“AI is likely to be either the best or worst thing to happen to humanity” – Stephen Hawking. This conundrum is a very real one today where on one hand we enjoy the assistance provided by Alexa and Siri, like the thought that someday in the near future  our watch will be telling us that we are going to have a cardiac arrest in an hour, enjoy the thought of our home being warm and coffee brewing when we get home etc, and on the other hand rue the fact that Amazon and Facebook keep pushing products in our face depending on our browsing and purchase histories and more so the fact that our lives are now being monitored right from what we are watching on Netflix to what we are buying, eating, messaging, talking and considering. The big question that people of my generation are now considering is whether technology is dumbing us down where we have forgotten to reason, research, consider and then decide or has it made our lives so much easier thereby freeing up our time and bandwidth to pursue more meaningful things, whether social media has made us more unsocial and we are now documenting our lives rather than living them.

While we still battle with this, the progress in technology continues for what I like to believe is the betterment of mankind, and the age of information is supposed to precede the space age — as may also be seen from Elon Musk likely to pip Jeff Bezos to be the new richest man in the world! I echo the thoughts of Rodney Brooks, the world-renowned Roboticist, “artificial intelligence is a tool, not a threat”. Not only does AI substantially aid in reducing workload, but it also provides objectivity and structured outcome – one which aids and assists humans to deliver proficiently within a short span of time. From the fear evoked by the likes of the Terminator franchise and Person of Interest to the sweet considerations of Wall E!

Definition of AI and intersection with IP

The birth of AI dates back to 1956 when the term was coined by John McCarthy at the Dartmouth Summer Research Project aimed at developing the concepts around ‘thinking machines’.

As per Oxford Learner’s Dictionary, artificial intelligence is ‘the study and development of computer systems that can copy intelligent human behaviour[1] – this covers machine and deep learning within its purview.  

Intellectual property (‘IP’) is the intangible creation and innovation of the human intellect, covering AI within its umbrella. The protection and enforcement of AI itself along with the work created by AI intersects with intellectual property rights. As an example, let’s consider WALL-E again. From the coding to the appearance of the robot to evaluating who are the authors and owners of the work created by WALL-E, inter alia, are facets of IP laws. Albeit the laws governing AI and protection thereof are still in the amateur stage, the nuances and complexities relating to AI and IP is a burning topic of discussion. I have tried to cover a few of the issues herein under.

Copyright and AI

The deliberation on the protection of a copyrightable work created by a non-human surfaced with the famous case of ‘monkey-selfie’[2], where it said that while monkeys can take selfies, only a human can copyright. The case was not finally decided as it was settled out of court. However, the copyright laws of most (if not all) countries are fairly straight on this aspect so far. Indian law particularly states that copyrights can be owned ONLY by a ‘natural person’ – which of course includes companies, firms, partnerships within its purview.

The potential issues right now are two-fold: One, if an AI creates an original piece of work (literary, artistic, photographic, etc) without human intervention then who would be the copyright owner – the natural person who wrote the code and created the AI or the person who owns the AI? The second aspect would be if an AI plagiarises or infringes another’s copyright without any ‘human instigation’ then who is to be punished? I would assume that this would depend upon the terms of the contract between the coder/creator of the AI and the buyer, so fairly straight forward. We, at this point, are assuming that AI will always be created as well as owned by a natural person. If this scenario changes with the progress in technology, then we may have to look at amending laws. 

Trademarks and AI

With the advent of the AI era in marketing and product branding, we can already witness a downfall in the consumer’s decision-making during online shopping. E-commerce companies are using AI to recommend products to the buyers by analyzing their search history, buying profile, past purchases, etc. Trademarks are source identifiers that help the consumer identify the brand they like/trust and wish to buy from. With the advance of AI, brand owners fear that consumers may be deprived of their choice thereby affecting the brand value and sales. A notable case in the United Kingdom dealt with a similar challenge. In the case of Cosmetic Warriors Ltd and Lush Ltd v. Amazon.co.uk Ltd[3], the claimants brought an action against Amazon alleging that Amazon infringed the trademark rights in their mark ‘Lush’. In the instant case, the claimants were successful in proving that Amazon used their mark ‘Lush’ without their consent. Amazon had bid for the word ‘Lush’ with Google AdWords service; hence, whenever a consumer would search the products under the brand ‘Lush’ on Google search engine, an advert would show that ‘Lush’ products are available on Amazon, whereas, Amazon does not sell ‘Lush’ products and whenever a consumer would click on the said advert similar products will be exhibited on the Amazon website (but not ‘Lush’ products). Additionally, if a customer directly goes to Amazon website and searches for ‘Lush’ products, similar products will be shown, instead of a message that no ‘Lush’ products are available.

Looking at how much AI can control choices of customers and maneuver their decision-making; such cases are likely to be on a rise in the near future, unless, the elephant in the room is addressed and loopholes are plugged by forming and implementing relevant policies.

Patent and AI

A patent grants an exclusive right to its holder over an invention and the rights holder is entitled to exclude others from making, selling, or even using the patented invention for a limited term.

As per the information of World Intellectual Property Office, innovators and researchers have filed applications for nearly 340,000 AI-related inventions and published over 1.6 million scientific publications[4]. India has been no exception and witnessed several AI-related patent applications in the last few years. It would be fair to state that scrutiny and processing of applications filed for AI-related work have not been an easy ride for officials due to the uncertainty in the law. As per the Indian Patents Act 1970, there is no set criterion which lays out the extent of human intervention required in a process or product established by AI. That said, under the present provisions, patent protection is offered to the first and true inventor, the same being a ‘natural person’.

The obvious sets of questions are of the ownership and the liability arising out of the action of AI and dealing with the objection of non-obviousness of the innovation to the person skilled in the art.  The question of liability arising from an act of AI continues to be of grave concern. Considering that AI is unable to hold rights in its creation, therefore, AI appears to be quite helpless when it comes to giving consent to third-parties and a similar issue comes with assigning its rights. Unfortunately, the law is in the grey area and the ambiguities pose multiple challenges and concerns relating to the protection and enforcement of the process/product created by AI.

Conclusion

It is apparent as daylight that the changes in the regulations have not been abreast with the dynamic developments in the technology field. Given the significant presence of AI in our daily lives, it is indeed the need of the hour to relook at our existing laws, which will require remodeling after due consideration and comments from the stakeholders. It is essential that our laws are geared well enough for us to enjoy the benefits of technology without it affecting our rights.

****

Gunjan Paharia is Managing Partner at ZeusIP Advocates LLP.


[1] https://www.oxfordlearnersdictionaries.com/definition/english/artificial-intelligence?q=artificial+intelligence

[2] https://cdn.ca9.uscourts.gov/datastore/opinions/2018/04/23/16-15469.pdf

[3] https://www.bailii.org/ew/cases/EWHC/Ch/2014/181.html

[4] https://www.wipo.int/edocs/pubdocs/en/wipo_pub_1055.pdf

___________

This article has been published in partnership with Forbes India and first appeared on forbesindia.com:

https://www.forbesindia.com/article/legalpowerlist2020/intersection-of-artificial-intelligence-and-ipr-gunjan-paharia/65843/1

Disclaimer: The views or opinions expressed are solely of the author. 0 CommentsClose Comments

Leave a comment