The Nature of Intellectual Property Rights for Works Produced by Artificial Intelligence

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By Israel Olawunmi

  1. INTRODUCTION

Everyday, we witness different kinds of developments in all facets of human life. We are at a point in history where technological innovations continually shape and retool our activities and interactions. We are in an age of artificial intelligence; a phase where machines are now enabled to perform tasks exclusively carried out by humans. Artificial intelligence now allows the simulation of natural intelligence in machines, that are programmed to learn and mimic the actions of human beings. These machines are built and equipped to effectively learn with experience to perform human-like tasks and even adjust to new inputs daily. Computers/robots are now programmed to perform problem-solving and decision-making functions. It is no gainsaying that artificial intelligence has revolutionized technology in almost every industry and keeps solving a wide range of problems facing mankind. Artificial intelligence by each day is gaining prominence, significance, and relevance worldwide. It is safe to say artificial intelligence has taken over some jobs requiring human effort to the point that there is even no need for human input anymore. Every new technology poses different challenges for the concept of the intellectual property rights owner. Traditionally, only humans can own intellectual property rights over their creation, innovation or invention, however, there is an ongoing debate globally as to the legal status of works created by artificial intelligence and ownership of the intellectual property rights. Is it possible for a machine to own intellectual property rights on a work produced by it? This work aims to examine and address this question and other incidental matters.

2.  WHAT IS ARTIFICIAL INTELLIGENCE?

Artificial intelligence, sometimes called machine intelligence, has now become a manifest and inextricable part of our lives, as it enhances the speed, precision and effectiveness of human efforts. Arguably, the term ‘artificial intelligence’ means different things to different people, as there is no uniformly agreed or accepted definition as to what the term is. Artificial intelligence presupposes the activity of making machines intelligent, it suggests the ability of a computer-controlled robot to perform activities that are ordinarily, typically and exclusively carried out by human beings. The phrase ‘artificial intelligence’ was first coined by Professor John McCarthy, Professor of Computer Science at Stanford University,  in 1956 at a conference at Dartmouth College, New Hampshire, USA, where he spoke on the subject to advance the proposition that machines can truly think.[1]To McCarthy, artificial intelligence is the development and use of machines to execute tasks which usually require human intelligence.[2] Notably, Vannevar Bush in 1945 had predicted there would be a  machine able to rapidly process data and bring up people with specific characteristics or get images as requested.[3] Furthermore, English Mathematician, In 1947, Alan Turing, who played a vital role in breaking the German Codes during the Second World War, contended there can be machines that can learn from experience, and that the possibility of letting these machines alter their instructions provide a mechanism for these things.[4] In 1950, Turing published a paper on how machines can simulate human beings and the ability to do things, including playing chess.[5] In the same year, Turing proposed what is known as the ‘Turing Test’, which essentially posits that the artificial intelligence entity must be able to hold a proper and rational conversation with a human agent. The test assumes that a computer that is indistinguishable from a human being has shown that machines can think.

Ever since, there have been advances in search algorithms, machine learning algorithms, and integrating statistical analysis into understanding the world at large. The two key components of artificial intelligence are machine learning and deep learning, and artificial intelligence is best described as ‘deep supervised machine learning’.[6] With machine learning, the computer does not require step-by-step instructions to arrive at an output. The machine ’learns’ by itself to recognize patterns in data. Based on these patterns the machine or the hardware takes informed decisions just as a human would. The keyword here is cognition.[7] Just as human growth is defined by these four cognitive mental functions of perception, learning, memory and thinking, so is artificial intelligence. The computer when allowed to learn cognitively, can handle, process and analyze a large number of unstructured data sets. Artificial intelligence is a field of study that seeks to explain and emulate intelligent behaviour in terms of computational processes.[8] Artificial intelligence highlights the importance of emulation and behaviour by machines. In summary, artificial intelligence simply means tasks that can be performed by computers/machines without the need for human intervention. Artificial intelligence has in our world today taken over roles exclusively reserved for humans and significantly impacting human interaction generally.

From manufacturing robots, web searching, email communications, shopping, music/movie recommendations, map directions, self-driving cars, smart assistants, conversational marketing bots, natural language processing, automated financial investing, mobile banking, speech recognition, fraud prevention, inter-team chat tools, to social media monitoring and so on, artificial intelligence is helping man live a more meaningful life devoid of hard labour. Technologies such as drones, robots, Google Assistant, Alexa, Siri, Watson, Cortana, Bixby, Pager, Waymo, Roomba, iRobot, Grammarly, and Numeria are common artificial intelligence examples that human beings worldwide interact with regularly for carrying out different functions.

