Artificial intelligence (AI) refers to the ability of a computer or machine to mimic the competencies of the human mind, which often learns from previous experiences to understand and respond to language, decisions, and problems. Artificial intelligence (AI) is defined in several ways. Some see it as the created technology that allows computers and machines to function intelligently. Some others see it as the machine that replaces human labour to work for a more effective and speedier result. Still others see it as “a system” with the ability to correctly interpret external data, to learn from such data, and to use those learnings to achieve specific goals and tasks through flexible adaptation1 .
Artificial intelligence (AI), also known as the industrial revolution (IR), is going to change not only the way we do things, how we relate to others, but also what we know about ourselves. AI has now become part of our daily lives and is constantly evolving. We already live in an era of self-driving cars, autonomous weapons, drug synthesis, disease identifications, medical symptom analysis, and investment advisory tools. Language translation, face recognition, answering machines, automated submission of legal appeals and opinions (i.e., automated lawyers), and automated therapists, among other services, have all become part of our everyday routines. All of these depend on AI systems to various extent. Artificial intelligence has definitely caused our workforce to evolve. Several companies have already attempted to implement AI in several areas. General Electric, for example, is already using an AI system in the design of jet engines.
‘AI-generated' invention, is an upcoming issue which has/can triggered an intense debate on the future of patent law and policy. While there is a general consensus that such inventions are incompatible with the concept of human inventorship, it remains largely unclear to what extent concerns regarding ‘non-human' ingenuity can be justified. Most uncertain is how AI ‘autonomously generates' inventions, and in what way ‘AI-generated' inventions differ from inventions developed with the aid of AI.
WHO OWNS AN AI-GENERATED INVENTION?
The inventor is the first owner and the developer/ inventor of any patent which is applied for and granted over that invention. As the law currently stands, AI cannot be the inventor (and therefore the owner of a patent) because “innovating or devising” an invention is a human activity which involves contribution to the inventive concept. The invention and any patent granted over it, belongs either to the human deviser or to the employer (if an employee devices invention).
Another issue that may well arise in the future is one of joint ownership. If there is a scale with human generated works at one end and computer generated works at the other, there will be an area between them where it could be said that the human and the AI jointly contributed to the work. Joint ownership is difficult enough question to answer by human authors and can be a very difficult issue since one co-owner can prevent another co-owner from exploiting the work without their permission.
When AI is being used as a tool, admittedly a very sophisticated tool, to help develop new inventions; where it is an integral part of the inventive process, it is arguably no different to using any other tool, such as a microscope. The inventor will therefore be the person using the AI. Mere ownership of the AI system would not qualify someone to be an inventor. Also, a human who simply provides training data to an AI system and presses “go” is unlikely to be considered the owner of the resulting work. Example: “The Next Rembrandt” a unique 3D-printed painting created by an AI system which mimicked Rembrandt's style, including his brushstroke technique2 . Those who worked on this fascinating project have pointed out that the AI produced the painting solely from being trained on a dataset of Rembrandt's paintings.
At some point where AI is devising the invention with no human intervention, then, under the current law, no one is liable to claim to be the inventor and it will not be possible to protect the invention by applying for a patent, although this has not stopped a few people from trying. For example, the University of Surrey has announced that its machine, DABUS, is named as the inventor of a new food container and patent applications in its name have been made in the UK, the USA and at the European Patent Office3 . Possibly in response, the UK Intellectual Property Office (IPO) has, in its most recent update to its Formalities Manual, added a statement that “An AI Inventor is not acceptable as this does not identify ‘a person' which is required by law. The consequence for failing to supply this information is that the application is taken to be withdrawn.”
WHAT OF THE FUTURE?
If in case, the system was to be changed and the new policies were to be imposed wherein AI is considered to be an inventor, then rules would have to be laid down as to who should own the resulting patent. Questions would then need to be asked as to who or what society wants to reward? Should it be the owners of an AI system? Or, should investment alone ensure a stake in the resulting work? Changing patents into pure economic rights would be a highly significant change to the system and will greatly affect the industries which rely upon such assets.
In relation to works protected by copyright, AI is getting so good at creating art and music that it is increasingly difficult to tell what has been generated by AI and what has been generated by a person. The big question is if an AI-generated work is free to use because no copyright protects it, what will happen to works generated by human authors? Will humans be able to compete in the marketplace with AI-generated material?
CONCLUSION
Traditional patent laws are no longer adequate or efficient. However, many open questions remain unanswered. For example, which norm should we apply when there is only one or a few stakeholders involved in inventing and operating the system? Who is responsible for infringement of people's or entities' rights by an AI system? Who is entitled to the income stemming from patents developed by AI systems? If ownership is subject to contractual consent, firms need to rethink what the impact of these new businesses should be. When entities relying on AI systems seek to insure themselves against claims regarding infringements, what kind of insurance should they use? Once data is being used to teach the AI how to determine right and wrong, are license agreements necessary? If so, how should they be modified?
These questions are challenging the settled notion of IP ownership and are currently the subject of much debate. If AI is going to change our view of what it means to create and own a work of art, that is a philosophical rather than a legal question. It is one of the upcoming issues that IP professionals and governments will have to tackle.
Footnotes
1. Kaplan A, Haenlein M. Siri, Siri, in my hand: Who's the fairest in the land? On the interpretations, illustrations, and implications of artificial intelligence. Business Horizons. 2019;62:15–25.
2. Who holds the Copyright in AI Created Art. Available at https://abj.artrepreneur.com/the-next-rembrandt-who-holds-the-copyright-incomputer-generated-art/
3. In a world first, South Africa grants patent to an artificial intelligence system. Available at https://www.thehindu.com/sci-tech/technology/inaworld-first-south-africa-grants-patent-to-an-artificial-intelligencesystem/article35817497.ece
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