The intersection of AI and IP: Its Impact and the Legal Aspects

A. THE INTRESECTION A(I)P

In today’s world where technology has taken over its dominance in each and every sector of the modern society. The depth of knowledge to understand its relevance and its impact in our day-to-day life actions becomes very significant. The use of technology is crucial and very useful to stay updated with the recent global trends of the world. While there are certain things that technology has no stake over and is purely human driven but the extent to it is quite limited. Living in such an era depicts the blurring difference between the human creation and the one done by Artificial intelligence. The role of Artificial intelligence becomes very significant since the future of it is tend to replace the human tasks and are more well equipped with complex decisions involvement.

In contemporary times, the market and the industrial workplace shows the importance of having ownership of Intellectual Property (IP). To claim the ownership in any segment be it business or in any individual capacity the IP ownership becomes significant. This significance of ownership can be availed to extend entities that are not generated by humans such as those developed by Artificial Intelligence and software algorithms can they be used to create statutory protection by Intellectual Property stand out to be a major question. This article tries to unlock the knowledge of the intersection between the artificial intelligence and its legality over the Intellectual property ownership. It also stands out to show its contemporary position nationally and internationally to have a better segmented idea on it.

B. ARTIFICIAL INTELIGENCE AND IT’S IMPACT ON IP

The literal meaning to artificial intelligence would be the information that is artificially generated, something that is not generated by human is deemed to be one so. The artificial intelligence was formed by John McCarthy back in 1927, he was an American computer scientist. Now, this formed Artificial intelligence has its uses in transportation, industry, entertainment and overcoming various human generated skills by the machines.

The development of Artificial intelligence has proved to be useful and has opened new opportunities for each and every sector. With times the uses of AI have also spread to the legal aspect and specifically the area of intellectual property. As AI has its own capability to generate information these are usually generated though intelligence process such as reasoning, machines etc. These generated content posses a challenge to the IP sector landing a question of ownership and authorship of the works that are generated by AI. Since now it is generated by AI the question to owning it and directing the system of it, the content created by it, its software its who is the authorized person to claim it becomes of major relevance. Usually, the ownership relies to the person creating it and is the owner of it but in regard to AI the ownership is different.

The creation by AI also raises certain copyright issues, as it can be easily reproduce copyrighted materials such as images, text, videos and music etc. AI generated content usually raises concerns and questions of copyrighted works. The jurisdiction of various countries have made their laws accordingly to have certain proclamations of their own. In India too, the legislation has created laws for it accordingly for which the given submissions are stated below.  The AI generated content also depicts concerns of data privacy and security issues for safeguarding the intellectual rights. Therefore, the impact of AI on IP has been immense with time.

C. LEGAL STANDPOINTS OF INDIA

The Intellectual property laws in India do not have explicit provisions that recognize granting the ownership to various software and algorithms that is created by AI but there are still some provisions that are present in the Indian legislation that recognizes few of it. One of them is the Copyright Act of 1957, it usually recognizes the work generated by the computer and the one who generated it to be the owner of the created work. However, according to a particular section of Section 2(d)(vi) of the Indian Copyright Act, 1957[1] the software or the AI system that is the counterpart, it cannot be regarded with an ownership tag by any of the individual.  In case of Navigators Logistics Ltd vs Kashif Qureshi & Ors (2018) [2]the delhi high court rulings stated that the computer-generated list cannot be  by protected by the copyright as the human creativeness is absent there.

Different act that includes the Patent Act, 1970, and the Design Act, 2000 it does not acknowledge any of the provisions that recognize a programmer or developer to be the creator or the owner of the innovation that is usually the result generated by AI or the algorithms. When human involvement is absent and the innovation is the exclusive product of the software’s efforts, the issue is made worse. A growing number of people are realizing that, in order to preserve a vibrant and dynamic innovator ecosystem, formal intellectual property rights should be granted to these developers—even if they do not own the software itself—through clear legal provisions, given the current wave of innovation and technical advancement. The section 2(1)(p)[3] and 2(1)(t) [4]of the Patents Acts clearly state that the word “person” is essential to be a patentee.

