The world has revolutionized to the era when every sector of human endeavor has been disrupted with the use of technology, which operates seemingly to manual labor. The key driver of this revolution is the Artificial Intelligence (AI), which is a programmed technology using computers and smart machines to act in a way that appears humanlike, including of human tasks.
This Artificial Intelligence simply tends to mimic human intelligence in machines and
computers. A good example would be the recent launch of ChatGpt, a natural language
processing tool driven by AI technology to simulate humanlike conversations, answer questions, perform research, compose musicals and even write lines of codes.1
Notwithstanding its recent establishment, it has received popular accord and has gained famous reputation for its wide usage. This paper shall examine in details the meeting point between Artificial Intelligence and Intellectual Property.
Just as the name connotes, Intellectual Property simply implies a property that evolves from
human intelligence and productivity. It is mostly referred to as the product of the mind or human intellect. It can be best described as anything that produced by man, which its creation originates from the mind or intellect. The Intellectual Property is mainly classified into five classes that are widely recognized across the world. They includes:
- Copyrights: this is the exclusive rights granted to the originators and owners of an
artwork, and another person who has a legal authority to that products to the exclusion of unpermitted users. The artworks here mainly involves; literary works, artistic works, audiovisuals, computer programs, databases and software codes.
• Patents: This majorly involves the exclusive rights for inventions and innovations.
• Trademarks: this protects distinctive signs, marks, logos, and symbols used in business.
• Industrial designs: it involves the protection to the aesthetic, ornamental and functional designs aspects of products.
• Trade secrets: it protects the commercially sensitive information and know how.
Due to the critical role Intellectual Property plays in fostering commerce, trade, and innovations, various measures on both national and international levels has been adopted, to guarantee the production of our intellectual products. Some of these measure involves the legislations and established commissions, to ensure the enforcement of the protection of an intellectual property.
The phrase “Artificial Intelligence” was coined by John Mc Carthy, in 1979 in his article title
‘Attributing Mental Qualities to Machines.’2 The phrase can simply be defined as a simulation of ordinary human intelligence by artificial machines particularly computer systems.
It involves the development of algorithms, and software that enables machine to perform tasks typically requiring human intelligence such as problem solving, learning from experience, understanding natural language and recognizing patterns in data.3
Since 1979, the field of AI has morphed multi dimensionally, blossoming into various uses
spamming areas such as genetic programming, automation, facial recognition, Internet of Things (IoT) and quantum computing.4 Recently it is recorded that that AI has grown to the extent of generating other AI’s, thus bringing the classification between “Parent AI” and “child AI’s”.
For instance Google built an AI (named AutoML) which have been referred to as “child AI’s.”5 The Intersection Between Artificial Intelligence and Intellectual Property. Just as the human intellect has the capacity to generate products, the Artificial Intelligence (AI)
also has the synonymous ability to generate products that are seeming to the yields of human productions.
Thus, these two angles (angle AI) and (angle IP) intersects at the radius of a circle, where both combat for a particular protection.
AI was able to come into contact with IP while on its itinerary of exploring and expansion across several fields of human endeavour. Its contact with IP is best portrayed in the following illustrative instances:
In 2016, a group of researchers unveiled a portrait titled “The Next Rembrandt,” an AI generated artwork that had analyzed thousands of works by the 12th century Dutch artist ‘Rembrandt Van Riju,’ and had used that data to replicate a modern day rendition of his works.6.
In 2018, another painting created by an AI algorithm was sold at an auction for over $400,000. Still in 2018, an AI connectionist machine was able to invent two devices for use within homes.7 As a result of this generative capacity, it tunes in a confusion to distinguish the products of human creation and that of an AI.
Furthermore, AI’s foray into the field of IP also brought it into contact with databases, which are often protected under IP copyrighted works based on their unique selection and arrangements. It is pertinent to note AI’s ability to process and examine vast amount of databases for various purposes, which led to his intersection on privacy rights and data protection regulations.
Thus optimizing AI for data driven insights while respecting privacy rights presents an issue for determination in IP and legal frameworks.8
The ‘ Human Authorship’ Issue:
The pivotal issue in examination of this discourse, is the issue of authorship which begs the question “whether AI can be granted IP protection.” For IP to extend its arms for shelter, there are two major requirements.
Firstly, it must be accounted that the work was novel, not copied or unoriginal. Secondly, it must be shown that the work is a product of human’s intelligence. While AI can generate original products, it cannot fulfill the second part which requires the productivity of a human intellect.
This issue presents a two sides debate with the topic “whether AI can be granted with IP
protection since it can generate products exclusively.”
