India Lacks IP Laws over Artificial Intelligence

23rd August, 2024 - 7:25 am Categories: AI 0 Comments

What Is Artificial Intelligence (Ai)

Artificial intelligence or AI is the new branch of computer science which through the method of machine learning, data, algorithms Imitate or replicate human intelligence. The part which makes AI different from your regular programmed software is that it has the capability of creativity. For practical purposes there are two types of AI’s[1] –

1. Narrow AI – This type of Artificial intelligence is a rather weak in its abilities and functions that it can perform this type of AI is usually Used in the software of – Google translate, Face recognition self-driving cars
2. General AI – This type of artificial intelligence Has abilities an intellect which can be said to match the intellectual capacity of an average human (The developers are still working on this and it is not available for public use)

Although there is a third type of artificial intelligence which is called as Super AI which can supersede human intellect but fortunately this type of AI is still a hypothetical concept and not a reality

In all the excitement and wonders of of creativity that artificial intelligence brings it also poses a daunting question. In a world where a non-person like AI can create and manipulate intellectual properties like music, digital paintings, articles, blogs, stories, etc. What should be the legal framework of works created by artificial intelligence

ISSUES RELATING TO IP LAWS AND ARTIFICIAL INTELLIGENCE

In today’s world artificial intelligence And Intellectual property rights are two uniquely interrelated concepts, Due to the abilities of artificial intelligence to imitate human creativity and make newer intellectual property AI poses a challenge to IPR laws which includes on deciding who has the ownership of the AI created work, Any potential infringement risks

For example, Let’s assume that an AI system creates an original music or let’s say it may create an art then the question arises as to who owns those rights to this newly created piece of intellectual property as these works are eligible for protection under IPR laws

Or let’s assume that That an AI system which is trained on a database of images creates a new image that is similar to the image in the data set but is not the exact copy of the original so how do we go about deciding the ownership of this new image Or the level of originality or the level of contribution of the data set, the person giving the instruction, and the AI system network as this image is eligible for protection under intellectual property rights laws in India

The law should also have an explanation and a decisive verdict on the ongoing debate about whether an AI can be recognised as an inventor or an author or it is just a tool used by the human inventor or author does the authorship is shared or is it entirely with the human or the AI.

Can an AI infringe on copyright or violate copyright policies? And in the case of an infringement who shall be held liable?

The current model of AI which is available to us is designed to work in a way where it actually uses information available in the public domain or the information or data. Hence it is paradoxical to assume that AI should be held liable for any kind of copyright infringement as the basis of creation of the said work is solely based on the data provided by the human operating the AI system[2].

Can AI be granted the authorship of works it generates?

In a case where AI is granted right of authorship of the work/art it creates/generates Then AI will also possess the right to sue or to be sued and since it is a computerised software how will the prosecution go about prosecuting the artificial intelligence if it is found guilty of copyright infringement.

And as per the section 22 of the Copyright Act 1957[3] “Term of copyright in published literary, dramatic, musical and artistic works. Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.”  In simpler terms this means after the death of the author for a period of 60 years no one can use the copyrighted work of the author. But in this case AI is a software and it simply never dies so how will the government go about framing laws in such a scenario.

CURRENT LEGAL FRAMEWORK IN INDIA REGARDING AI

Does India recognise AI as author or co-author of any intellectual property?

The answers provided by Indian IPR laws to the questions and issues mentioned above I’d rather Debatable as of this moment as The Copyright Act of 1957[4] Or any other act defines or mentions AI as the author or as the owner of an intellectual property

But the copyright office[5] has received an application in the year of 2020 Where it recognised AI as a co-author of the art “suryast”[6] But the basis on which the application was accepted is really questionable as the office Failed to give an explanation as to why they had recognised artificial intelligence as the coauthor Due to which after a year had filed, they had to file a withdrawal notice[7] And the decision still remains pending. Hence in relation to this case the Indian laws still do not provide any clarity on the topic of AI as in co-author

The closest Indian laws come to explain the authorship of works created by artificial intelligence Is in the Indian Copyright act where it is stated in section 2(D)(6) Where it grants protection to the copyright but on the other end it is also clarifying  that the person who has caused the work to come into like existence using the computer that  person will be the author so this can again be Integrated that the act is just talking about just the use of the  computer or are they actually talking about the use of artificial intelligence Still remains ambiguous.

But when it comes to other countries like Australia and China where the government has recognised AI as a patent or an inventor of the works and at the same time when it comes to countries like Spain which have established that only humans can be an author of Intellectual work

And this may in turn compromise the doctrine of fair use as stated in section 52 of the Copyright Act 1957 Which allows the use of works available in the public domain and since AI is practically immortal any works created or prepared by an artificial intelligence will never come in public domain.

Which in itself is paradoxical as AI itself uses the data available in public domain.