Similarly in one of the landmark case of M/S Kibow the Delhi High court stated that AI systems cannot be officially registered as the proprietor of a trademark. The court also emphasizes that the eligibility crreitia to come under the Trade marks act 1999 is by a human being only and since it is generated by AI or a software the eligibility discards here itself and cannot be a proprietor of a trademark.

The Digital Personal Data Protection Act passed in 2023 also forbids the creation of any media, information, or content that is not accessible to the general public. It is evident from this and the language of the Copyright Act that no one may utilize any intellectual property without giving due credit to the original creator. Whether this also applies to the content generated by AI is still a question to answer by the judiciary. In India, the IP patent laws are questioned at high levels. The lack of clarity to the interpretation by the judiciary is crucial. The present interpretation is only limited to ideas and content by humans and AI however, a the technical aspect is not taken into consideration.

D. LEGAL FRAMEWORKS ACROSS GLOBAL

The legal arena for different countries in sector of AI and IP id growing gradually and more opportunities and increasing for the same. The key aspects to the global landscape would be as follows in countries like USA, EU and Japan.

I. USA

The legal framework for AI and intellectual property in the US places a strong emphasis on the necessity of human interaction for protection. Works that are solely AI-generated without human involvement are not eligible for copyright protection, according to U.S. Copyright Office regulations. Only works incorporating considerable human ingenuity are.​

In a similar vein, applications for inventions made entirely by AI are rejected by the U.S. Patent and Trademark Office, which demands human inventorship for patents. The conflict between intellectual property rights and AI research is highlighted by legal issues, such as those involving the unauthorised use of copyrighted content to train AI models.​

Furthermore, the ethical application of AI is being addressed by US policy more and more, with a focus on openness and respect for intellectual property rights in the creation of AI systems.​

II. EU

The copyright system in the EU is intricate and made up of numerous directives and laws. Although AI-generated works are not specifically covered by EU law, AI outputs that do not involve a significant amount of human creativity may not be eligible for copyright. Only works created by humans are eligible for copyright protection, according to member states like Germany and France, though this view may change as further legislative and policy changes are made.​

III. JAPAN

Japan takes a two-pronged approach to AI legislation, encouraging the use of AI while also managing risk. Its regulatory structure, which permits flexibility and innovation, consists of sector-specific legislation and nonbinding guidelines as opposed to general regulations. Japan’s copyright rules typically involve human intellectual production, which may bar the protection of works that are solely artificial intelligence (AI) generated. To stay up with AI developments, Japan’s agile governance model, however, encourages constant communication and upgrades.​

E. CONCLUSION

Creative, innovative, and intellectual property domains have all seen profound transformations as a result of generative AI. Like in many other nations, India must quickly address and modify the current intellectual property rights (IPR) framework due to emerging complexities and issues, especially in the areas of copyrights and trademarks. Encouraging an atmosphere that supports AI-driven innovation is just as vital as protecting the rights of creators and innovators.

Changes to India’s copyright and trade mark laws should focus on clearly defining the terms authorship and ownership for AI-generated works, addressing the originality standards for these works, establishing precise protocols for handling AI-related copyright infringement, and offering advice on fair use in the context of AI under the Copyright Act of 1957. The Trade Marks Act of 1999 [5]should simultaneously define the function of AI in trademark registration and make clear the uniqueness and protectability of trademarks generated by AI.

India can take the lead in the global AI scene by striking a balance between innovation and protection. India can secure its future in the rapidly changing field of intellectual property by promoting innovation, entrepreneurship, and economic expansion while defending the rights and interests of its creators and innovators. An adaptable IPR system will be the cornerstone of India’s growth in this dynamic field of generative AI, as it continues to transform our environment.