3.  INTELLECTUAL PROPERTY RIGHTS AVAILABLE TO WORKS CREATED BY ARTIFICIAL INTELLIGENCE 

Frontier technologies come in different moulds, and they provide ample, viable, and great opportunities for economic growth.[9] The law does not aim to stifle creativity hence, there is a need to ensure that the intellectual property systems globally admit innovations for the smooth running of intellectual property administration. Though not human beings, artificial Intelligence even without human assistance, now produce literary, musical, journalistic, artistic and all sort of creative and inventive works. Sophia, a humanoid robot produced the world’s first non-fungible token (NFT)-based digital painting, which sold for $688,888.[10] The Device for the Autonomous Bootstrapping of United Sentience (“DABUS”), developed by Missouri physicist, Dr Stephen Thaler, without human intervention invented an improved beverage container and a neural flame device used in search-and-rescue-missions.[11] A short novel written by a Japanese computer program reached the second round of a national literary competition.[12] A portrait of Edmond de Belamy was created by a computer and was auctioned for $432,000.[13] The ‘Next Rembrandt’ is a 3D printed painting made by a computer, using the data of great Dutch painter, Rembrandt Harmenszoon van Rijn. It was created using deep learning algorithms and facial recognition techniques.[14]

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With these copious examples cited, it is crystal clear that artificial intelligence has permeated all sectors, hence, change is seemingly in the wind. It now becomes expedient to explore the intellectual property rights available to incentivize works created by artificial intelligence, and innovations. Ideally, the author or inventor of work enjoys intellectual property rights, but there is a challenge posed by works created or invented by artificial intelligence. The big question which is the meat of this work, however, is whether a non-human can be termed an inventor and enjoy the attendant intellectual property rights. For instance, in the course of a contract of employment, where an employee is employed to make an invention, the employee in this regard is the true inventor whilst the employer is the statutory inventor.[15] In this case, the right to a patent in such an invention is vested in the employer.[16] In British Reinforced Concrete v. Lind,[17] an engineering draftsman instructed to design an unfabricated crane brake was held to hold a resulting patent on trust for his employer. Straying from this instance, artificial intelligence is neither a natural person nor an employee under a contract of employment.

In the event where an artificial intelligence unilaterally makes an invention, who can now be said to be the inventor, when according to intellectual property law, only a natural persons can be termed an inventor? Where there is an invention by an artificial intelligence without human intervention, there is the question as to whether the artificial intelligence itself can file for the relevant intellectual property right. Can an artificial intelligence share joint-inventorship with a human being? Conferring legal personality on artificial intelligence is conferring legal rights and obligations on it. In the event of an infringement of intellectual property rights, who will be suing, the artificial intelligence or the human principal? In the event of the commission of a civil wrong or crime, either by the artificial intelligence independently or in conjunction with a human being, will the artificial intelligence be said to bear civil or criminal liability or its owner?[18] And what will be the appropriate means of enforcement in this instance? These and more spur the global discourse as to whether or not extant intellectual property legislations worldwide should incorporate or admit the intellectual property rights of artificial intelligence inventions.

The future of the world is digital, the debate as to awarding intellectual property rights to these machines is crucial in aligning with our reality of a technological revolution,  and the evolving influence of artificial intelligence. Assuming without conceding these machines have the intellectual property rights to works created by them, the rights available to them will mainly be patent and copyright.

4. THE POSITION IN THE DIFFERENT JURISDICTIONS 

The possibility of artificial intelligence claiming and owning intellectual property rights in its work or invention vary in the different countries of the world. Below is what obtains in select countries:

