Authored by Amanda Ruth, law student from Government Law College Ernkula
Artificial Intelligence (AI) is considered to be a discipline of computer science. All of us use AI-based technology in our everyday lives. The human-like voice of Alexa and Siri, the facial recognition of our smartphones etc. are some examples.
Meaning of AI
According to the Merriam Webster dictionary, ‘AI’ refers to a machine’s ability to imitate intelligent human behaviour and perform tasks that typically required human intelligence.
In simple terms, Artificial intelligence (AI), sometimes called machine intelligence, is intelligence demonstrated by machines, unlike the natural intelligence displayed by humans and animals.
AI and Patents
As per WIPO’s ‘Technology Trends 2019’, India is at the eighth place for AI based patent filings since 2015. Indian companies such as Tata and HCL Technologies and International companies such as Microsoft and Accenture are among the top patent filers in India.
The role that AI now plays in the field of inventions cannot be overlooked. Even though people file for patent applications claiming to be the true inventors of a thing, one cannot simply turn a blind eye to the fact that AI must have played a substantial role in coming up with the invention. This is true especially in the case of technological inventions. A reason behind this is also because most jurisdictions require the inventor to be a ‘natural person’.
The inventor of a patent need not necessarily be its owner. The ownership of the patent may be assigned or licensed to another. In fact, most patents are owned by businesses. In the case of an invention by an employee, made in the course of his employment, many jurisdictions provide that the owner of the invention will be the employer. But still, it is required that the true inventor named in the application must be a natural person. This is to ensure that the inventor gets due credit.
To the question as to whether an invention made by AI can be patented, we may have an answer. In August 2019, two international patent filings were made under the Patent Cooperation Treaty for ‘AI-generated inventions’. The phrase refers to inventions generated autonomously by an artificial intelligence (AI) under circumstances in which no natural person, as traditionally defined, qualifies as an inventor. In this application, the AI is named as the inventor whereas the owner of the AI is the one who has filed the applications. The applications are now pending approval in several patent offices.
Now you may think why it is necessary to grant patent to AI-Generated inventions, when the main aim of granting patents to people is to motivate them and to incentivize their innovations. AI will not, obviously be ‘motivated’ by the incentive, but it will encourage the people behind AI to own, use and develop AI, which will undoubtedly pave way for better innovations. Also, it is not fair to list a human as inventor when the real invention was made by AI. This argument is not based on a thinking that such attribution would ‘hurt the feelings’ of AI, which is non-existent, but because it would devalue human inventorship, by giving credit to a person who has not done the real work.
AI and Copyright
Authorship: A work capable of copyright protection, that involves AI, may be of two kinds:
- A work created by AI with human interference
- A work created by AI without any human interference.
In a work created by AI with human interference, since there is an element of human input, the authorship of the work can be attributed to the human.
But in a work created by AI without any human interference, the law is unclear as to whom the authorship may be attributed. But an approach that could be taken in such cases is to vest the authorship on the author of the AI who has developed the program creating the AI. This is because an assumption can be made that the AI was programmed in such a way that it can create and identify equations to generate a result on its own, and therefore, the creativity may vest with the programmer who has created the AI.
Ownership: The ownership in both of these cases may be in the same way the authorship is vested. So in a work created by AI with human interference, the ownership will be with the human, and in a work created by AI without any human interference, the ownership will be with the person who developed the AI.
The Indian copyright law at present does not consider AI to be a separate entity and hence no such right is given to AI. Moreover, recognition of AI as separate entity and protecting its work separately may lead to copyright violations of other copyright holders. This is because AI is not capable of creating an original content; the work created is an adaptation or modified version of existing information in the public domain.
The brilliance of AI cannot be ignored nor can its importance overlooked. Bill Gates has stated that “AI is like nuclear energy – both promising and dangerous”. As per the European Union draft report of the European Parliament to the Commission on Civil Law Rules on Robotics humanity may be at risk of “AI [surpassing] human intellectual capacity”. To avoid this danger, the draft report stresses the importance of humanity maintaining the capacity to control its own creations. It is not possible to predict the future and the turns that AI will take. But the countries need to make necessary changes to their laws and regulations to promote as well as limit AI.
 https://en.wikipedia.org/wiki/Artificial_intelligence accessed 15 September 2020
 The Artificial Inventor Project https://www.wipo.int/wipo_magazine/en/2019/06/article_0002.html accessed 15 September 2020
 European Civil Law Rules in Robotics, https://www.europarl.europa.eu/RegData/etudes/STUD/2016/571379/IPOL_STU(2016)571379_EN.pdf accessed 15 September 2020