Author : Dimpal Rathod, a Student at National Law Institute University, Bhopal, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD

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[1] Indian Copyright Act 1957,  s 2(d)

[2] Navigators Logistics Ltd. V Kashif Qureshi &Ors.[2018] 254 DLT 307(Delhi HC)

[3] Indian Patent Act 1970, s 2 (1)

[4] Indian Patent Act 1970, s 2 (1)(t)

[5] The Trade Marks Act of 1999

Impact of AI on Trademark Law: Recent Developments and Future

Introduction

In this rapidly changing world of Intellectual Property law, artificial intelligence is transforming trademark law by challenging long-held beliefs. The intersection between trademark law and artificial intelligence providing excess to opportunities and challenges, making a deep understanding of both present developments and the potential long-term effects. Artificial Intelligence has transformed trademark management processes by offering exceptional levels of efficiency and accuracy in work such as trademark monitoring, enforcement and research. These technologies carry on to proceed at a never-before-seen pace. Trademark law experts can efficiently see conflicts and infringement by the use of artificial intelligence. AI inspired solutions that facilitate accurate browsing of long databases. However passionate digital platform observation given by AI powered real time brands monitoring solutions enables trademark owners to safeguard their companies in a progressively connected world However, these types of evolutions also raise challenging legal issues, such as how to resolve legal ambivalence, who is liable for trademark infringement when AI creates the brand, and larger ethical and legal repercussions. In light of this, as AI keeping up to transforming the world of trademark law. It is imperative to look at recent legislative and legal changes as well as possible future challenges and opportunities.

The Development of AI in Trademark Administration

Artificial intelligence (AI) has transformed traditional trademark management techniques by providing previously unheard-of levels of efficiency and accuracy. Let’s examine the salient features of the development of AI in trademark management:

• AI-Powered Trademark Searching: This innovation has completely changed the field of brand protection. With unprecedented speed and accuracy, trademark practitioners may now do thorough searches across enormous libraries of already-registered trademarks and other data. Artificial intelligence systems are highly skilled in discerning minute resemblance and variations among the trademarks, making it feasible to quickly identify the possible disputes. This functionality reduces the chances of unintentionally infringing the already-registered trademarks while also streamlining the trademark clearance process.
• Real-Time Brands Monitoring: Proactive brands security has now entered a new phase with the introduction of AI brand monitoring technologies. In order to find out the any trademark infringements in real-time, these systems continuously scan a variety of online venues, such as social media networks, e-commerce websites, and digital marketplaces. Trademark owners may quickly detect unlawful usage, counterfeit goods, and brand dilution by utilizing artificial intelligence (AI), which enables prompt intervention and enforcement actions. Maintaining brand integrity and stopping illegal activity on digital platforms require real-time brand monitoring.
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  Expanded Enforcement skills: Thanks to AI technologies, trademark owners can now successfully encounter infringement by having access to expanded enforcement skills. Large amounts of data can be analysed by AI algorithms to find out trends in unlawful distribution, counterfeit production, and trademark infringement. Furthermore, the automation of enforcement procedures, including the issuance of takedown requests, cease-and-desist letters, and court filings, is made possible by AI-powered enforcement tools. AI helps trademark owners to spend resources more effectively and resolve trademark disputes more quickly by automating repetitive operations and streamlining enforcement efforts.

Obstacles and Legal Matters to Consider:
1. Liability Attribution for Trademarks Generated by AI:
In trademark law, determining culpability for AI-generated trademarks is a major challenge. When AI systems generate trademarks on their own without human assistance, ownership and accountability issues come up. In order to create frameworks that fairly distribute culpability among AI developers, users, and the AI systems themselves, courts must address agency and accountability issues.
2. Ambiguities in the Trademark Infringement: As an AI-generated material proliferates, conventional ideas of trademark infringement become more nuanced. It gets harder and harder to tell the difference between authentic works and automated work when AI algorithms produce logos, slogans and other type of trademark-related materials. The challenge for courts is to modify the current legal frameworks to take into account the subtle of AI-generated trademarks and provide precise standards for infringement.

