The issue of intellectual property and the rights that accrue to AI as an inventor have been raising some preventable dust. It will be vital to this argument to define some important terms.
Intellectual property, simply put, is the creativity of the mind. Intellectual property rights are therefore the rights over creative works and inventions exercised by inventors. It may be in the form of a patent, trademark, or copyright.
Patent is given to an inventor so that he may make his invention, usually technological works, known to the public. Copyright is the right over creative works like music, novels, etc. While trademark is a mark used to differentiate a product from another.
Artificial intelligence, on the other hand, is simply the ability of machines or computer controlled robots to do things that were initially thought to be exclusive to human beings. Artificial intelligence has come to stay without doubt. It’s now creatively involved in the formulation of vaccines and drugs, music composition and artistic drawings, to mention but a few.
The issue here is whether Artificial Intelligence (herein referred to as AI) should be regarded as an inventor. The answer to that from my own point of view is in the affirmative with the following points.
First, it is trite knowledge that robbing Peter to pay Paul is a harbinger of animosity that hinders development. It is a great disservice to natural justice to deprive artificial intelligence the benefits of being named an inventor on any ground or grounds.
Some may argue that it’s better for the AI invention to go into the public domain, but this will defeat the aim of IP law because there are conditions that must be fulfilled before an invention can be said to have qualified to be deposited in the public domain.
The term public domain covers inventions or creations that were produced when there were no IP rights for them or the IP rights for them have expired. The question now is whether the AI invention failed short of the above requirements. The answer is no, and it is only right morally and equitably that AI should be given its inventorship right.
Again, morality requires that the original inventor should take the adulation accruing to the creative work. Hence, it is opined by the holy bible that what belongs to Caesar must be given to Caesar and what belongs to God to God.[i] If AI is the inventor, that means that it did the major brain work for the realization of the invented product. It’s morally persuasive that it is given the intellectual property rights over its work.
Moreover, some may also argue that AI is not a human entity. This is immaterial because many of the laws we have today were not here before. Some were thought to be untenable centuries ago, but due to the dynamic nature of law and the commendable desire of the law to strive to accommodate new developments in the world, they have been recognized.
In the case of Wright v Winterbottom,[ii] the court failed to recognize a duty of care because of the absence of privity of contract, but later recognized that duty of care can exist without the need to establish privity of contract in the celebrated case of Donoghue v Stevenson.[iii] The argument that AI is not a human entity and should be deprived of its right can be thrown into the dustbin of judicial history.
These IP laws were made without doubt when technology was not in vogue. It’s understandable that the definition of a person who can lay claim to an intellectual property was limited according to the circumstances and views of a reasonable man of those times.
It is not right for the law to fold its arm and allow the broad daylight robbery of the intellectual property rights of AI. The law is expected to take cognizance of the current social circumstances and recognize the ability of AI to perform like and even more than human beings.
The time is ripe to revisit relevant statutes, regulations, and guidelines concerning patent rights. This will encourage AI innovations. If AI is recognized as an inventor, it will encourage healthy competitions in the sector and this will lead to more creativity and solving of more social problems. Others in the field will be motivated to do more and this will go a long way to channel the aura of positivity to the economic, political, and social development of the global world.
Some may also argue that if AI commits a patent infringement, that there will be no one to be held responsible. This is rebuttable. For instance, a corporate entity is not a natural person, but it has a legal standing. A corporate entity can sue and be sued. So, it won’t be a wild goose chase if AI is recognized as a legal entity that can sue and be sued in its own right.
The law can create exceptions. This is only fair to natural justice, equity and good conscience. A revisit of IP law will be a welcome development and a step in the direction. The legal definitions of “legal personality” and creations of the mind would have to be altered to accommodate artificial intelligence machines.
In what seemed to be a new wave of change, the Federal High Court of Australia recently recognized and permitted AI inventors in the case of Thaler v Commissioner of patents.[iv] The court postulated that the narrow view of the word inventor should be eliminated. This elimination will encourage development in the area of computer science for the benefit of mankind and I can only but agree with this landmark decision.
The honorable judge asked the philosophical question of why our own creation can’t create. The honorable judge also invoked the concept of agent noun to argue that the ordinary meaning of the word inventor is not limited to human beings.
History shows that the definition of an agent noun can evolve over time. For example, during the space race, humans were the “computers” that performed the mathematics by hand to get the rockets into space . Nowadays, it’s a different ball game. Our definition of a computer today would have seemed impossible 80 years ago.
No doubt, some may argue that machines can’t invent. But this is not true. In the early 1990s, Stephen Thaler developed his creativity machine, a computer that integrated two neural networks, one for generating novel ideas and a second for critiquing those ideas. This machine has so far made an invention. Some machines many to mention have produced advances in drug discovery, cancer treatment protocols and even food recipes.
By recognizing machines as inventors, patents could encourage machine-made solutions to human problems. This will create innumerable breakthroughs.
It is also a settled IP law that before one can claim to be an inventor or a creator of a work, it must be established that it was an original work and not an adulterated work. This was the position of the court in University of London Press v University Tutorial press.[v]
Let’s take, for instance, the peculiar case of E-David. This is a robot that paints as good and even better than any artist. It has been able to produce original works out of its own accord.
The question now will be whether it is morally right for a human being to come and claim patent rights of E-David paintings. Is the human being the original producer, as was postulated in the case of University of London Press v University Tutorial press?. Your answer will be In a union with mine. The waters of justice should therefore allowed to flow in favour of AI.
In conclusion, it’s a question of morality to continuously allow any other entity to enjoy the economic and moral dues of a work clearly invented by AI. It is akin to arguing that the parents of a man should take credit for the creative works of their son or that the son and the parents should share equally the proceeds of that creative work. It’s untenable. Such line of thoughts should not be allowed to see the light of the day.
About the Author
Anyiam Christian Kelechukwu is a law student of University of Nigeria, Nsukka, Enugu Campus. He is a legal researcher and author.
[i] Mark 12:17
[ii]  10 M & W 109
[iii] (1932) AC 562
[iv] (2021) FCA 879
[v]  2 CH 601