Introduction

What is artificial intelligence?

Artificial Intelligence also abbreviated as AI in the simplest sense, can be explained as a machine particularly a computer system that exhibits some form of intelligence. It is a field of research in computer science that develops and studies methods and software that enable machines to perceive their environment and use learning and intelligence to take actions that maximise their chances of achieving defined goals.[1] AI might seem like a new development taking place in the science and technology world; however, this is not so. AI has surrounded us for ages. A few great examples could be the chess or solitaire games we play on our computer, which is a classic example of AI. In addition to this, we have Google, Search engine optimization (also popularly known as SEO), and also our very own assistants Siri and Alexa! Also, the newly developed cutting-edge technologies that have recently gained prevalence are the Chat GPT, AI Art etc.,

Alan Turing was the first person to conduct substantial research in the field that he called machine intelligence.[2] As stated earlier, the concept of AI is not new to us, in fact, Artificial intelligence was founded as an academic discipline in the year 1956.[3] he field went through multiple cycles of optimism,[4] followed by periods of disappointment and loss of funding, known as AI winter.[5] Funding and interest vastly increased after 2012 when deep learning surpassed all previous AI techniques,[6] and after 2017 with the transformer architecture.[7] This led to the AI boom of the early 2020s, with companies, universities, and laboratories overwhelmingly based in the United States pioneering significant advances in artificial intelligence.[8]

“Generative AI has become an important tool in helping small businesses file patents; in particular, the ability to draft highly targeted claims based on the domain in which the firm operates, but also in anticipation of future opportunities not yet discovered by the mainstream business community. In addition, while today’s inventors have tremendous leverage using generative AI, it is important to keep in mind the latest regulations in the U.S., which basically state that all patent applications should protect the integrity of the information they contain, and that generative AI may be used as a tool to produce patent applications, but the resulting information must be reviewed to ensure factual accuracy. And for the potential acquirer of small and medium enterprises, generative AI can assist in identifying those SMEs whose patent portfolios are relevant (or not) to the firm.”[9]

What are Intellectual Property Rights?

Intellectual Property Rights (also abbreviated as IPR or simply IP). To first understand what Intellectual Property rights are, we need to first understand what intellectual property is to begin with. Intellectual property or IP is nothing but our very own unique, creative creations; this can include various forms of art that could be music, paintings, films, or a product or name. There are various types of intellectual property, they are:

1. Patents
2. Copyrights
3. Trademark
4. Trade Secrets
5. Geographical Indications,

To name a few. Therefore, it is a tangible creation of the human mind. The term “intellectual property” began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in most of the world’s legal systems.[10] Intellectual Property Rights are exclusive rights given to people over their creation. For example: The rights of authors of literary and artistic works (such as books and other writings, musical compositions, paintings, sculpture, computer programs and films) are protected by copyright, for a minimum period of 50 years after the death of the author.[11]

Illustration: “A” writes a book about his personal experience as a veteran and his book eventually becomes popular among the readers in the coming days the film industry too is keen to turn A’s book into a movie. So, whether A’s book will be turned into a movie or not is A’s decision and right to choose. Anyone taking inspiration from A’s book and creating a replica book or a movie will be infringing on A’s rights.

We have so far understood what Artificial Intelligence and Intellectual Property are as well as Intellectual Property Rights. The main aim of the article is to discuss how IPRs are lapsing with the ever-growing AI. What are the laws to protect the IPR of authors and creators in general?  Can more be done in terms of protecting IPR? Can we balance rights, laws and technology? So as to encourage creativity and innovation of intellectual goods as well as encourage wide usage of such goods. We need to also ensure due credits are given and avoid any form of exploitation to take place.

“An American scientist and inventor, Dr. Stephen Thaler, created an AI system called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience). DABUS is a type of ‘connectionist AI’. It uses multiple neural networks to generate new ideas, the novelty of which is then assessed by a second system of neural networks. Through this process, DABUS has autonomously generated two “inventions.” The first was a fractal container (a food container) and the second was a neural flame (a search and rescue beacon). Dr. Thaler’s patent applications have been unsuccessful in New Zealand, Taiwan, Israel, the Republic of Korea, Canada, Brazil, and India. To date, South Africa and Saudi Arabia are the only exceptions, although, in both of those jurisdictions, the patents have not yet undergone substantive examination.”[12]

Providing below a table of databases that the United State follow on Artificial Intelligence and Intellectual Property Strategy Clearing House that the WIPO also has notified on its website.[13]

1. United States of America (Case laws for AI and IP):

1. 1. United States Patent and Trademark Office Decision of April 27, 2020 on Application No. 16/524,350
      In the decision the United States Patent and Trademark Office (USPTO) ruled that AI systems cannot be listed or credited as inventors on a US patent. The decision stated that an “inventor” under current patent law can only be a “natural person.” This ruling follows similar stances adopted by other IP offices worldwide.
   2. Virginia Eastern District Court Decision Thaler v. Hirshfeld
      US District Court affirmed USPTO’s denial of AI system as inventor.
   3. United States Court of Appeals for the Federal Circuit [2022]: Thaler v Vidal, 43 F.4th 1207
      In August 2021, the Federal Circuit Court issued a precedential opinion, stating that under the Patent Act an AI software system cannot be listed as an “inventor” on a patent application.