POSSIBLE SOLUTIONS AND STEPS TAKEN BY THE INDIAN GOVERNMENT

The legislator may start by tweaking the Various definitions to incorporate AI Into the laws relating to intellectual properties Such as

• The definition of an author in the copyright’s act of 1957
• the definition of a person can be changed or adjusted to accommodate the concept of artificial intelligence
• The definition of a proprietor under the trademark act 1999
• The definition of patentee under the patent act 1970
• And most importantly the term artificial intelligence needs to be defined legally

Although India is lacking in adjusting its existing laws with The AI Revolution in regards to intellectual property but, it is working towards AI policies for the country for example the Ministry of electronics and information technology has created a committee on AI which has submitted Reports relating to AI’s Development and safety The report also speak about the ethical issues relating to AI[8]

The government of India has also established a committee on AI under the Bureau of Indian standards which will draft Indian standards[9] for AI.

Till now the government of India has primarily focused on introducing pro Innovation policies in regards to AI.

APPROACH OF OTHER COUNTRIES REGARDING CODIFYING IPR LAWS RELATING TO AI

Although laws of regulation in relation to AI is something new and every country is equally puzzled on regards to how it should go about creating IPR laws relating to AI India can draw inspiration from the EU AI Act which is the world’s first comprehensive AI regulations act.[10]

The Act Aims to balance the innovations of a while safeguarding the fundamental rights of the creators of intellectual properties.

they act also deals with the generation of image music poetry by generative AI systems like chat GPT and Dall-E The act make sure that generative AI systems comply with the copywriting laws and are commanded by the law to bring transparency in their methodology processes and practice.

The Act establishes that companies are required to provide correct information to the regulatory bodies and breaching the provisions of the acts may result in fines ranging from €7.5 million to €35 million.

The European Union has chosen to not recognise AI as an inventor or an author or a creator of intellectual property Delaware establishes and recognises the human to have the authorship of the intellectual property created. Similarly, in UK in the landmark case of Thaler v. Comptroller-General of Patents[11] in which AI system known as Dabus, he was denied recognition as the Inventor even after the claim of It inventing without human intervention The Supreme Court of UK decided that an AI system cannot be deemed as an owner or inventor.

But different countries reacted Differently to Dr Thaler’s Efforts to legitimise an AI to own a patent Similar to UK The United States of America and New Zealand also decided to not An AI system as the owner of a patent.[12]

But the only country that accepted Dr Thala’s patent cooperation treaty is South Africa hence south Africa became the first country that recognises and legitimises an artificial intelligence system as an inventor which is capable of owning a patent.

CONCLUSION

In conclusion it is still a long way to go for India and for the world to recognise and navigate the new challenges posed by the AI Revolution.

India needs to create a proper framework and path of incorporating AI into its existing laws. And create new laws in regards to its approach to regulate AI relating to the issues of IPR, privacy, ethics etc.

The absence of proper provision in respect to AI has left the development of India hampered. India has to recognise and protect the rights of creators and patent owners from being violated by the AI revolution.

Author: Sanjana Priya, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] different types of artificial intelligence – https://www.ibm.com/think/topics/artificial-intelligence-types IBM, Types of Artificial Intelligence, IBM THINK, https://www.ibm.com/think/topics/artificial-intelligence-types (last visited Aug. 10, 2024).

[2] Ibid

[3] The Copyright Act, 1957, § 22, No. 14, Acts of Parliament, 1957 (India).

[4] The Copyright Act, 1957, § 2(d), No. 14, Acts of Parliament, 1957 (India).

[5] INDIAN COPYRIGHT OFFICE, https://copyright.gov.in/ (last visited Aug. 10, 2024)

[6] Mondaq, IP Protection of AI-Generated Works – A Dire Necessity, MONDAQ,https://www.mondaq.com/india/patent/1399274/ip-protection-of-AI-generated-works–a-dire-necessity#:~:text=AI%20is%20not%20included%20in,(z)%20of%20the%20act (last visited Aug. 10, 2024).

[7] Managing IP, Exclusive: Indian Copyright Office Issues Withdrawal Notice to AI Co-Author, MANAGING IP, https://www.managingip.com/article/2a5d0jj2zjo7fajsjwwlc/exclusive-indian-copyright-office-issues-withdrawal-notice-to-AI-co-author (last visited Aug. 10, 2024).

[8] Ministry of Electronics and Information Technology, Artificial Intelligence Committees Reports, MEITY, https://www.meity.gov.in/artificial-intelligence-committees-reports (last visited Aug. 10, 2024).

[9] Bureau of Indian Standards, Published Standards, BIS, https://www.services.bis.gov.in/php/BIS_2.0/dgdashboard/Published_Standards_new/standards?commttid=Mzg2&commttname=TElURCAzMA%3D%3D&aspect=&doe=&from=2022-07-21&to=2023-07-21 (last visited Aug. 10, 2024).

[10] European Parliament, EU AI Act: First Regulation on Artificial Intelligence, EUROPEAN PARLIAMENT, https://www.europarl.europa.eu/topics/en/article/20230601STO93804/eu-AI-act-first-regulation-on-artificial-intelligence#transparency-requirements-1 (last visited Aug. 10, 2024).

[11] Lexology, https://www.lexology.com/library/detail.aspx?g=d0dd6884-a402-4c2a-8be7-cc4480a7e9d5 (last visited Aug. 10, 2024).

[12] wikipedia, https://en.wikipedia.org/wiki/DABUS (last visited Aug. 10, 2024).