  • NIGERIA: The right to patent,[19] or copyright,[20] in an invention or work is vested in a legal person (both natural or artificial, as the Copyright Act expressly includes companies.), and not an entity without legal personality, as artificial intelligence. The use of ‘person’ in the different statutes excludes artificial intelligence from claiming or enjoying intellectual property rights on computer-generated inventions or works.
  • NEW ZEALAND: Copyright on works authored by artificial intelligence in New Zealand belongs to “whoever has undertaken the necessary provisions for the creation of the work.”[21] This can be interpreted to mean copyright in a work generated by a machine will not be granted to the artificial intelligence but the maker of the machine.
  • UNITED STATES OF AMERICA: In Lola v. Skadden,[22] the US Court of Appeals for the Second Circuit held that tasks that could otherwise be carried out entirely by a machine cannot be regarded as engaging in legal practice. With respect to copyright, in the United States, non-human entities have no protection for any work created by them. The Copyright Office Compendium states that, “the term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being.”[23] In Feist Publications, Inc v. Rural Telephone Services Company,[24] the Court held that the right of authorship will only be protected when it is created by a human being. Also, in Naruto v. Slater,[25] a British wildlife photographer, David Slater, travelled to Indonesia to photographs of local macaque monkeys. While at it, he placed his camera on a tripod and adjusted the camera setting deliberately to allow it access to the monkeys. In the course of it, a female macaque monkey, named ‘Naruto’, took selfies of itself. Slater then went on to print and use numerous copies of the pictures. The People for the Ethical Treatment of Animals (PETA), an animal rights group, however, sued Slater on behalf of Naruto for infringement of copyright. A US District Court held that there was no copyright protection available to an animal as it is a non-human entity. This reinforces the point that under the current intellectual property system in the USA, artificial intelligence cannot acquire copyright for a work created by it. For patent, an inventor in the United States is an ‘individual’, or if a joint invention, the ‘individuals’ collectively who invented or discovered the subject matter of the invention.[26] In University of Utah v. Max-Planck-Gesellschaft zur Forderung der Wissenschaften,[27] the Federal Circuit held that companies or sovereigns cannot be named as inventors. The use of the word ‘individual’ in the American patent law strengthens the conclusion that an ‘inventor’ must be a natural person. As regards the inventorship of artificial intelligence, in Stephen Thaler v. Iancu, et al,[28] a United States Eastern District of Virginia Court held that DABUS or any artificial intelligence cannot be named an inventor on a patent application, as the use of ‘individual’ in the US Patents Act refers to a natural person. Though the Plaintiff argued that, allowing patents for artificial intelligence inventions will result in more innovations and help incentivize the development of artificial intelligence.
  • INDIA: Copyright in computer-generated work in India is vested in the person who causes the work to be created, hence, the human entity has authorship.[29] This provision, however, fails to address a computer-generated work independent of human contribution. In Rupedra Kashyap v. Jiwan Publishing House Pvt. Ltd,[30] the Court held that copyright can only be granted if there is an involvement of a human being in the creation of the work. The Court held in that case that, the authorship of a compilation of examination cannot be granted to a non-human entity. 
  • UNITED KINGDOM (UK): The Patent Act of the UK requires an inventor to be a natural person before an application for patent can be granted.[31] The Act provides that the inventor has to be a ‘person’ to be an actual deviser. This position was upheld by the UK Court of Appeal in Stephen Thaler v. Comptroller General of Patents, Trade Marks and Designs.[32] In this case, Dr. Thaler filed two patent applications naming DABUS as an inventor, which was rejected, since the inventor must be human. As regards copyright in the UK, copyright on computer-generated works is vested in the human being who carried out necessary arrangements for the creation of the work.[33]  Interestingly, section 178 of the UK copyright statute, and the Irish Copyright and Related Rights Act,[34] refer to a computer-generated work as a work generated by a computer in circumstances where the author is not an individual. The provisions of these Acts suggest that there can be a work created without human involvement.
  • AUSTRALIA: In Telstra Corporation LTD v. Phone Directories Co Pty LTD,[35] the Full Federal Court of Australia held that, for an original literary work, it is important to identify the human author. However, on 30th July 2021, the Federal High Court of Australia in Stephen Thaler v. Commissioner of Patents,[36] held that for the purposes of section 15(1)(a) of the Australian Patents Act, 1990, and section 3.2C(2(aa) of the Patents Regulation, 1991, artificial intelligence may be termed an inventor. The Court was of the view that the word ‘inventor’ is an agent noun, and an agent can be a person or thing that invents. In the words of Justice Beach, ‘We are both created and create, why cannot our creations create?’ So, on the patent application filed by Dr. Stephen Thaler, DABUS, or any artificial intelligence, though not a natural person can be described as an inventor in Australia. This judgment, however, has since been appealed to the Full Court, but will only apply to patents filed by artificial intelligence in Australia.[37]
  • SOUTH AFRICA: The patent law in South Africa does not provide an express definition of the word ‘inventor’. The Patent Act,[38] merely provides who may apply for a patent by stipulating, “an inventor or any other person acquiring from him the right to apply, or both the inventor and such other persons as those for patent qualified to apply in South Africa.” Furthermore, the Patent Regulation,[39] provides that a patent application shall be made pursuant to Form P1, and “where the applicant has acquired a right to apply from the inventor.” Stephen Thaler on the 17th July 2019 filed a patent application, identifying DABUS as an inventor in South Africa.[40] On 28th July 2021, the Companies and Intellectual Property Commission of South Africa granted the world’s first patent on an invention created by a machine inventor.[41] South Africa’s decision has not gone without criticism, however, it is believed to be a laudable step in addressing the gaps in intellectual property law as it affects inventions made by machines.
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5. CONCLUSION