This issue becomes more evident in the context where invention is autonomously generated by AI without any human inventor assisting in such protection such as the case of child AI’s described above. It is this particular aspect that is in confliction with the existing IP framework.
One side of the debate doubts the possibility of attributing authorship to AI, since it makes use of technology tools deployed by humans to address a particular problem. Thus IP should stand firm on its requirement for human intelligence.
This side of the debate maintained that it can only the human persons that contributed to the intelligent and imaginative conception of an inventor that is recognized as the ‘inventor.’
They further pointed our that it is already the person who exercises independent and creative choices in producing a copyrighted work, even when technology tools are employed.
The opposing side to this debate questioned the extent of human creativity involved and asserted that AI’s capacity to generate content should be recognized, thereby posing challenge to the traditional notions which forms the very core of IP ownership.9
An illustrative description of this question of ‘the extent of human creativity involved,’ is the case of Google’s Deep Dream Creator, where the user’s rope is often limited to initiating the process through a simple button activation, while it is the AI that carries out the entire creative process. 10
Reacting to this, the law is settled beyond any peradventure that the word ‘author’ connotes only a human being. This is the position of several legislations and case laws. For instance the Berne Convention of Literary and Artistic Work, though does not expressly define an ‘author,’ but implied from it’s provisions indicate that an author must be likely a natural person.
Rule 19(1) of the European Convention, 11 defined a ‘human inventor’s by virtue of its requirements for the author’s family name, given name and other details not applicable to machine.
This position of the law is evident in the light of the case of EOA Maria Painer v. Standard
VerlogsGmbH & ors,12 where an author was defined as the individual who exercises
independent and creative choices, thereby expressing their unique personality through the work.
This definition of an author remains unbendable even in situations where technological aids are employed.
However, in any case where a human actor cannot exactly be identified, the authorship is vested in some person by whom the arrangements necessary for the creation of copyright are taken. This is present in the provisions of Section 108 of the Nigerian Copyright Act, 2023.13
The advent of AI technology has made it possible for technology to erode humans capacity to generate products. Thus bringing a confusion to discern the work of man that evolves from his intelligence, and the product of an artificial intelligence.
This led to the question that since AI has the capacity to generate products exclusively even without humans assistance, can it not be granted an IP protection. To this, will effect a change not only the IP Law framework, but also on the entire legal system and possibly other disciplines including ethics, morals and philosophy.
The simpler question to ask here is can AI have a copyright, or a patent rights, or rights of
industrial designs and the rest? What if a person tamper or interfere with a product generated by AI can he face any legal sanction under IP Law framework. Finally, can AI enjoy the IP Law protection.
While the provisions of our IP Law has not changed to admit the productions of AI, some
jurisdictions has equally change theirs admitting products generated by AI. This led to a debate whether AI can gain IP Law protection. The law is crystal clear that it cannot. This there is a great need to strike a balance between the two angles AI and IP.
1 The Intersection Between AI and IP by Blessing Nwankwo published at Mondaq connecting knowledge and people. https://www.mondaq.com
2 Mc Carthy, J. (1979) ‘Ascribing Mental Qualities to Machines’ in: Philosophical perspectives in artificial intelligence, ed. M. Ringle. Atlantic Highlands, N.J: Humanities press.
3 Chatbox chatGbt
5 Will Heaven, ‘AI is learning how to create itself (MIT Technology)’ j
6 Jee Charlotte, “A controversial artwork created by AI has just hauled in $435, 000 at auction” (MIT Technology Review 2018).
11 See: https://treaties.un.org/doc/publication/unts/volume%201065/volume-1065-i-16208-english.pdf
12 (2011) ECR I-1253; Case C-145/10, Opinion of AG Trstenjak, para 121.
13 See also Section 9.3 of US CDPA 1988 , Section 5(2) © of the Copyright Act 1994 of New Zealand31 as well as
Article 21 of the Irish Copyright and Related Rights Act 2000.
About the Author
Okafor Michael C. is a penultimate student of law at Chukwuemeka Odumegwu Ojukwu University Anambra State, Nigeria, with a penchant for learning about legal studies, legal writing, advocacy, and leadership.
He has an ardent interest in Constitutional Law, Criminal Law, Industrial Law and Intellectual Property Law. Following his interest on these areas of law, he has authored several publications, published at the Voice of Law blog, Legal Scribes Club gazette and the Legal Nuggets Intiative blog. He equally has several other unpublished articles outside the aforementioned areas of law.
He has interest in advocacy and legal drafting and litigation and he is currently an intern at Dr. Onyechi Ikpeazu (SAN) chamber Onitsha.