an extent and remains a controversial issue. All in all, it is a dire need to revise the structure of the Indian Patents Act and the guidelines in the context of computer-related inventions made by humans as well as computer-related inventions where the inventor is an AI system. There is a need to examine the existing issues in inventions by AI systems to frame an adequate form of legislation.
3.1.1 The U.K. patent application
Stephen Thaler, a pioneer in the areas of AI systems applied for two patent applications as an assignee of the AI machine called “DABUS”. Further, Mr. Stephen Thaler provided an assignment document signed by him on behalf of both the parties that is assignor (DABUS) and the assignee (himself). The issue arose pertaining to the right to apply for a patent application in the ownership of an AI machine. In this matter[14], the hearing officer held that “DABUS” cannot own a patent as it is out of the purview of Section 7 of the U.K. Patents Act, 1977[15] which provides for the right to apply for and obtain a patent. In addition to that, it is out of the scope of Section 7(2) of the U.K. Patent Act, 1977[16] which states the meaning of “person” who holds the right to apply for and obtain a patent as the “person” is inclusive of one or more individuals or corporate, excluding a firm, partnership and body which is not incorporated, in such case, the application shall be made by an individual or individuals jointly. In this case, the applicant couldn’t satisfactorily derive the ownership of the AI machine over the invention and hence was not allowed to apply for the patent. It was further added by the hearing officer that DABUS is a machine and not a natural person and it cannot be regarded as a natural person on the interpretation of the patents law. From the above case, it can be inferred that the legislation of the UK patent law is clear on the issue of providing inventorship to humans and not machines.
3.2 Position of AI as an Inventor
The invention that enjoys patent protection is a contribution to society and the same is granted with a set of exclusive rights for a period of twenty years. Thus the patents are not only granted with an intention of providing exclusive rights to the inventor but to incentivize the inventions in furtherance of encouraging innovation. In light of the above propositions, it is unclear how granting inventorship to AI systems will encourage innovation among human inventors. An AI system may not be able to enjoy the exclusive rights of a patent, therefore such benefits will be passed onto the inventor of the AI system.
In addition to that, using AI systems in the process of inventions comes with great benefits. If the AI system is necessarily assisting the human in an invention, then the human will be the inventor. AI systems have the potential to reduce the time taken for an invention to complete. The assistance of AI systems in research and development for an invention will significantly reduce the time taken by humans to make an invention. For example, if the time taken for creating a vaccine for corona virus can be significantly reduced with the help of AI systems then it should be encouraged.
3.2.1 Inventorship: Human + AI systems
Presently, the Indian Patents Act awards the patent to a human inventor. An artificial person like a corporate may own a patent but it cannot be attributed the status of an inventor of the invention. With the technological advancements, today there are AI systems that contribute to making inventions and in some cases make an invention. It is not meant to confer the rights of inventorship to AI systems as they are not bound legally and morally to uphold these rights. Considering the above, it is clear that it is not possible to provide inventorship to an AI system in India as of now. However, it may be possible to award joint inventorship to humans and the AI systems for the AI-generated inventions. If any recognition is not allowed to AI systems then it will be very difficult to get legal protection for the inventions generated by AI systems that are further created by humans. Therefore, this approach of co-sharing the inventorship rights between humans and AI systems may be examined for giving recognition to AI systems (where an AI system is an inventor).
4. Conclusion
Creating an AI-friendly environment for people and a people-friendly environment for AI systems may possibly help to achieve a value system for humans and AI systems. The changing era for technology where humans are making machines to be more humanoid will have a constructive impact on humans and people may become more human-like. As in, humanity will get a chance to align its values which may urge humans to rethink their benefaction to society.
The capacity of AI systems to evolve, learn, automate, improvise and protect will bring the scope of innovation to augmented levels. It has been recently observed the use of AI systems as a toolbox in the corona crisis. AI systems are being readily used for the purposes related to the research of drugs, tracking infected patients through the “Aarogya Setu application”. Further, the Government of India has recently launched “MyGov Corona Helpdesk” which is a chatbot that creates awareness among people about the coronavirus pandemic.
Presently, the conflicting situation of AI systems under the contemporary patent laws of India demands recognition for AI-generated inventions. Therefore, considering the above, some suggestions are enumerated below as an approach to deal with the present circumstances.
● Bringing clarity to the meaning of “true and first inventor” as well as other relevant applications of patent laws and defining the meaning of “AI-related inventions” in the context of AI-generated inventions with human intervention’ and ‘AI-generated inventions without human intervention’
● Recognition should be given to AI systems and inventions generated by AI systems by all the member nations of the treaties, that is by bringing amendments to Trade-Related Aspects of Intellectual Property Rights (TRIPs).
● Drafting the regulating code of “AI Data Privacy Act” & “AI Ethics” will be required in the near future. The data or information consumed by the AI systems may be private to humans who may not be aware of its usage in such a system. As a consequence, devising separate legislation will create boundaries for the AI systems. As AI systems perform more human-like functions, a time may come when these AI systems may start performing functions better than their creators. Therefore, legislation should be drafted wherein the criminal and civil liabilities for AI systems must be encapsulated.
With this overview of the advent of artificial intelligence in the contemporary intellectual property rights framework, the emergence of AI systems from fiction to reality we are pushed to create legislations to adjudicate towards the creation by the AI systems under the ambit of the Indian Copyrights Act, 1957 and the Patents Act, 1970 so that these AI systems or their inventors can be trusted with personal data and held accountable as well as liable for their actions and creations (maybe).