The evolution of artificial intelligence has laid to rest the long-held belief that humans are the only source of creativity or innovations. The times are rapidly changing, artificial intelligence is engendering huge developments all over, and at a fast pace, gaining wide acceptance. The advent of artificial intelligence, however, has left the world on pins and needles, on the protection available to computer-generated works under the different intellectual property laws. This stems from the fact that, before now computers used to be mere tools to perform tasks, now these tasks can be autonomously done by these devices. We cannot continue to paper over the cracks, the future of the world is digital, artificial intelligence is the future, hence, a need to reexamine the existing laws to reflect the prevailing reality. The cliché that these machines are not natural persons can no longer be sustained owing to the traction artificial intelligence is gaining in our world today. The watershed witnessed in Australia and South Africa may just serve as a comprehensive catalyst to allow for the inclusion of artificial intelligence rights in intellectual property laws, both locally and internationally. The issue of rights and liabilities attributable to artificial intelligence on works and inventions must also be vividly addressed and spelt out.

Israel  writes from Lagos. He can be reached at olawunmiisrael10@gmail.com.

[1] Tin Huang, Christopher Smith, et al, ‘The History of Artificial Intelligence’ [2006], History of Computing CSEP 590A, University of Washington,https://courses.cs.washington.edu/courses/csep590/06au/projects/history-ai.pdf , 4 accessed 9 October, 2021

[2] Abisola Fayinka, ‘Adopting Artificial Intelligence to Law Practice in Nigeria: A Lawye’s Delight  or Dilemma?’ https://www.unilagreview.org/2019/04/01/adopting-artificial-intelligence-to-law-practice-in-nigeria-a-lawyers-delight-or-dilemma/ , accessed 9 October, 2021.

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[3] Vannevar Bush, ‘As We May Think’, (The Atlantic Monthly, July 1945), https://www.theatlantic.com/magazine/archive/1945/07/as-we-may-think/303881/ accessed 9 October, 2021

[4] B.J. Copeland, ‘Alan Turing and the Beginning of Artificial Intelligence’, Britannica,https://www.britannica.com/technology/artificial-intelligence/Alan-Turing-and-the-beginning-of-AI , accessed 9 October, 2021.

[5]Alan Turing, ‘Computing Machinery and Intelligence’,(Mind,1950) https://philpapers.org/rec/TURCMA, 433 – 460, accessed 9 October, 2021. In 1997, ‘Deep Blue’, a chess computer built by the International Business Machine Corporation (IBM) beat reigning world champion, Garry Kasparov, in a six-game match. https://spectrum.ieee.org/how-ibms-deep-blue-beat-world-champion-chess-player-garry-kasparov

[6] Gregory.C. Allen, ‘Understanding AI Technology’ (Department of Defense Joint AI Center, 2020) https://www.ai.mil/docs/Understanding%20AI%20Technology.pdf ,3-5 accessed 9 October, 2021

[7] Fredrick Jelinek, ‘Statistical Methods for Speech Recognition’, (MIT Press, 1998)https://mitpress.mit.edu/books/statistical-methods-speech-recognition accessed 9 October,2021

[8] Robert Schalkoff, ‘Artificial Intelligence: An Engineering Approach’, (Mc-Graw, 1990),2

[9] Frontier technologies examples include: artificial intelligence, big data, cloud computing, blockchain, 3D paintings, genetic engineering, internet of things (IoT), and so on.

