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Pitfall in Providing Intellectual Property to Artificial Intelligence

Khurana and Khurana, Advocates and IP Attorneys India


Introduction

In this ever-developing world the development in technology is also spiking up drastically, we see the advancement of technology from the time we get-going-from bed to go-to-bed, with a clap we access lights, fans, even open and closing the door. Yes,this advancement has made our life easy but have we ever felt that the same advancement has made us lazy, and also has consequentially opened up the privacy of the individuals. In this blog we will not discuss about the impact on these advancements but about the drawbacks of providing intellectual property rights to these machines, we will be looking from all the possible directions where the humans would face the pitfalls if the patents are provided for the work created by the Artificial intelligence (AI). not to mention that the primary purpose of Intellectual property rights is being breached upon the same act. For instance,let’s take a look from a statement from WIPO “Intellectual property (IP) refers to creations of the mind, such as invention, literary and artistic work, designs and symbols, names and images used in commerce.[i]

 

Linkage of artificial intelligence (AI) and intellectual property (IP)

Artificial intelligence is a invention which has been programmed and brought to life by the work and creativity from human brain, here the programmer has worked on the coding through which the AI can perform its task, as the code are the sole work by the programmer he can claim the patent for the same and it goes same for the design of the AI as well. Here the AI as the whole is a creation from a human individual, but if in case the AI is made capable of creating a work (patent-able works) by itself, then will the patent be registered in the name of the creator of the AI OR will the AI itself will be given the rights of the patent. Recently has South Africa issues first ever patent for a work created by AI.

DABUS ('Device for Autonomous Bootstrapping of Unified Sentience) is the name of the AI, it has been regarded as the inventor and the and patent is produced in the name of its creator, Stephen Thaler. It is to be noted that the same patent application has been rejected in majority of the countries like USA, UK, AUSTRALIA, and more. It has to be noted that the South Africa patent is not narrow and does not have much of the requirements as others, their major requirement seems to be just a filling as to who is the creator. And it has become a viral debate between the law journals.

For instance, in Australia first when Thaler applied for patent mentioning the AI as the inventor, they gave approval for it but in an appeal from the Commissioner of Patent (Commissioner of Patents v Thaler [2022] FCAFC 62)[ii]in Full Federal Court of Australia   where they interpreted the statute and came to conclusion that an inventor should be a natural person and not something which doesn’t have a legal identity. 

The major misleading starts when the AI (DABUS) has been regarded as inventor, for me from my point of view I see the AI as a tool used for the creation, because I feel it’s the input from the programmer that has led the AI to invent its own creation. And the primary intent of intellectual property has been breached as they have rewarded AI as the inventor which is totally unacceptable. We can agree to the point if the creator of the AI is been rewarded as the inventor. Here if any criminal or civil liability raises then who will be held liable?  If it was the AI then how can it be penalized, and it’s a burden for the court to decide when it comes to choose between the creator of AI or the AI by itself.

If the full rights have been given to the AI itself then the sole purpose of IPR had been betrayed, until now in present law only regards humans as creators and hence, as IPR holders and infringers. It does not break up the creators of inventions as inventor and the machine owner. It goes beyond the law.

Let’s take up the example of movies like I ROBOT, TERMINATOR where they showed what all the impacts humans would face if the AI goes onto its own control, it is only safe for the humans only if the AI operates under the control of a human input. 

Unfair advantage

With the cruel minds and thoughts in this world there are some people who misuse the technology, one factor where I see they can manipulate is the date and time of the creation.

This might sound a bit illogical but if an AI recreates art produced by human and when they approach for patent for artistic creation, if the date and time of the work produced by the AI is manipulated and shown that the AI created the art before the humans then who do you think will get the patent rights? The human may have hard time to prove his burden of proof.

And like the case of DABUS the AI, the creator of AI is given the patent right and if the patent keeps on creating more and more inventions than the creator of the AI is the one who holds the patent rights and at time, he may not even know about how it was invented, here when I say he has unfair advantage lets relate it to the social benefits he gets out of it.

Effects on humans

Earlier we discussed that the technology also makes people lazy, let’s see how. Intellectual properties are the rights given to the creations by the humans but here if they approve patents under the Artificial Intelligence then the human dedication to the work will be wiped out drastically, here again it violates the primary intent of the intellectual property rights. In a survey it has been observed that the human IQ is lowering over the years as the AI is taking up complex function of a human being. The voice command used to activate the AI may also be privacy concern because it records the data and uses it for machine learning and there is absolutely no guarantee that they would use it for the same purpose they, it can be be used to duplicate the voice. These days the use of Google maps is so high that it would shrink the human brain and not letting it to regenerate the route a person commute.

 

Conclusion

We are not degrading the creations and inventions of AI, it’s just that the present law has many pitfalls, drawbacks and we can even say there is no such law that has been laid down to provide IP to AI. At-least in India it contains a barrier that in it does not contain the word Artificial Intelligence in its act and specifically been stressed in the act that the patentee must be a human, we should note that India is a developing country and it takes some time for the development in this technological subject matters, but if we look on to the debate on this matter in developed counties they too restrain themself from providing IP to AI, this is not just the matter of providing IP  for the work produced by Artificial Intelligence, it’s about going back in time interpreting the law as to why the law was bought to force and determining its sole purpose.  

But if the organization like WIPO comes up with the regulations under this matter, then there will not be anything stopping AI from getting intellectual property rights.

 

 

[ii] https://www.comcourts.gov.au/file/Federal/P/VID496/2021/actions

Khurana and Khurana, Advocates and IP Attorneys



About the Firm

Khurana and Khurana, Advocates and IP Attorneys

AddressD-45, UPSIDC, Site IV, Kasna Road, Greater Noida - 201308, National Capital Region, India
Tel91-120-313 2513, 91-120-350 5740
Fax91-120-4516201
Contact PersonTarun Khurana
Emailinfo@khuranaandkhurana.com
Linkwww.khuranaandkhurana.com


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