3. Ethical and Regulatory Implications: Adding AI to trademark law creates more ethical and regulatory issues than just the legal ones. Concerns around the algorithmic bias, data privacy, and the moral of the application of AI to intellectual property management must be addressed by stakeholders. The duty of creating rules and regulations to guarantee the ethical development and application of AI technologies within the trademark ecosystem falls to regulatory authorities
4. Human Involvement Requirements: Historically, trademark law has mandated that people be present during the trademark invention and registration process. But as AI systems advance, it gets harder to determine how much human involvement is required to qualify a trademark. To what degree AI-generated trademarks should be eligible for registration and protection, courts and legislators must decide on this matter.

5. Preservation of Consumer Trust: Concerns concerning the preservation of consumer trust are raised by the increasing use of AI in trademark administration. There is a chance of mistakes or oversights when AI algorithms are employed to automate processes like trademark monitoring and searching, which could erode customer trust in the authenticity of trademarks. In order to keep customers’ faith in the brand, it is imperative that AI-driven procedures are transparent, accountable, and accurate.

6. International Harmonization: Reaching international harmonization is difficult due to the international scope of trademark law and the quick development of AI technology. Attempts to provide uniform norms and guidelines for AI in trademark law are complicated by differently shaped legal frameworks and approaches to AI regulation in different countries. In order to enhance international mutual recognition of intellectual property rights, unify legal concepts, and ease information transfer, collaborative actions are required.

Future Repercussions and considerations:

• Development of Ethical AI: As AI continues to be important to trademark law, it is difficult to ensure that AI is developed ethically. The ethical use of AI technology, taking into account factors like algorithmic bias, neutrality and transparency must be given top preference by the stakeholders. In Trademark supervision, we can reduce possible dangers and can preserve equity and justice by encouraging the moral AI development techniques.
  
• Continuous Monitoring and Adaptation: Keeping up with the latest developments in trademark law requires constant observation and adjustment as AI technologies advance and new difficulties appear. Trademark experts need to be on the lookout, always evaluating how AI is affecting trademark management procedures and modifying their plans as necessary. Trademark experts may maintain the integrity of intellectual property rights in the digital era and successfully traverse the ever-changing field of AI in trademark law by remaining vigilant, adaptable, and knowledgeable.
• Regulatory Frameworks: As AI becomes more and more prevalent in trademark law, strong regulatory frameworks that both handle new issues and promote innovation are required. Legislators must work with technologists, legal professionals, and business stakeholders to pass laws that give clarity on matters like data protection, liability attribution, and AI governance. Regulatory systems can encourage responsible behaviour by defining precise norms and principles.
• Adaptation and Innovation: To successfully traverse the transforming world of artificial intelligence in the trademark law, trademark experts must hold adaptation and innovation. To fully utilizing the AI while managing trademark portfolios, interaction with AI technology, ongoing learning, and the implementation of better practices are crucial. Trademark experts can improve brand safety efforts and streamline trademark management procedures by excepting creative practices and remaining up to date with technology advancements.
  

Cooperation and Knowledge Sharing: To successfully managing the critical issues raised by AI in trademark law, collective methods and knowledge-sharing programs are crucial. It is important that stakeholders from the fields of academics, government, industries and civil society unite in order to share best practices, perspectives, and work together in research and development projects. By uplifting cooperation and information exchange, we might all work together able to solve new problems, stimulate creativity, and enhance the ethical use of AI to trademark management.

Conclusion  

In summary, the incorporation of artificial intelligence (AI) into trademark law signifies a significant change in the intellectual property environment, characterized by both revolutionary possibilities and complex obstacles. Recent advancements have demonstrated how AI can improve trademark administration by facilitating effective searches, providing real-time monitoring, and improving enforcement capabilities. But these developments also bring with them difficult legal issues, such as attribution of blame disputes, unclear trademark infringement claims, and wider moral and legal ramifications. In order to effectively navigate the changing trademark landscape going forward, proactive adaptation and collaboration are essential. Stakeholders need to plan ahead for technology breakthroughs, strike a balance between innovation and intellectual property protection, and encourage the development of ethical AI.

