AI AND IP: WHO OWNS THE TERMINATOR WORKS?

AI AND IP: WHO OWNS THE TERMINATOR WORKS?
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About the Author:
Sagnick Chowdhury is a law student in Amity University, Kolkata


AI is a digital frontier that will have profound effects on the world. Its immense potential has prompted many companies to explore its use in various industries. Although it is still early days, it is clear that AI-generated inventions will affect the way we work and produce goods and services. Exclusive AI generated music and artistic works and inventions are not so far, and it is expected that it will define the concepts of the ‘composer’, ‘author’, and ‘inventor’. But how that will happen is not clear yet.

The Terminator

Major AI textbooks define artificial intelligence as “the study and design of intelligent agents,” where an intelligent agent is a system that perceives its environment and takes actions which maximize its chances of success. John McCarthy, who coined the term in 1956, defines it as “the science and engineering of making intelligent machines.” AI research is carried out using various tools and insights from various fields. It can also overlap with other tasks such as robotics, data mining, and speech recognition.

In the movie SkyNet is a highly-advanced computer system possessing artificial intelligence. Skynet becomes self-aware due to its artificial intelligence and classifies humanity as a threat to its survival, since the scientists of Cyberdyne tried to shut it down and hence skynet triggered the nuclear holocaust. Later, it would wage the War against humanity by developing and deploying an army of Terminators. Skynet has also used time travel technology to send Infiltrator groups into the past to perform various tasks, including killing Resistance leaders and ensuring their own creation.

However, we are not concerned with the destructive, missile launching, human killing abilities of AI systems (as of now at least). The advancement of AI and its machine learning capabilities have raised a lot of questions in the field of intellectual property rights, the first being “Who owns the rights to the IPs created by an AI?”.

Arnold Schwarzenegger back in 1984 amazed us as the lethal robot that travelled to the past to be humanity’s salvation. It began in the 80s but still today, in the 21st century the question remains whether AI will replace humans. We know that machines can often replicate human functions and we also know that machines are often doing a better job than humans and therefore the debate is whether machines can own the fruits of their work and if not, then who owns their IPs?

Many countries, including the US, do not allow the attribution of legal and intellectual rights to AI. This means that the owner of these rights will most likely be the programmer or the publisher.

Copyrightability of AI generated works

In simple words, Copyright is the exclusive right of the creator of an original work to use and distribute it in any form. For a grant of a copyright, the work should be original and in a tangible form. A copyright is generally granted for the creation of literary and artistic works and since one of the areas of AI’s applicability is creation of literary works, the study of copyright in light of AIs, becomes relevant.

Although copyright law does not recognize AI-generated works, it does protect the original creations by a human being. This is reflected in the famous monkey selfie case. David Slater was traveling to a national park in Indonesia in July 2011 when he decided to take some photos of the local wildlife. While there, he came across a group of macaques that were seemingly shy and didn’t allow him close shots. He claimed that he placed his camera on a tripod so that the monkey would get used to it, the monkey then took it upon themselves to take a few pictures, one of them being a selfie of a monkey named Naruto which became viral all over the internet.

The popularity of the photos however, came with a price, when in 2014, wikipedia uploaded the picture and tagged it as public domain. Wikipedia contended that monkey’s cannot own copyright and Mr Slater did not take the photos, hence it belonged in the public domain. The US copyright office gave the decision in this dispute that works have to be created by human beings in order to fall in the protective umbrella of copyright law.

As far as Indian law is concerned, Section 2 of the Copyright Act 1957 states that the author is someone who has created a work of art or literary fiction. For softwares, the author is the person who writes the computer program/code.

The complexity of the AI world increases when it becomes fully autonomous and has the freedom to make its own decisions. As a result, it may become more difficult to determine the authorship of a work when it is not controlled by a human author. One of the critics of AI’s access to copyright protection is Lovelace. She states that machines lack creativity due to their rule bound behavior.

This POV is countered by many experts in the fields, who state that writers themselves are machines who deduce ideas from pre-existing works. For example there are many movies based on the premise of ‘Romeo vs Juliet’. In our case, we can rely on the judgement of Cummins vs Bond , wherein it was questioned whether a work can be registered in the name of Jesus Christ. The court decided that a work should not be denied protection under copyright laws even if it is non-human in nature and that such protection should be given irrespective of the independent judgement exercised in the process.

Even if countries agree to grant copyrights to AIs, the question of who gets them remains mysterious. Due to the current nature of copyright laws, there has to be a legal person in order to accept the grant on behalf of the AI.

Patent Protection

A patent is the exclusive right to an invention. This right is granted to anyone who has come up with a novel way of performing a certain action. “Invention” in this context covers any product or process that is new, has an inventive-step and is capable of industrial application.AI-powered systems are capable of performing various functions and even creating inventions. This is because their processing abilities are similar to the human brain.

The main factor that will determine the validity of an invention is whether it can pass the patentability test. In the case of AI-powered systems and technologies, this is the three steps test, the first one being the test for novelty. It is typically necessary for an inventor to thoroughly check the existing prior art to determine if his invention can be easily anticipated or not. While an AI system can gain access to prior art which can be fed by the equipped person, the question arises whether it is truly independent, let alone capable to make a judgment on whether or not its invention can account for something novel. As far as the criteria of inventive step is concerned If the AI system is not able to determine the novelty of an idea, the chance of making innovations which are non-obvious to persons skilled in the art is very difficult.

AI has the potential to invalidate the core legal principles that are the basis of Patent law. The fundamental question that needs to be answered is whether AI-generated inventions should be granted protection under patent law. Some scholars believe that granting patent rights for AI-generated inventions could act as a catalyst to create new and advanced innovations that are difficult to come by through traditional means. Others, on the other hand, argue that granting such protection will increase the cost of doing research and development and impede innovation.

Another problem is to establish the yardstick for ascertaining if an AI invention is non-obvious. This procedure is full of uncertainty and complexity. As AI is becoming prevalent in almost every sector and industry, the definition of an ordinary person skilled in art in regards to AI should also be redefined to include those who are equipped with it. There is also a huge cloud of doubt as to the infringement of patents by an AI. The debate here is who should be held liable incase of infringement of patents by an AI. Should it be the creator of the AI or the person equipped with it or should it be the AI itself.

AI technology is bound to improve at an increasing pace. With the emergence of new technologies and multibillion dollar companies cashing in on it, it is inevitable that we will see more inventions related to software solutions and other fields by AI systems. One simple solution regarding patent protection is to grant a more collaborative form of patent protection for the inventions made by an AI since the human element is essential in managing the rights and obligations associated with patents which cannot be executed by machines.

Conclusion

The current position of IP laws pertaining to AI is very baffling given that the technology is moving forward at a fast pace. There has to be a uniform recognition of AIs by all the countries that are members to the TRIPs agreement only after that, necessary amendments to include AI technology can be made. There should also be National legislation made in every country which exclusively deals with supervision and sanction of criminal activities by AIs and provide remedies for the same. Criminal liability regarding AI’s and their creators should also be looked into by legislators.

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