2. Data Rights

   1. Data may be subject to intellectual property rights in the US, including copyright and trade secret laws, depending in part on the definition of “data.” For example, “raw” data that is pure facts would not be protected by copyright, but compilations of such facts may be protected. Other types of rights, including contractual, privacy, or confidentiality provisions may govern data.

3. Database Rights

   1. While the United States does not have a sui generis “database” protection, it does protect intellectual property subsisting in databases via copyright (including compilations), trade secrets, and other intellectual property rights. In addition, databases may be protected through tort law (e.g., misappropriation) or contract law. For relevant IP laws, see, e.g., 17 U.S.C. § 101 et. seq. (copyright); 18 U.S.C. § 1831 et. seq. (trade secret).

4. Guidelines and Procedure for AI

   1. Update of USPTO Patent Eligibility Guidelines 2019The Guidelines were updated in January 2019 to include example 39, which addresses neural networks, a type of AI.

   2. US Copyright Office’s Compendium of Practices 2021The US Copyright Office’s Compendium of Practices notes that the Office will only register original works of authorship created by a human being. See Sections 306, 313.12.

CONCLUSION

In the present day, Artificial Intelligence is not only an opportunity for creators, businessmen and the world at large but it also poses various challenges as well. Artificial intelligence does not only have the ability to create but also to exploit. This, in turn, raises questions in regard to ownership and data protection. This also attracts complex legal and ethical issues. However, as stated earlier Artificial intelligence is a very important and crucial tool, it also assists law and policymakers to stay abreast of any new advances that take place in the science and technology areas and accordingly also safeguards and evolves IP laws to meet the demands needs of the expeditiously changing society. AI and the world at large are ever evolving, and it is important to highlight the issues and navigate through them in order to ensure that intellectual property rights are protected. AI gets a shield of umbrella from the Doctrine of Fair Use or Fair Dealing which permits a person to use any work protected by copyright law under the Act in such a limited way that maintains the originality and proprietary of the work.[14]

To know more about USA Codes on Infringement of Intellectual Property law, read our blog on USA CODES ON INFRINGEMENT OF INTELLECTUAL PROPERTY LAWS – Layman Litigation and what IPR lawyer do Role of an Intellectual Property Rights Lawyer – Layman Litigation

[1] Russell, Stuart J.; Norvig, Peter. (2021). Artificial Intelligence: A Modern Approach (4th ed.). Hoboken: Pearson. ISBN 978-0134610993. LCCN 20190474.

[2] Copeland, J., ed. (2004). The Essential Turing: the ideas that gave birth to the computer age. Oxford, England: Clarendon Press. ISBN 0-19-825079-7.

[3] Dartmouth workshop:

• Russell & Norvig (2021, p. 18)

• McCorduck (2004, pp. 111–136)

• NRC (1999, pp. 200–201)

The proposal:

• McCarthy et al. (1955)

[4] Successful programs the 1960s:

• McCorduck (2004, pp. 243–252)

• Crevier (1993, pp. 52–107)

• Moravec (1988, p. 9)

• Russell & Norvig (2021, pp. 19–21)

[5] First AI Winter, Lighthill report, Mansfield Amendment

• Crevier (1993, pp. 115–117)

• Russell & Norvig (2021, pp. 21–22)

• NRC (1999, pp. 212–213)

• Howe (1994)

• Newquist (1994, pp. 189–201)

[6] Deep learning revolution, AlexNet:

• Goldman (2022)

• Russell & Norvig (2021, p. 26)

• McKinsey (2018)

[7] Toews, Rob (3 September 2023). "Transformers Revolutionized AI. What Will Replace Them?". Forbes. 

[8] Frank, Michael (22 September 2023). "US Leadership in Artificial Intelligence Can Shape the 21st Century Global Order". The Diplomat. 

[9] Scott A. Snyder, Mark Pecen, Intellectual Property in the Age of AI, March 4, 2024, Retrieved from: How to Protect Intellectual Property in the Age of AI - Knowledge at Wharton (upenn.edu)

[10] "property as a common descriptor of the field probably traces to the foundation of the World Intellectual Property Organization (WIPO) by the United Nations." in Mark A. Lemley, Property, Intellectual Property, and Free Riding Archived 26 February 2009 at the Wayback Machine, Texas Law Review, 2005, Vol. 83:1031, page 1033, footnote 4.

[11] WTO | intellectual property (TRIPS) - what are intellectual property rights?

[12] Nagesh Karale, Intersection of artificial intelligence and intellectual property rights: challenges and opportunities, retrieved from: Intersection of artificial intelligence and intellectual property rights : challenges and opportunities - iPleaders

[13] Artificial Intelligence and Intellectual Property Strategy Clearing House (wipo.int)

[14] Impact of AI on Intellectual Property Practices - Legal Articles - Free Law