Through the implementation of cooperative strategies including as international harmonization initiatives, interdisciplinary cooperation, and stakeholder engagement, the trademark ecosystem can effectively tackle the diverse issues raised by artificial intelligence (AI) while optimizing its potential advantages. Ultimately, parties involved may guarantee that trademark law continues to be strong, equitable, and successful in protecting intellectual property rights in the digital era by embracing responsible innovation and respecting the values of openness, accountability, and fairness.

Author : Astha Sharma, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.
 

Bibliography

• Lee Curtis, a. R. (2020, june ). Trademark Law Playing Catch-up with Artificial Intelligence? Retrieved from WIPO MAGAZINE: https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html
• Wills, K. (2022). AI around the World: Intellectual Property Law Considerations and beyond. Journal of the Patent & Trademark Office Society, 186.
•  Batty, Rob, Trade Mark Infringement and Artificial Intelligence (August 16, 2021). New Zealand Business Law Quarterly (Forthcoming),http://dx.doi.org/10.2139/ssrn.3978248^[1]
• Moreland, Anke and Vieites Novaes de Freitas, Conrado, Artificial Intelligence and Trade Mark Assessment (October 29, 2019). Moreland, A. & Freitas, C. (2021), Artificial intelligence and trade mark assessment, in Hilty, R., Liu, K-C. & Lee, J-A. (eds.), Artificial Intelligence & Intellectual Property, Oxford University Press, p. 266 – 291, Available at SSRN: https://ssrn.com/abstract=3683807
• Gangue, Dev S., Eye, Robot: Artificial Intelligence and Trade Mark Registers (October 10, 2019). Forthcoming in N. Bruun, G. Dinwoodie, M. Levin & A. Ohly (eds.), Transition and Coherence in Intellectual Property Law, (Cambridge University Press, 2020),  https://ssrn.com/abstract=3467627

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Machine, Interrupted: Should works created by AI be given Copyright Protection?

Introduction:

The dominance of AI in the contemporary world is such that if it were to disappear into thin air one day, mankind would find itself devastatingly crippled. While it looks like Artificial Intelligence is on the track to obliterate human intervention; the things which it cannot do are those which come most naturally to humans. Morals, ethics, cultural dynamics, and social reasoning are just some things that cannot be fed into an algorithm. Programmers feed a set of rules into the computer, set the parameters till which it can run, and each time it is processed, the computer develops enhanced expertise by building up from what it has learned. Artificial Intelligence is being applied to work in diverse sectors, even those without arithmetic parameters. While it can be said that a machine would not be able to match the aesthetic style or the symphonic sequence made by an artist who has channeled years of experience into his work; an arts-collective company called Obvious in 2018, made ‘a generative adversarial network portrait painting’ titled – Edmond de Belamy, using AI. More recently, AI was also credited with restoring the edges of Dutch artist Rembrandt’s painting. Statutorily, it is clear that computer programs and software are protected under Copyright Law, but who exactly would own the copyrights to works generated using Artificial Intelligence? This question has been around since the influx of mechanically generated works and poses copyright issues to not only works of art, but also musical and literary works.

The Issue Of Ai Authorship:

In most traditional works, copyright protection is automatically afforded to the artists as soon as it is expressed in tangible form. So it is only fair that for works generated mechanically using artificial intelligence, the copyright protection would vest with the person who writes the algorithms which were used to generate the work. As simple as it seems, the process of creating an AI tool is not easily discernible. The programmers who write the algorithms only set the parameters within which it has to function, and once it is processed AI does most of its own work to generate the desired result. If this argument is to be purported, then AIs could just as easily be granted the same status as human authors since it satisfies the two most important requirements for copyright protection i.e. originality and creativity. Once it is clear that copyright protection may be given to AI, the next issue that would arise is ascertaining who exactly would be given the rights to such work. Since computer algorithms are sets of instructions that are independently processed and such algorithms are often scattered among various programmers. Additionally, AI also depends on several other external and internal determinants to function. The fusion in the work generated by AI is so unclear that it becomes difficult to ascertain where exactly they have been referenced from, or to determine each contribution in a quantifiable manner. 