[10] Aljazeera, ‘NFT ‘self-portrait’ by Sophia the Robot Sells For Nearly $700,00’(Aljazeera, 2021) https://www.aljazeera.com/economy/2021/3/25/nft-self-portrait-by-sophia-the-robot-sells-for-nearly-700k accessed 9 October, 2021

[11]Jonesday,  ‘When Innovation Invents: Artificial Intelligence Issues at the U.S. Patent and Trademark Office’(Jonesday, 2019) https://www.jonesday.com/en/insights/2019/09/when-innovation-invents accessed 9 October, 2021

[12] Eric Margolis, ‘The Day A Computer Wrote A Novel’(NewsRx, 2019), https://ideas.newsrx.com/blog/the-day-a-computer-wrote-a-novel accessed 27 September, 2021

[13] Jonathan Jones, ‘A Portrait Created by AI Just Sold For $432,000. But is it Really Art?’(The Guardian, 2018), https://www.theguardian.com/artanddesign/shortcuts/2018/oct/26/call-that-art-can-a-computer-be-a-painter accessed 10 October, 2021.

[14]Nicole Pickett-Groen, ‘The Next Rembrandt: Bringing The Old Master Back To Life’, (Dutch Digital Design, 2018) https://medium.com/@DutchDigital/the-next-rembrandt-bringing-the-old-master-back-to-life-35dfb1653597  accessed 10 October, 2021

[15] Section 2(1) and (4) Patents and Designs Act, CAP P2, Laws of the Federation of Nigeria, 2004

[16] The employee here, the true inventor however, is entitled to be named as the true inventor in the application or patent, and the entitlement in question cannot be modified by contract- section 2(3) Patents and Designs Act.

[17] (1917) 34 R.P.C. 101.

[18] Article 12 of the United Nations Convention on the Use of Electronic Communication in International Contacts provides that, a person (natural or artificial) on whose behalf of a computer was programmed should ultimately be responsible for any message generated by such machine.

[19] Section 2(1) Patents and Designs Act.

[20] Section 2(1)(i) Copyright Act, CAP C28, Laws of the Federation of Nigeria, 2004

[21] Section 5(2)(a) Copyright Act, 1994 of New Zealand

[22] Arps, Slate, Meagher & Flom, No. 14-3845 (2d Cir.2015).

[23] S 202.02(b) Copyright Office Compendium.

[24]  499 U.S. 340, 361 (1991)

[25] No. 16-15469(9th  Cir.2018)

[26] 35 United States Code, S 100(F).

[27] E.V. 734 F.3d 1315, 1323(Fed.Cir.2013)

[28] 1:20-cv-00903 D.I.33 (E.D. Va. April 6, 2021)

[29] Section 2(d)(vi) Copyright Act, 1957 of India.

[30] 1996 (38) DRJ 81

[31] Section 13(2) UK Patents Act. See also: Nippon Piston Ring Co Ltd’s Application [1987] RPC 120

[32] [2021] ECWA Civ 1374

[33] Section 9(3) UK Copyright, Designs and Patents Act, 1988. See also: Express Newspapers PLC v. Liverpool Daily Post & Echo [1985] 1 WLR 1089.

[34] Section 2(1) Copyright and Related Rights Act of Ireland, 2000.

[35]  (2011) 90 I.P.R. 1 (Fed Ct. (Aus) (Full Ct)

[36] [2021] FCA 879

[37] Philip Ormonde Fitzpatrick, ‘Commissioner of Patents Appeals Decision Allowing Artificial Intelligence As An Inventor’, (Lexology, 2021) https://www.lexology.com/library/detail.aspx?g=8c4b90dd-5595-4c84-810e-d544f9f4bea9 accessed 10 October, 2021

[38] Section 27(1) Patent Act of South Africa.

[39] Regulation 22(1)(d) of the Patent Regulations of South Africa

[40] Patent Application No: PCT/1B2019/057809.

[41] Sam Udovich, ‘Worldwide: Recent Developments in Artificial Intelligence and IP Law: South Africa Grants World’s First Patent For AI-Created Invention’,(Mondaq, 2021) https://www.mondaq.com/unitedstates/patent/1099064/recent-developments-in-artificial-intelligence-and-ip-law-south-africa-grants-world39s-first-patent-for-ai-created-invention accessed 10 October, 2021

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