In contemporary times, there exists noticeable lacunae in the existing IP legislations due to the lack of foresight into the extent of technological developments . One of these issues is regarding authorship and inventorship of creative works and inventions to non-human entities. The origin of this discussion lies with the beginning of use of computer systems for generating creative works such as music or art. While an immediate solution was not required at the inception of the problem, the development in the artificial technologies has altered this position. This article specifically examines the position of an Artificial Intelligence (AI) involved in copyrightable works and patentable inventions.
POSITION OF AI
The growth of AI has led the IPR enforcers into a conundrum. While the laws solely provide for human authorship, the leading argument against it lays emphasis on the antiquity of these legislations. The existing AI algorithms have already come a far-way from the origin of AI systems. One of the first noted cases of use of an artificial consciousness’ independent thinking to decrypt codes sent during the reign of Nazi Germany. The computer design by Alan Turing in 1940 marked the beginning of use of AI in multiple fields. Now, AI algorithms are applied every day in the entertainment industry, research centers as well as in the publishing industry. The use of such systems has evolved from being a convoluted technicality to a simple and sophisticated technology.
While the existing IP laws are still efficient in resolving cases regarding traditional subject-matter, the traditional tests fail to consider all aspects of a case where an innovative algorithm should hold the authorship/inventorship rights of any creative work/invention.
AI as a Copyright Author
In the past few decades, there has been an involvement of AI in creation of copyrightable works. The emergence can be traced back to the 1950’s when there was an attempt to register some compositions generated by a computer software with the US Copyright office. While that attempt failed, since then, the involvement of the technology has substantially increased. Earlier, human input was a mandatory requirement for such creations, but today’s technology holds the potential to independently create works of art, music as well as literature solely based on the data programmed into it at its inception. Instances of this fast-paced technology include projects such as the Google Magenta which simulates the human brain for music compositions or the AI ‘Endel’ which was signed by the Warner Industries as a mood music composition specialist. This leads to endless possibilities while considering the capabilities of AI.
AI as a Patent Inventor
The technology behind an AI is to create an artificial consciousness which can mimic the human brain. This grants the authority to the technology to process and analyze data the way human beings can and develop inventions based on its individual, what can only be referred to as, thought process. One of the notable cases of an AI inventor is in the South African Intellectual Property Office where ‘DABUS’ an AI Device for the Autonomic Bootstrapping of Unified Sentience was listed as an inventor of a specific kind of designed containers in July, 2021. But due to the lack of precedential evidence, DABUS was rejected to be listed as an inventor in the European Patent Office. The reasoning behind the same was that as per the European framework, an inventor must be a natural person and have a legal personality. While the same case in the US court was decided in the favour of the AI where the court had held that while the owner or controller of a patented invention must be a natural person, the inventorship rights can be given to an AI. The reasoning elucidated that not granting a patent right for inventions solely created by an AI would be against the primary object of the patent law.
OWNERSHIP REQUIREMENTS OF INTELLECTUAL PROPERTY
The Intellectual Property Rights are regulated by different regulations specific to their subject matter. Copyrights in India is governed by the Copyright Act, 1957 (Copyright Act) which states the provisions for authorship of any copyrightable work. Patents are governed by the Indian Patents Act, 1970 (Patents Act). The act defines the persons entitled to be considered as an ‘inventor’ of a registered patent.
The Copyright Law under Section 13 defines what consists of a copyrighted works. These include ‘original literary, dramatic, musical and artistic works, cinematograph films; and sound recording.’ Further, the Copyrights Act defines the term ‘Author’ under Section 2(d) to include ‘the author of a literary or dramatic work, the composer of a musical work, an artist, a photographer, the producer in case of a work in relation to a cinematograph film or sound recording, and lastly, the person who causes the work to be created in case the work is computer-generated.’ The last clause of this definition can be applied in cases where an AI works along with a human being to create a copyrightable work, the need to amend the law still exists due to the lacunae created while questioning the authorship in case a work was solely created by an AI.
While there are no listed requirements of who shall be eligible to be an inventor in the Patents Act, a universal approach towards the same has set a standard which dictates that only natural persons can hold inventor’s rights in cases of patent registration. But Section 2(p) of the act defines a patentee as "the person for the time being entered on the register as the grantee or proprietor of the patent." Additionally, Form 1 of the act provides a heading of ‘other than natural persons’ under the category for an applicant. This creates a small window for widening the scope for including AI as an inventor. But since the original drafters of the Patents Act held an inherent bias that inventions were created only by natural persons, any attempt at including non-humans within the meaning of ‘inventor’ is bound to be obstructed with multiple technicalities.
While the arguments for inclusion of AI within the meanings of ‘Author’ and ‘Inventor’ are pervasive, there exists numerous technical grounds which need to be covered if there is to be an attempt to do so. The paramount reason cited behind the need for an addendum in both these laws is the developments in the available technologies and its capabilities. While an amendment to equalize AI to a human being is still widely debated, the possibilities such an amendment would open cannot be denied. A change this vast holds the potential to alter the very crux of the patent and the copyright laws worldwide, thus, playing a vital role in history.
Rajeev Kumar, Pankaj Musyuni, Who can be Named an Inventor- An Indian Perspective, https://www.lexorbis.com/wp-content/uploads/2017/11/Who-can-named-as-inventor.pdf
Russ Pearlman, Recognizing Artificial Intelligence (AI) as Authors and Inventors Under U.S. Intellectual Property Law, 24 Rich. J. L. & Tech. no. 2, 2018.
Sam Norris, Artificial Intelligence and Intellectual Property: Non-Human Innovation and the Ownership of Rights, November 6, 2020, https://medium.com/swlh/artificial-intelligence-and-intellectual-property-non-human-innovation-and-the-ownership-of-rights-ad38535c1cde
Vrinda Sarin, Artificial Intelligence The New Inventors, 15 October 2021, https://www.mondaq.com/india/patent/1121316/artificial-intelligence-the-new-inventors?
The Copyright Act, 1957, No.14, Acts of Parliament, 1957 (India).
The Patents Act, 1970, No. 39, Acts of Parliament 1970, (India).