In the curious case of Edmond de Belamy, the artwork was created by French developers and auctioned off in England. At the bottom, it was signed with a part of the algorithm code that was used to create it, to perhaps match the style of a conventional painting. The portrait was created using GAN- something that was developed by an independent researcher called Ian Goodfellow in 2014. The code for the program was borrowed from a student called Robbie Barrat who posted them to the popular code-sharing website- GitHub. The case in question here has three elements to it- the first being the artwork itself, the second is GAN and the third one is the algorithm used to train the GAN. Since each of these elements owes its origin to a different creator, the copyright implications on works generated combining all three would be almost too difficult to ascertain. In another instance, Artificial Intelligence helped restore the missing edges of Rembrandt’s painting called The Night Watch. The edges of the original painting had been trimmed to fit in the city halls and have since been restored by using AI tools. The machine was trained to learn the Baroque style of Rembrandt’s work and also referenced an original copy of the full painting made by Gerrit Ludens. The digital restoration resulted in not only an off-center perspective which was originally intended by Rembrandt but also attracted high praise from art critics coming close to what it could have been if it were never cut-off. The underlying principle in most of these AI tools used for generating artwork is that they can be programmed to pick up and build upon what already exists. It may be trained to mimic the style of a certain painter, emphasize certain brush stroke techniques, embody certain patterns and shapes, or encapsulate all of it in the same work. This ensured that there remained a touch of human intervention and control over the machine. In all of the above instances, the works continue to exist in the public domain, be it owing to the expiry of copyright protection or the total lack of it.

A Case For Ai Authorship & Conclusion

It is clear that any work produced by AI, whether literary, musical, or artistic, is not devoid of its own input. In the Feist Publications case, the US Courts held that creative choices visible in selection and arrangement were necessary to generate sufficient originality to warrant copyright protection.[1] The working of an AI Tool designed especially for creating art, the creativity in the result is ensured by the incidental extraction and arrangement. In Bleistein, v. Donaldson Lithographing Co., it was held that the measure of copyright was not the end-use or aesthetic value of the work, but rather the introduction of a unique element by the author. [2] Every new element introduced by AI into the resultant artwork can be deemed as an expression of its artificial personality. With the ingress of this element of its personality, even though artificial, works produced by AI become unique. In Alfred Bell & Co. v. Catalda Fine Arts, Inc. the Court while discussing engravings, found originality in “distinguishable variations” from the original public domain works. [3] The same can be said about works produced by AI, as anything with substantial similarity could be considered as an infringement but distinguishable variations combined with random extraction and rearrangement would make the work qualify the threshold for creativity. As observed in the Google Books case, it can be suggested that the use of “copyrighted works for the non-expressive purpose of training AI models amounts to fair use”. It is noteworthy that Japan has amended its copyright laws and included “exemptions of the use of copyrighted works for machine learning”.[4] With both creativity and uniqueness garnered through random extraction, granting copyright protection to AI would only be logical as it seems to satisfy the most basic requirement for copyright protection. 

Author: Divya Singh, Student at School of Law, KIIT University, in case of any queries please contact/write back to us at via email chhavi@khuranaandkhurana.com &  IIPRD

References:

  [1] Feist Publications v. Rural Telephone Service Co., 499 U.S. at 348.

[2] Bleistein, v. Donaldson Lithographing Co 188 U.S. 239 (1903).

[3] Alfred Bell & Co. v. Catalda Fine Arts 191 F.2d 99 (2d Cir. 1951).

[4] Karen Robinson, “Copyrights in the Era of AI”, Adobe Blog, February 27, 2020, available at: https://blog.adobe.com/en/publish/2020/02/27/copyrights-in-the-era-of-ai.html#gs.opdukw (last visited on June 30, 2022).